Judgment K. Narayan, J. 1. Kishan and his two sons-Ratan Lal and Devendra stood their trial on charges under section 302 read with section 34 IPC in S.T. No. 490 of 78 before the Sessions Judge, Moradahad, Kishan and Ratan Lal were acquitted and Devendra was convicted under section 302 IPC and sentenced to imprisonment for life by judgment and order dated 18-12-1978. He has preferred this appeal. 2. The deceased in the case one Nanhey was resident of Kanjari Sarai and the accused also lived in another portion of the same house. The locations of their houses are shown in the site plan. On the North of this house and after a little lane or open space of land is a polish workshop, which according to the prosecution belonged to Nanhey and according to the defence to one Gupta Ji. The occurrence is said to be of about 3.15 p.m. on 30-6-78. The occurrence was alleged in the first information report in the form that the brother in law 'Sadhu' of the deceased Nanhey, namely, Pooran Lal had gone to see him and was sitting with the deceased in the northern polish workshop, Some noise was heard from the house of Nanhey, whereupon Nanhey went towards his house. A little later, noise of Nanhey was also heard, whereupon Pooran Lal, Rajendra, Ram Swarup and others rushed towards the house of Nanhey. Nanhey by that time was coming out of the house and was being chased by Kishan and his two sons-Devendra and Ratan Lal. Devendra held a knife and Kishan held a hammer. The three accused assaulted Nanhey with knife and Kishan also put the blows of hammer on the knife itself. In the meanwhile Om Prakash and Jagmohan sons of Nanhey also arrived but the accused made good their escape. Since the condition of Nanhey was serious, he was taken to the hospital, where though he reached alive Nanhey died and a report was sent. 3. The prosecution had examined as many as 11 witnesses during the trial. Out of these, the evidence of Dr. S.P. Uppal related to the post mortem examination and that of PW 7 Suresh Chandra, PW 3 constable Chandra Pal and PW 11 H.C. Harnam Singh related to the investigation etc. 3. The prosecution had examined as many as 11 witnesses during the trial. Out of these, the evidence of Dr. S.P. Uppal related to the post mortem examination and that of PW 7 Suresh Chandra, PW 3 constable Chandra Pal and PW 11 H.C. Harnam Singh related to the investigation etc. PW 2 Buddha Singh was the scribe of the FIR prepared at the dictation of Pooran Singh, the suggestion to him has been that the FIR was prepared at the police station in consultation with the police officials. Though he has denied the suggestion, it will be worthwhile to refer to certain things which do support the impression that there was some thing black in the bottom and the FIR was not the result of spontaneity. It was stated by PW 3 Pooran Lal that Buddha Singh had arrived in the District Hospital and he had dictated the FIR there. It was also stated by him that he had gone to Kotwali leaving Nanhey dead in the hospital. However, in his cross examination it was made out that Daroga who must have come to the District Hospital on receipt of some information from the Medical Officer who had conducted the medical examination of injuries of Nanhey Singh was already there. It was after the direction of the Sub Inspector to make the report that the report was lodged. It may not be as such of much value but withholding of that medical examination report and the report of the medical officer to the police regarding arrival of the injured Nanhey, is something which should not be lost sight of. It will gain weigh when we discuss the other omissions in the case. 4. The other evidence was of PW 3 Pooran Lal, PW 4 Smt. Phoolwati, widow of the injured PW 5 Rajendra, PW 6 Jagmohan Singh, and PW 9 Om Prakash. After considering the evidence of these persons as also other formal evidence mentioned above, the learned Sessions Judge came to the conclusion that the deceased was murdered by Devendra, who held knife. He did not consider the case proved against the other two accused and consequently he recorded the above mentioned order of acquittal for two. The main witness in the case has been PW 3 Pooran Lal and his statement has met certain peculiar behaviour. He did not consider the case proved against the other two accused and consequently he recorded the above mentioned order of acquittal for two. The main witness in the case has been PW 3 Pooran Lal and his statement has met certain peculiar behaviour. He had supported the case of the prosecution as mentioned above but when he made statement about the report to the police by the doctor and subsequent report by himself, the Public Prosecutor possibly considered him to be going beyond his hands. A request was made during cross-examination by the defence counsel by the Public Prosecutor for leave to cross examine him, and strangely enough he was allowed also. We will say that the conduct of both-the public prosecutor and the Judge in this behalf has been rather strange. A party who had called a witness can be allowed to put questions to a witness, which may be lawful in cross-examination alone, but that is always limited to certain conditions and Section 154 and 155 Cr.P.C. had to be kept in mind. Ordinarily the order of examination of a witness is that a witness is first to face examination in chief by the, party who called it and then cross-examination by a patty adverse to him and if need be re-examination (Section 137 of the Evidence Act). There is difference between the examination in chief and cross-examination. The leading question are not permitted in examination in chief but they may be permitted if need be by the Court under Section 154 Cr.P.C. but naturally weight, of that evidence is affected by such examination. Then again, the questions lawful in cross-examination have been mentioned under Section 146 of the Evidence Act, and they may be also for testing his veracity to discover who he is and what is his position in life or to shake his credit by injuring his character and the like. These questions cannot be asked by a party, who had called him and if such questions are put, the party who had called him himself is impeaching his credit and discrediting him for his evidence which will mean a negation of his evidence as well. Once a witness is called untrustworthy by the persons who had called him, there is nothing to be cared for in his statement as naturally adversary is impeaching his credit. Once a witness is called untrustworthy by the persons who had called him, there is nothing to be cared for in his statement as naturally adversary is impeaching his credit. Therefore, the very application of the public prosecutor that he desired to cross-examine the witness apart from being illegal and against the procedure at the stage, conveyed that the witness was not any more worthy of credit. The prosecutor it seems, in order to conceal the report of the medical officer, which was a bad impression in the case, attended to discredit the main witness but naturally no benefit can go to the prosecution for that. 5. The statement of PW 3 Pooran Lal in cross-examination that he saw Nanhey coming out leisurely from the main gate, followed by Kishan, Devendra and Ratan, again show that he had not seen anything or it was all concoction. If there was already scuffle inside the house and also noise for killing Nanhey was heard, he could not have come leisurely nor he would go westward unless he had to save himself from something. The witness has not been consistent in any of his statement. He did not name Ratan Lal in his examination in chief itself, in the examination in chief he had stated that the three accused were running after Nanhey and in the cross-examination he says that Nanhey was walking leisurely. He also stated that Kishan had given three or four hammer blows on the knife. This was not stated by him earlier-neither in the FIR which may be ignored as it cannot be said to be a statement nor in the statement given to the Investigating Officer. Apart from this omission the mere fact that three or four hammer blows were given would mean some time to be spent for it and naturally the others are not so far as to be unable then to reach the spot within that time. Furthermore where a knife is thrust into the body by force, ordinarily it cannot be taken out as is said to have been done in this case i.e. by merely withdrawing it. When a weapon remains in the body for even a few second the pressure of the blood gains in force and it is more difficult to take it out. When a weapon remains in the body for even a few second the pressure of the blood gains in force and it is more difficult to take it out. Possibly, the prosecution had realised that and in order to give desired thrust to the hammer so as to cut bone and reach plura, unusual force will be required and therefore, the prosecution added the theory of use of hammer, but they forgot that similar or more force would be needed for taking out the knife and for that they could not concoct anything. 6. On the contrary PW 4 Smt. Phoolwati, widow of the victim, has stated that only one blow of hammer was given on the knife. We agree with the trial court that failure to mention her name in the F.I.R. is not very material but the other factors i.e. omission in the form of holding of feet by Ratan Lal and failure to mention the use of hammer by Kishan Lal during investigation had some weight. It is one thing that she was bereaved for the loss of her husband but it does not mean that the other person is to be hanged for her bereavement alone. She could have said to the Investigating Officer that she may be interrogated a little later. The purpose of interrogation under section 161 Cr.P.C. has obtained light during various cases. In the original Code of 1898, the case of prosecution was to be disclosed to the accused on two occasions before it could be stated about before the sessions Judge. The Investigating Officer during investigation was required; to take down narration of the statement under section 161 Cr.P.C. and this was to be given to the accused at the time of cross-examination during the course of inquiry, The Enquiring Magistrate also recorded statements of the witnesses on oath. This was all to make it known to the accused as to what he has to face. It may be that the enquiry proceedings have been gradually reduced to mere supply of copy but that does not mean that the accused is to be taken by surprise at the stage of the trial itself. The deletion of inquiry has made it more onerous for the investigation to give better picture of the likely statements of the witnesses to the accused before the witness himself turns up in the witness box. The deletion of inquiry has made it more onerous for the investigation to give better picture of the likely statements of the witnesses to the accused before the witness himself turns up in the witness box. For obvious reasons it shall not serve any better purpose to refer various decisions in this behalf but we will like to record reference of a few decisions here, i.e. the cases of Shiv Sarnagat v. State, AIR 1953 Bhopal 21, Naryan v. State of Punjab, AIR 1959 SC 484 , State v. Birda, AIR 1957 Raj. 318 and in the matter of Rangaswami Goondan, AIR 1957 Mad, 508. In the last case, though, they all related to old Cr.P.C., with reference to the provisions of Section 207-A it was observed that it was to enable the accused to have all round picture of the case against him even at the commencement of the enquiry and In order to enable him to cross examine the witnesses on such defence, as he may set up and to avoid any delay which occurred formerly. The emphasis has to be on the right of the accused to have all round picture of the case against him before the evidence can be led. In the later years, this has developed after the decision in Tehsildar's case and in the Code of Criminal Procedure 1973 in the form of explanation to section 162 and it has been clearly provided, of course, subject to the circumstances of the case, that omission to State a fact may even amount to a contradiction, if it appears to be significant and otherwise relevant having regard to the context in which such omission occurs. The omission and differences in the matter of use of hammer, therefore, are fatal. The trial court has already acquitted Kishan and Ratan Lal for that but he has missed the idea that if that part of the evidence was rendered unbelievable, the evidence of the same witness on other parts would also be rendered doubtful and it will be more so for the reason that the knife could not be thrust to the extent it was done without use of hammer or extraordinary force. This in fact, will mean that the occurrence had taken place in some other manner and the, witnesses had not really seen it. This in fact, will mean that the occurrence had taken place in some other manner and the, witnesses had not really seen it. They were, thus, developing the case gradually as they came to know the injuries. PW 5 Rajendra has gone to the extent of stating that Kishan had given two or three blows on the waist of Nanhey. There is no such injury upon the person of Nanhey PW 6 Jagmohan had seated that four or five blows of hammer were given but only one had struck the handle of the knife. If it was so they must have left some mark of injury unless effort was made not to touch the body of Nanhey. In the cross examination he has stated that about five or six blows of hammer were given. PW 9 Om Prakash was examined to state that he reached the spot around 3.15 PM. and at that time Nanhey was running and Kishan, Devendra and Ratan Lal were chasing him and during that occurrence Ratan Lal held the legs of Nanhey, Devendra gave knife blow and Kishan gave hammer blow over the handle of the knife. This witness not only contradicts PW 3 Pooran Lal in the matter of running and working of the deceased, he also does not inspire confidence being a chance witness and futility of the theory of use of hammer. He has also been a witness for the police in other cases though he has tried to conceal those facts. It is one thing that a person has to bear evidence in court for or against the prosecution and that may not be very important but when a person tries to conceal those facts, does not deny because he expects the documents to be there and tries to take shelter of 'I do not remember', his testimony is rendered open to all doubt. Further if there is indication that the police has made effort in improving upon the case in any manner, the evidence of such witness is rendered still more doubtful. In view of the above observations, the conviction and consequent sentence of Devendra also cannot be maintained and seems to be misplaced. This appeal, therefore, succeeds. 7. The appeal is allowed. The conviction and sentence recorded by the trial court are set aside. The appellant shall stand acquitted. He is on bail. He need not surrender. In view of the above observations, the conviction and consequent sentence of Devendra also cannot be maintained and seems to be misplaced. This appeal, therefore, succeeds. 7. The appeal is allowed. The conviction and sentence recorded by the trial court are set aside. The appellant shall stand acquitted. He is on bail. He need not surrender. He bail and bonds are cancelled and sureties discharged. Appeal allowed.