Judgment Narinder Singh Rao, J. 1. Mohammad Murtaza and Mohammad imtiaz, the appellants, residents of Bhagalpur, stand convicted under section 304 Part II of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for five years each. Their co-appellant Jharu mistri has been sentenced to undergo rigorous imprisonment for three years under the same charge. Feeling aggrieved, they have preferred this appeal. 2. Abdul Samad, the deceased, was the father of informant alauddin (P. W.6), Md. Iqbal (P. W 3), Anisa Begum (P. W.4) and baby (P. W.5 ). All of them were living in mohalla Dari Khanjarpur, bhagalpur in March, 1982, ana even prior thereto. It appears that earlier to the occurrence Abdul Samad had borrowed some amount from the appellants, and subsequently a disputed had cropped up about its payment. 3. The prosecution version, in brief, is that on 16-3 -1982 at about 9 p. M. , when Abdul Samad was taking his evening meals, the appellants had arrived there. At that time, P. W.3 was away to the place of his work. After arriving, the appellants had indulged in exchange of hot words with Abdul Samad over the payment of loan amount. Then the appellants had started mahandling Abdul Samad by giving him slaps, fist and leg blow. s. P. W.5 had then rushed out of the house and fetched her brother P. W.3. Apart from inmates of the house, the occurrence was also witnessed by mohalladars like Naresh Rajak (P. W.1), Md. Quasim (P. W.2), Chander Pandit and Md. Hidayat. After committing the crime, the appellants had filed away. 4. The prosecution version further proceeds that as condition of abdul Samad was found somewhat serious, he was taken to the clinic of dr. S. K. Bhowmik (D. W.5 ). He had provided the first aid, and then referred him to Medical College Hospital, Bhagalpur. Abdul Samad was got admitted as an indoor patient in that hospital where he had ultimately breathed his last in the forenoon of 18-3-1982. Earlier, the police had recorded-Fardbeyan (Ext.4) of P. W.6 in the hospital on 17-3-1982. On its basis, the case was registered. After completion of the investigations, the appellants were charge-sheeted. 5. Out of nine witnesses examined by the prosecution, P. Ws.1 to 6 are the alleged eye-witnesses of the occurrence. S. I. Yamuna Prasad (P. W.8) had recorded the Fardbeyan (Ext.4 ). On its basis, the case was registered. After completion of the investigations, the appellants were charge-sheeted. 5. Out of nine witnesses examined by the prosecution, P. Ws.1 to 6 are the alleged eye-witnesses of the occurrence. S. I. Yamuna Prasad (P. W.8) had recorded the Fardbeyan (Ext.4 ). S. I. Sri Dhar Choubey (P. W.9) is the Investigating Officer. 6. Dr. S. K. Roy Choudhary (P. W.7) of Medical College, Bhaglpur, had conducted post mortem examination on the dead body of Abdul samad aged about 55 years, on 18-3-1982 at 3.30 P. M. and found the following injuries on the dead body :- (1) Bruise 2" X 11/2" on the left side of the forehead. (2) Right cubital fossa had extra vasation of blood. (3) Bruise 4" x 21/2" on the left temporal region. (4) Haemorrhage of brain. On dis-section of the brain, intra cerebral ! heamatoma was found on the right side. Blood clot was also present on lateral ventricle. Both sides of the heart, lungs, liver, spleen etc. were conjested. Injuries were ante mortem and caused by blunt weapon. Time elapsed since death was within 3 to 6 hours. Ext.3 is the post mortem report. 7 The appellants, in their examinations, had denied the prosecutions allegations, and stated that they were innocent. They had examined Ali mohammad, Rameshwar Rajak, Sadhu Yadav and Mohammad Maniruddin (D. Ws.1 to 4), in support of their defence plea that Abdul Samad was roughed up by unknown dacoits, and since their identity was not known, they had been falsely implicated due to suspicion. 8. After hearing learned counsel for the parties and going through the records, it is found that as the prosecution has remained unsuccessful in proving its case beyond all shadow, of doubts, this appeal deserves to succeed. 9. It has remained undisputed that Abdul Samad had received injuries whan was manhandled inside his house on 16-3-1982 late in the evening. There is also denying that he had expired when was an indoor patient in Medical College, Bhagalpur in the forenoon of 18-3-1982. Now according to prosecution, the appellants were his assailants. From their side, a case of denial simpliciter was put forward. The material question for determination is to see as to if satisfactory evidence is available on record for bringing home the guilt against the appellants. 10. Now according to prosecution, the appellants were his assailants. From their side, a case of denial simpliciter was put forward. The material question for determination is to see as to if satisfactory evidence is available on record for bringing home the guilt against the appellants. 10. The occurrence had taken place on 16-3-1982 at about 9 P. M. Although, members of the family of the deceased like P. Ws.3, 4, 5 and 6 had allegedly witnessed the occurrence, but none had thought in terms of reporting the same to the police that night or even till afternoon of the following day. None out of them had voluntarily gone to the police station. It is stated that the police had arrived on their own near Abdul samad on 17-3-1982 at about 5 P. M. , and then had recorded Fardbeyan of P. W.6 there. Even this is highly doubtful as to if that Fardbeyan was recorded at that time. The occurrence had taken in big city Bhagalpur and still the F. I. R. had reached the hands of the Magistrate as late as on 20th of March, 1982. What appears is that the assailants were unknown to the members of the family of Abdul Samad and the delay was utilised by the police in giving shape to the prosecution version. Here it deserves mention that neither in the F. I. R. nor in the court evidence of the examined P. Ws. even a word was stated about the vailability of any light at the spot. 11. P. W.3, the son of the deceased, had admitted that police had recorded the statement of Abdul Samad during the night intervening 16th and 17th of March, 1982 at about 12 midnight. However, that important s tatement was not produced by prosecution at trial. It is any bodys guess as to what circumstances Abdul Samad had detailed in his that statement l eading to his being manhandled, and by whom. 12. The success of the prosecution in the case rests on the evidence of P. Ws.1 to 6, the alleged eye-witnesses. Out of them, P. Ws.1 and 2, the independent witnesses, have not supported the prosecution case. They had maintained that they knew nothing about the assault on Abdul samad. 12. The success of the prosecution in the case rests on the evidence of P. Ws.1 to 6, the alleged eye-witnesses. Out of them, P. Ws.1 and 2, the independent witnesses, have not supported the prosecution case. They had maintained that they knew nothing about the assault on Abdul samad. At the request of Additional P. P. , these witnesses were declared hostile and permission was accorded to put questions to them in the nature of cross-examination. However, nothing material was brought up in the cross-examination of these P. Ws. by the Additional P. P to show that what they had stated at trial was not based on truth. 13. Then as regard evidence of P. Ws.3 to 6, the same does not carry any conviction. It was nowhere stated in Fardbeyan (Ext.4) that P. Ws.3,4 and 5 were near the deceased at the time of occurrence, although that fardbeyan was made by their own brother (P. W.6 ). P. W.5 was aged about nine years and P. W.3 about 12 years at the time of occurrence. P. W.4 is married in a different locality of Bhagalpur. It appears that p. Ws.6 and 5 had not known the assailants earlier, and P. W.4 was summoned from the house of her in laws subsequently. P. W.3 was admittedly away to place of his work when the assailants of Abdul Samad had arrived. It is too big a co-incidence to be swallowed that they had awaited the arrival of P. W.3 for opening the assault as, if they wanted him to be an eye-witness against them. Even the evidence of these witnesses is contradictory to the medical evidence rendered by P. W.7. This is not the prosecution case that any out of the assailants of Abdul Samad was armed with any weapon. They had allegedly manhandled him by giving him slape fit and leg blows. Still P. W.3 would like us to believe that two of the appellants were carrying Lathis and they had caused between 50 to 100 Lathi blows on Abdul Samad. He had also deposed about blood coming out of the injuries, which had spoiled the clothes. But other P. Ws had contradicted him by saying that no external mark of, injury was visible. He had also deposed about blood coming out of the injuries, which had spoiled the clothes. But other P. Ws had contradicted him by saying that no external mark of, injury was visible. P. W.6, the informant had admitted that the only earlier occasion, when the assailants had allegedly visited his house was in 1975 If that was so, it is unthinkable that P. Ws.5 and 3, then children of tender ages, had started knowing them. 14. Caught in a tight situation, the informant (P. W.6) had at last admitted that he had made no statement before the police even on 17-3-1982 and that the police had drawn up his Fardbeyan on 18-3-1982 subsequent to the expiry of Abdul Samad. The explains as to why statements of p W 3 to 5 not named in the F. I. R. , was recorded after a couple of days. P. Ws.5 had even faultered while giving the name of Md. Imtiaz appellant. She had initially given out his name as Mumtaz. She had also not correctly mentioned the name of the alleged eye-witness Md. Hidayat as himayat. She, like other witnesses, had admitted that on no earlier occasion they had visited the house of any out of the appellants. The fect that none out of these P. Ws. had identified any assailant of Abdul samad, assuming that these P. Ws. were then at the house, is fully borne out from the wholly reliable testimony of Dr. S. K. Bhowmik (D. W.5)P W 3 had admitted that immediately after the occurrence Abdul Samad was taken to the clinic of P. W.5, and on enquiry, the names of the assailants were duly disclosed to him. However, D. W.5 has given a big he to their this version by deposing that members of the family of the deceased were unable to disclose him the names of the assailants. Apart from these there are othef infirmities also in the evidence of P. Ws.3 to 6, warranting rejection thereof. Undoubtedly, the conviction of the appellants in the case has been recorded on insufficient grounds. At any rate the prosecution case against them is not free from reasonable doubt, and they deserve the benefit of the same. 15. For reasons stated above, this appeal succeeds and is here by allowed The conviction and sentences of the appellants are set aside, and they are acquitted of the charge. At any rate the prosecution case against them is not free from reasonable doubt, and they deserve the benefit of the same. 15. For reasons stated above, this appeal succeeds and is here by allowed The conviction and sentences of the appellants are set aside, and they are acquitted of the charge. The appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.