G. S. N. TRIPATHI, J. Both these appeals arise out of judgment and order, dated 21. 9. 1977 passed by the Addl. Sessions Judge, Varanasi in S. T No. 126 of 1974, State v. Jai Bahadur and 33 others. Accused Phunnan Singh, Kalpru Singh, Kashi Singh and Bhola Singh have been convicted on a charge under Section 304, Part-I, read with Section 149, I. P. C. and sentenced to undergo 5 years R. I. Accused Phunnan Singh, Kalpu Singh, Kashi Singh and Bhola Singh were further convicted on a charge under Section 436/149, I. P. C. and sentenced to undergo 5 years R. I. Accused Kalpu Singh, Phunnan Singh, Kashi Singh and Bhola Singh and Munni Singh were also convicted on a charge under Section 323/149, I. P. C. and were sentenced to six months R. I. Accused Kalpu Singh, Phunnan Singh, Kashi Singh, Bhola Singh and Munni Singh were convicted on a charge under Section 147, I. P. C. and ( sentenced to undergo six months RJ. Accused Munni Singh was convicted on a charge under Section 304, Part-I, I. P. C. read with Section 149, I. P. C. and sentenced to undergo one years R. I. Accused Munni Singh was further convicted on a charge under Section 436/149, I. P. C. and sentenced to undergo one years R. I. By the same order the learned Addl. Sessions Judge acquitted the remaining 29 accused. 2. These two appeals have been filed by the convicted accused. The State has not filed any appeal against the order of acquittal of 29 accused. 3. The prosecution case started on the basis of a FIR lodged by Khurbhur, PW1 at the Police Station Mirza Purad. Distt. Varanasi on 14. 9. 1971 at 18. 20 p. m. The incident is said to have taken place on the same day at about 4. 30 p. m. 4. It has been alleged that the complainant is a Harijan since time immemorial, Harijan of the village have been lifting carcasses of dead animals belonging to the upper communalities of Brahmin, Thakurs etc. The ladies at the complainant com munity also used to cut placenta of the ladies of these communities at the time of their deliveries and they used to do other house hold chores. The ladies at the complainant com munity also used to cut placenta of the ladies of these communities at the time of their deliveries and they used to do other house hold chores. But with the passage of time education spread amongst the Harijans also and they dissuaded the elderly Harijans not to permit their ladies to cut placenta of upper communities and the males not to lift carcasses of their cattle. Raghunath was the leader of this pragmatic Section of the Harijans. The higher communities did not relish this attitude of the Harijans. There fore, they tried to teach them a lesson. On the date of occurrence about 2 persons, out of whom 30 have been named, raided the Harijan Basti, indiscriminately assaulted the Harijans, set fire to their huts and assaulted several persons. As a result of injuries caused to Bhaggal, he died. The accused looted properties of the Harijans and thus caused wide spread damage. Even the ornaments of ladies were got removed and the accused retreated only after causing wide spread danjvage to the person property etc. belonging to the Harijans of the Basti. 5. On the basis of the oral report, a chik was prepared at the police station and investigation followed. The injured Bhaggal, Rajit, Chittu, Algu, Ram Dular, Madhai, Smt. Virajia, Smt. Rajwantia, Smt. Santuria, Faujdar, Baldeo, Sahdeo, Ram Kishore, Daknu, Khurbur and Ram Das were medically examined in the same night at the District Hospital, Varanasi. Bhaggal died and the post mortem examination of his dead body was conducted on 15. 9. 1971 at 12 noon. Two lacerated wounds, multiple abrasions along with compound fracture of the left leg were detected. As a result of injury No. 3, the broken rib entered the heart chamber, causing rupture to right ventricle and the death was caused on account of this injury. These injuries were caused by a blunt weapon. 6. After interrogating the witnesses, the I. O. submitted the charge sheet against 34 accused and a joint trial of all of them took place. 7. Accused in their statements under Section 313, Cr. P. C have denied the allega tions against them and have said that on account of enmity, they have been falsely implicated. Some of the accused pleaded alibi That has been accepted by the learned Addl. Sessions Judge. 8. 7. Accused in their statements under Section 313, Cr. P. C have denied the allega tions against them and have said that on account of enmity, they have been falsely implicated. Some of the accused pleaded alibi That has been accepted by the learned Addl. Sessions Judge. 8. After a thread bare analysis of the prosecution case and evidence on the record, the learned Addl. Sessions Judge let off 29 accused and convicted only 35 of them, who are appellants before this Court. The charge under Section 302, I. P. C. has been converted into one under Section 304, I. P. C. Part-I and different sentences have been given as noted above. 9. The accused have filed this appeal. I have heard the learned Counsel for the parties at stretch and gone through the record. I find that there is much force in this appeal and it deserves to be allowed. 10. The F. I. R runs into three full typed pages. Each minute detail has been noted in it. The different roles played by the different accused have been noted along with their weapons. Similarly the damage caused to different houses by different accused has been meticulously noted therein. This typed FIR is alleged to have been lodged by Khurbur, an illiterate person, who did not know even correct Hindi. The learned Addl. Sessions Judge has discussed the point of FIR at pages 25, 26, 27 and 28 of the judgment. At page 26, he has observed as follows: The reporter Khurbur admitted that he had not seen Raghunath at the time of the incident. He also did not meet Raghunath within two days after the occurrence. This mention in the FIR that Raghunath had already sent an application to S. O. could be possible only when Raghunath met Khurbur. Raghunath met Khurbur two days after the occurrence and the suggestion of the defence that mention of this fact in the FIR suggests for its ante-timing is not without any substance. 11. Again the following observations at page 26 of the judgment are very relevant: Besides this, a perusal of Panchayat Nama Ex. 35 shows that formerly the place of occur rence was written as Babusarai, which has been scored and village Behara has been written later on. 11. Again the following observations at page 26 of the judgment are very relevant: Besides this, a perusal of Panchayat Nama Ex. 35 shows that formerly the place of occur rence was written as Babusarai, which has been scored and village Behara has been written later on. It shows that some incident had taken place at Babusarai as well otherwise this name would not have come in the Panchayatnama. Further, the time for its investigation was mentioned earlier at 7. 05 p. m. but the same was over-written and mentioned at 8. 25 p. m. Further, the name of the complainant was written by a different pen and different ink. Also the number of G. D. 26 has been mentioned later on. On these facts, it was suggested by the defence that the FIR was not prepared by 6. 20 p. m. as has been suggested by the prosecution. 12. After analysing the entire evidence, the learned Addl. Sessions Judge con cluded at page 27 as follows : There are certain discrepancies in the preparation of the FIR 1 no doubt, but the possibility cannot be ruled out that it was not lodged immediately after the occurrence. From the facts mentioned above and the circumstances of the case, it may be said that the FIR was not prepared at the earliest opportunity as has been put forward by the prosecution which lends chance for exaggerations and false implication of a large number of persons after consultation. But I find that the incident, as such, has not been denied and there may be exaggeration in the FIR but the same has been lodged within a reasonable time at the police station. I think, after this conclusion of the learned Addl. Sessions Judge, the sanctity of the FIR is completely lost, like a little illicit pregnancy a little illegality of such a basic nature in the FIR makes it a document worthy of no credence. 13. The learned Addl. Sessions Judge also found at page 27 that the special report, admittedly, was sent after a very long delay and the I. O. could not explain it as to why so much delay was caused. After dealing with the entire aspects and challenges launched against the FIR the learned Addl. Sessions Judge concluded at page 28 as follows: Therefore, I find that the FIR was lodged within a reasonable time. After dealing with the entire aspects and challenges launched against the FIR the learned Addl. Sessions Judge concluded at page 28 as follows: Therefore, I find that the FIR was lodged within a reasonable time. However, the manner in which it was prepared and the details as given in the FIR indicate that there were chances of exaggeration and implication of many of the accused. 14. This way, the learned Addl. Sessions Judge coined his own theory regarding reasonable time of the FIR. What was that reasonable time, is not specified by the learned Addl. Sessions Judge. From where he got this reasonable time conception is also not clear. But one thing is clear that the FIR was not lodged at 6. 20 p. m. as suggested by the prosecution. It is further clear that the FIR was not the brain child of the complainant Khurbur, who was capable of drafting such FIR with so meticulous details, specifications and particulars. So somebody also was the play back singer and Khurbur acted merely as an authority to put his thumb impressions upon the dictated version of somebody. That is not clearly coming but on the platform of this case, but one thing is specifically clear that this FIR is the product of bread and well planned consultation and confabulation. The result is that no reliance can be placed upon this FIR. This way the very basis of the prosecution case goes away. 15. Another important feature of the case is the motive for commission of the crime. The learned Addl. Sessions Judge has dealt with this part of the prosecution case at pages 19 to 24 in the judgment. Two main causes are assigned as constituents of motive. The ladies of the Harijan community used to cut placent as of the ladies of the upper communities and also did house hold chores, which was not relished by the educated and pregmatic section of the Harijan community and for that they resolved about six months earlier to stop these works. About a week earlier to the incident, a Panchayat w)as held. The defence version was that no lady of the upper community gave birth to the child during this 6 months. Nor any cattle died. About a week earlier to the incident, a Panchayat w)as held. The defence version was that no lady of the upper community gave birth to the child during this 6 months. Nor any cattle died. So the question of removing carcass did not arise and further the Harijans of the village were always treated well by the upper communities who continued still to employ them. The learned Addl. Sessions Judge has disbelieved both the Panchayats held about 6 months and ft week earlier to the incident. At page 21 in the judgment, he has observed as under: It has come in evidence that Harijans stopped the aforesaid work six months before when the Panchayat took place at Tamachabad Pokhara, but this fact is not mentioned in Ex. Ka-2 which was sent by Raghunath in respect of the apprehended incident. The second Panchay is said to have taken place 7 days before the occurrence. In the meantime there was no occasion of cutting any placenta of any lady of the upper communities or to remove of dead body of the catties. It is suggested by the defence that there was no occasion to call for any Panchayat but it was mere concoction to support the prosecution version. In Ek- Ka-2 which was given before the occurrence, there was no mention of any Panchayat. Regarding the carcass he found that no cattle of the upper communities died during this period. 16. The prosecution witnesses could not say as to how and who removed the dead bullocks. The I. O. also did not find any evidence in respect of these two bullocks which are said to be immediate motive of the crime. This way, there was no immediate occasion for either the ladies of the upper communities to get the services of the Harijan communities during the delivery period, nor there was any occasion to employ the males of the Harijan communities to remove the carcasses. Thus the very basis or the origin of motive for the crime is not established. 17. A similar conclusion flows from the evidence that the Harijans were always treated well by the upper caste people. The learned Addl. Sessions Judge at page 22 of the judgment observes as follows: All the prosecution witnesses have admitted that they were servants of these accused and there was absolutely no grudge against these accused. 17. A similar conclusion flows from the evidence that the Harijans were always treated well by the upper caste people. The learned Addl. Sessions Judge at page 22 of the judgment observes as follows: All the prosecution witnesses have admitted that they were servants of these accused and there was absolutely no grudge against these accused. They have also admitted that Harijans of the village were very properly treated by the Thakurs of Behara 18. So there was no motive at all available to the accused to commit the crime. Neither proximate or even distant. So the theory that one Panchayat took place above 6 months earlier and the second one took place about a week earlier to the incident, is false. The learned Addl. Sessions Judge has rightly disbelieved this theory. 19. At page 23 of his judgment, the learned Addl. Sessions Judge has observed as follows: Also it is noteworthy that the prosecution witnesses admitted that within six months before the occurrence when they decided to stop work, no delivery of any child took place in the house of the accused. It was admitted that there was no occasion to cut placenta of any woman during that period. Accused have filed the delivery certificates Exs. Kha-10, Kha-11, Kha-12, Kha-13, Kha-14, Kha-22, Kha-23 and Kha-24 to show that the children of these accused use to take delivery at hospitals in Varanasi. There is absolutely no evidence to show that there was any delivery in the house of any accused during the relevant period which could occasion Harijan ladies to cut placenta. Therefore, this motive suggested by the prosecution for this incident is also not estab lished. 20. The learned Addl. Sessions Judge has thus disbelieved the prosecution ver sion regarding motive but he proceeded to give out his own theory of the occurrence and he observes as follows at pages 23,24: However, there was a genera grudge with the Harijans that they were not being properly treated by the upper communities in the society. Harijans of Behara were also outraged on that ground and when the Harijans leaders started their movement, this section was further aggrieved. It appears from the evidence and circumstances of the case that there was a general dissatisfaction among the Harijans of Behara and nearby villages on this ground. Harijans of Behara were also outraged on that ground and when the Harijans leaders started their movement, this section was further aggrieved. It appears from the evidence and circumstances of the case that there was a general dissatisfaction among the Harijans of Behara and nearby villages on this ground. It also appears that the Harijans generally would have showed their unwillingness for that work and that would have scared the upper communities. 21. It is difficult to find as to where from and on what basis the learned Addl. Sessions Judge came to the conclusion that there was general dissatisfaction amongst the Harijans. They were admittedly on or before or even after the incident being treated well. They continued to be in the service of the upper communities. Both the ladies and gents were employed by the upper communities. So the question of general dissatisfaction did not arise and the learned Addl. Sessions Judge has brought a new theory, which was not permissible under the criminals law. 22. The learned Addl. Sessions Judge has candidly admitted at page 24 that there was no specific incident on account of which the motive could be attributed to the accused. But again he resorts to his own theory of general dissatisfaction amongst the Harijans. This was the most unfortunate part of the learned Addl. Sessions Judges version, which was highly unwarranted. This way, I find that there was no motive for the crime. 23. Now the tenor of the PWs is also to be noted and it appears that they were giving totally imaginary version and it is difficult to find any grain amongst a huge pile of chaff collected in the file of the learned lower court. Khurbur, the complainant is a total Her. The learned Addl. Sessions Judge has dealt with his evidence at page 30 and has observed as follows : According to him, he was medically examined in the hospital but no injury report for Khurbur has been filed. There is absolutely no evidence on record to show that Khurbur was injured in this incident. The I. O. admitted that Khurbur was not at all injured. There was no nothing of his injury in the G. D. This fact shows that witness Khurbur has been exaggerating the evidence and was bent upon telling lies to falsely implicate many of the accused. The I. O. admitted that Khurbur was not at all injured. There was no nothing of his injury in the G. D. This fact shows that witness Khurbur has been exaggerating the evidence and was bent upon telling lies to falsely implicate many of the accused. When a witness is found to be a total Her, it is not permissible in law to pick up some sentences and place them together and bring out a new case. In the FIR Khurbur shows himself to be omni present but at the same time he leaves the truth untouched in the heap of lies. He does not disclose as to how he could get an occasion to see the entire incident at the houses of different persons at different times within an hour. He does not say that he ran from one house to another and followed the incident of fire- mischief committed by individual accused at the houses of individual Harijans. May he does not say as to what he did against this on slaught at the hands of the accused. His house was not burnt. He was not injured. He lost no property. But when he came in the witness-box, he tried to show that he was an injured person and he had been sinned against. The Learned Addl. Sessions Judge has rightly castigated him as a witness with a little credibility. After analysing his evidence, the learned Addl. Sessions Judge observes at page 33 of his judgment: This fact also shows that the witness is not reliable on many points. 24. PW 2 Sheo Nath poses himself to be another witness of fact. But he tried to implicate several innocent persons including Laxmi Dubey. The witness had to admit that he was not present at the time of occurrence. So he had no opportunity to see the performance of other accused. 25. PW 5 Lakhan had to admit that he could not see the performance of the accused Jahur and Mukhtar. He failed to name them before the I. O. under Section 161, Cr. P. C. and he further failed to name Achchaiber Singh, Naresh Singh, Khurbur, Hingu Ahir and host of other. 26. PW 4 Jagai failed to mention the names of Ram Nihore and Khurbur before the I. O. The learned Addl. He failed to name them before the I. O. under Section 161, Cr. P. C. and he further failed to name Achchaiber Singh, Naresh Singh, Khurbur, Hingu Ahir and host of other. 26. PW 4 Jagai failed to mention the names of Ram Nihore and Khurbur before the I. O. The learned Addl. Sessions Judge has also observed that the witness admitted that he had a weak eye sight. Thus in the fire incident, a huge volume of Carbon-dioxide bellowed out and this witness, including Others could not have been in a position to stay there for long, watch the performance of different accused and identify and name them correctly. 27. PW 5 Phunnan appeared to be a witness deposing on the basis of motive. He could not describe the different roles played by different accused. Not only this, he was a got up and chance witness. From 7 a. m. to 8 p. m, he was out of the village plying Rickshaw, which was the source of his livelihood. But on that unfortunate day, he absented from his duty, because of a lame excuse that some bad incident was likely to occur in the village. If he had got the premonition of this nature, he should have informed the police and not rested at his house. He could avert the occurrence by doing so, but he did do the same. The learned Addl. Sessions Judge has concluded at page 38 in these words: This statement of the witness is highly unreliable. 28. PW 7 Lagan and PW 8 Algu omitted to mention a large number of accused. So was the case with PW 9 Rajeet and PW 11 Birju. Birju was also a chance witness. He admitted in the cross-examination that he was an employee in a carpet factory and worked there for the whole day. He also absented from duty on that date because he smelt some foul. He also did not utilize his-premonition by informing the police in advance. Therefore, he also appears to be a chance witness. His performance in the cross- examination is very poor. He could not correctly assign the roles of different accused, nor he could name all of them. The learned Addl. Sessions Judge while dealing with the evidence of Jagat at pages 40 and 41 has observed as follows : Similarly, witness Jagai had not stated before the EO. His performance in the cross- examination is very poor. He could not correctly assign the roles of different accused, nor he could name all of them. The learned Addl. Sessions Judge while dealing with the evidence of Jagat at pages 40 and 41 has observed as follows : Similarly, witness Jagai had not stated before the EO. and did not disclose the names of accused Achchaiber Singh, Manbodh, Purshottam Singh, Bhonu Singh, Ram Naresh, Ram Nath Singh, Radhey Shyam Singh, Khurbur, Laxmi Dubey, Nihore Ahir, Bachcha Singh, Prem Singh, Lallan Singh, Zahur, Mukhtar, Sabhajit Singh and Ashok Kumar Singh before him witness Algu had not disclosed the name of Zahur. Witness Rajit had not disclosed the names of accused Sabhajit, Zahir and Mukhtar. 29. The learned Addl. Sessions Judge has found that a large number of accused had been falsely implicated. At page 41, he observes as follows: . . . . Therefore, the circumstances make the participation of Jai Bahadur Singh and his family members doubtful in this case. and he concluded in these words : Thus, from a careful examination of the prosecution evidence adduced in this case, I find that the aforesaid prosecution witnesses are only certain about the participation of accused Phunnan Singh, Kalpu Singh, Munni Singh, Kashi Singh and Bhola Singh, who had beaten Bhagger to death and set fire to the huts. The prosecution witnesses are consistent and cor roborated each other only on this point. They have given contradictory statements and there are many discrepancies regarding the participation and presence of other accused in this incident, I will elaborate these points when I will deal with the case of individual accused. I find that the learned Addl. Sessions Judges approach was faulty. The same witness was disbelieved with, respect to other accused but believed with respect to the appellants by a strong stretching of imagination. The learned Addl. Sessions Judge further concluded at Page 42 in these words: Therefore, there was every likelihood that many of the accused would have been falsely implicated on account of enmity, grudge dissatisfaction, community cause as it was prevalent at that time. 30. Apart from it, the learned Addl. Sessions Judge believed. . . . . . . . the theory of alibi with regard to accused Spring Singh and accepted the version of DW 1 Bharat Singh at page 48. 30. Apart from it, the learned Addl. Sessions Judge believed. . . . . . . . the theory of alibi with regard to accused Spring Singh and accepted the version of DW 1 Bharat Singh at page 48. Similarly the plea of alibi set up by accused Ashok Kumar Singh was accepted in these words : They indicate that Ashok Kumar Singh was not present in the village at the time of the occurrence. 31. Accused Ram Naresh Singhs alibi was accepted at Page 51 of the judge ment and so was the case with the plea of alibi of accused Radhey Shyam at the same page. 32. Regarding Khurbur Singh, Ram Nihore and Kalendar Singh, the learned Addl. Sessions Judge has observed at page 52 follows : Thus I find that there is no reliable evidence about the participation of these accused in the crime and they are entitled to benefit of doubt. 33. Regarding Achhaibar Singh, the learned Addl. Sessions Judge has observed at page 53 as follows : I find that the presence and participation of the accused Achhaibar Singh is not at all proved. 34. While dealing with accused Purushottam Singh, the learned Addl. Sessions Judge observed as follows : Therefore, I find that accused Purushottam Singh had not participated in this crime and had been falsely implicated only with a view that no important person of the village should be left out. 35. At page 54, he says as follows : Thus I find that a number of persons have been implicated and the only part assigned was that they set fire to huts. 36. At page 55, the learned Addl. Sessions Judge observes as follows : In the circumstances of the case, it is highly improbable that all these persons would assemble and set fire to one hut each in the manner put forward by the prosecution. Therefore, I find that the participation of these accused in the crime is highly doubtful. So is the finding with regard to Mangla Singh, Prem Singh and Lallan Singh. The learned Addl. Sessions Judge has found them victims of false implication. 37. At page 56 while dealing with the case of Sabhajit Singh, the learned Sessions Judge has observed as under : There is no reliable evidence regarding his participation and presence in this crime is highly doubtful. 38. Regarding Zahur and Mukhtar, the learned Addl. The learned Addl. Sessions Judge has found them victims of false implication. 37. At page 56 while dealing with the case of Sabhajit Singh, the learned Sessions Judge has observed as under : There is no reliable evidence regarding his participation and presence in this crime is highly doubtful. 38. Regarding Zahur and Mukhtar, the learned Addl. Sessions Judge has found at page 57 as follows : Therefore I find that there is no reliable evidence on record to prove the presence and participation of these two accused in this incident and they are entitled to benefit of doubt. 39. Thus a thread-bare analysis of the judgment recorded by the learned Addl. Sessions Judge leads me to the conclusion that the prosecution case is faulty like a sieve with millions of wholes therein and such type of evidence should have been discarded like a rubbish. Unfortunately, the learned Addl. Sessions Judge picked up some portions of the evidence and rejected its major portion and at the same time acted upon torn but sentences for convicting the appellants. Those sentences have been read out of contest as well. 40. It is most unfortunate that such a condemnable crime is going unpunished. But the blame for this squarely lies upon the shoulders of those highly ambitious persons who wanted to rope in as many as persons possible. Even persons whose names were not mentioned, were implicated and recourse was taken for identification proceedings. This is another unfortunate aspect of this case. This shows that it is difficult to take out few pieces of grains out of the heap of chaff. The distance between may be and must be is very long. There is an may be possibility of even the appellants having participated in the crime. But there was no clinching evidence that they actually did participate in the melo drama. Therefor, these accused appellants also deserve to be given benefit of doubt and acquitted. 41. Thus, the appeals succeed and are allowed. The judgment and order passed by the learned lower Court convicting the accused-appellants is set aside. The accused are in jail. They shall be released forthwith unless required in some other case. Appeal allowed. .