JUDGMENT 1. - The appellant has been convicted on a charge Under section 302 Indian Penal Code and sentenced to life imprisonment with Rs. 100/- as fine. This appeal is against the conviction and sentence. 2. A written report was lodged by Isan Khan S/o Medau Khan at the Police Station Shiv to the effect that on the previous day Deenu Khan and Makka Khan had an altercation on the question of Maka Khan having married Lasa niece of Deenu Khan against the wishes of Deenu Khan and his brothers. Dogha Khan S/o Haji Khan and Kisri Khan S/o Raheem Khan had pacified them. However, on the next day i.e. the day on which the FIR was lodged after a function of opening an Anganwadi Centre in the village Dholakiya was over at about 12 Noon to 1 p.m. when the crowd collected at the Anganwadi Centre dispersed, Isan Khan was going home from the function when he heard cries from the direction of Deenu Khan's house. He went to the spot with Amad Khan and Mohd. Ali and saw that Deenu Khan was giving Lathi blows on the head of Maka Khan who was lying down on the ground and he was shouting that Maka Khan had contracted the marriage despite the protest and, therefore, he will not leave him alive. Kalu Khan came running on the spot and tried to intervene and he was also hit by Deenu Khan on the head. Isan Khan and others with difficulty pacified Deenu Khan and sent him to his house. Maka Khan was injured in the head, in the left ear on the left side of the face, his ear was cut and bleeding. Maka Khan was unconscious and was not speaking. As there was no conveyance available to take him to Barmer he was carried on `Charpai' and at about 5 p.m. he breathed his last at Bhadkha. On his death his dead body was taken to Thana Shiv and there the written report was lodged. This report was lodged at 7 p.m. on 11.8.1989. After investigation, the prosecution was launched which resulted in conviction of the appellant as aforesaid. 3. On his death his dead body was taken to Thana Shiv and there the written report was lodged. This report was lodged at 7 p.m. on 11.8.1989. After investigation, the prosecution was launched which resulted in conviction of the appellant as aforesaid. 3. The learned counsel for the appellant submitted that PW 2 Isan Khan and PW 3 Amad Khan who have been shown to be eye-witnesses of the incident in the FIR did not conform to the FIR version and stated that they had not seen the actual assault and Kalu Khan who came on the spot later on as per the FIR deposed as an eye-witness in the Court. It was also contended that Mohd. Ali an independent eye-witness named in the FIR was not examined and several independent neighbours who must have seen the incident were not examined. It is also submitted that the alleged weapon of offence Lathi was not produced in the Court and no report of serologist was put on record. In these circumstances, according to the learned counsel for the appellant the case of the prosecution could not have been taken to be proved. On the other hand the learned Public Prosecutor submitted that the sole testimony of Kalu Khan PW 4 was sufficient to uphold the conviction as he was an injured independent reliable witness. 4. Isan Khan PW 2 the person who had lodged the FIR deposed before the Court that at about 12 Noon to 1 p.m. on the day of the incident when they dispersed from the function at Anganwadi Centre and when he was going home along with Amad Khan and Mohd. Ali, Maka Khan had also started from the place of function for his house, the witness heard cries from the direction of the house of Deenu Khan. The witness, Amad Khan and Mohd. Ali went to the spot. There Deenu Khan was assaulting Maka with a lathi. Kalu Khan had reached the spot earlier to the rescue of Maka Khan, on which he was assaulted by Deenu Khan with a Lathi. Witness further said that when he, Amad Khan and Mohd. Ali went to the spot Maka Khan had already fallen down and blood was oozing out from his left ear, he had also shut his eyes. When the witness and the other two persons went there and rescued Maka Khan, Deenu Khan ran away. Witness further said that when he, Amad Khan and Mohd. Ali went to the spot Maka Khan had already fallen down and blood was oozing out from his left ear, he had also shut his eyes. When the witness and the other two persons went there and rescued Maka Khan, Deenu Khan ran away. Maka Khan was put on the Charpai and they went to Bharkha in order to take him to Barmer, but Maka Khan died at Bharkha. Then they went to Shiv along with the dead body and there a report was lodged. In his cross-examination he stated that Maka Khan had gone to Gujarat 5, 7 days after the marriage and within those 5, 7 days nobody quarrelled with him about the marriage. The witness also stated that the incident of one day earlier was heard by him from the females of the family, but he had not seen that incident. He further stated that when he himself, Amad Khan and Mohd. Ali reached the spot, he had seen Maka Khan lying down on the earth and Kalu Khan standing near him. He had not seen Deenu Khan giving Lathi blow to the deceased. The witness also admitted that there are houses near Deenu Khan's Dhani and people live there. He further admitted that Ummedkhali, he himself, Dhadhu, Misri, Gogo, Kalu Sadak, Maka's brother were with him when they had started from Dholakia. He also admitted that when they reached Bharkha at about 7 p.m. sun had already set, then they reached Shiv at about 11 to 12 in the night and all the persons started from Dholakia accompanied him to the Police Station. The report was written at his dictation by Munshiji at the Thana. Finally, he also admitted that Maka Khan was a well built person and Deenu Khan was a lame person. 5. PW 3 Amad Khan did not state that they reached the spot on hearing cries. What he deposed was that when he, Isan Khan and Mohd. Ali were going home after the function of Anganwadi they saw that Deenu Khan was quarrelling with Maka Khan on the street in front of Deenu Khan's house. Three of them went to the spot, there Maka was about to die and blood was oozing out of his ear. The witness and the two persons accompanying him pushed Deenu Khan away. Three of them went to the spot, there Maka was about to die and blood was oozing out of his ear. The witness and the two persons accompanying him pushed Deenu Khan away. He was saying that he will kill him for having married his brother's daughter. The witness also stated that before they intervened Kalu Khan had gone to intervene. They took the injured Maka Khan on a Charpai up to Bharkha where he died. According to this witness Isan Khan went to Nimbala and telephonically informed Police Station Shiv. Police came there and then all these persons went to Shiv and there the report was lodged. In his cross-examination the witness stated that Isan Khan reached the spot first before Mohd. Ali. The witness was three steps behind Isan Khan. He categorically stated that they had left the spot where assault took place about 45 minutes after the incident. 6. Mohd. Ali, Gaghu, Kalu, Amad, Isan and the witness were together. They reached Bharkha at 4.00 'O clock. They reached the Police Station at about 11 in the night and all of them had gone to Police Station. He also deposed that Isan Khan gone to Nimbla on foot. 7. PW 4 Kalu Khan deposed that after the function at Anganwadi when he was going on the road Maka was following him. When they were passing over the house of Sadak and Deenu Khan, Deenu Khan hit Maka Khan on head, he gave a second blow on the ear. He tried to intervene and received injuries. Maka fell down and died. According to the witness Isan Khan, Mohd. Ali and Amad Khan came thereafter. Isan, Mohd. Ali and Amad told Deenu Khan to go away from the spot and he went away. Then they arranged for a Cot and were taking Maka to Barmer. When they reached Barkha they had telephoned the Police Station, Shiv and took Maka to Shiv, where report was lodged. The witness also deposed that Deenu Khan had also come to the Anganvadi. When they were coming back Maka was 10 steps behind him and Deenu Khan was 20 steps behind him. He also deposed that when he saw, Maka was lying down on the ground. He had seen the first blow being given, he had seen it after turning round. Mohd. When they were coming back Maka was 10 steps behind him and Deenu Khan was 20 steps behind him. He also deposed that when he saw, Maka was lying down on the ground. He had seen the first blow being given, he had seen it after turning round. Mohd. Ali, Isan Khan and Amad Khan arrived according to this witness 10 minutes after the witness Kalu Khan himself had arrived. But witness also stated that they reached Bharkha at 7 p.m. and the Police Station at 11-12 p.m. in the night. The witness also admitted that the houses of Ramjan, Sadak, Raidan, Beeja, Aliya Kamal, Bachu Khan are situated near the Deenu Khan's house and he also admitted that all these Dhanies are inhabited. 8. Assessing the evidence of these three witnesses we find that there is a serious doubt about the time and the manner in which the FIR was lodged. A written information is said to be given by Isan Khan at Police Station Shiv on 11.8.1989 at 7 p.m. According to Isan Khan this report was taken down by Munshi at the Thana at his dictation This means the information given to the police was oral and it was taken down by a Munshi at the Thana. This was shown to be a written information. In this FIR it is stated that Isan Khan, Amad Khan and Mohd. Ali had reached the spot earlier than Kalu Khan, whereas in their deposition before the Court the witnesses have changed the sequence and stated that Kalu Khan was already there and these three persons reached later on. In the FIR the time of reaching at Bharkha is shown at 5 p.m. whereas in the Court the witnesses are unanimous that they have reached Bharkha as 7 p.m. The FIR is said to have been lodged at 7 p.m. on 11.8.1989 when according to the witnesses they were at Bharkha at that time. The witnesses have stated that a telephone call was made to the Police Station Shiv and police had reached Bharkha and from there all of them had come to Shiv Police Station. All these raise a grave doubt about the genuineness of the last information report and also suggest that the FIR may be post-investigation. The witnesses have given the time of reaching Shiv at about mid night. All these raise a grave doubt about the genuineness of the last information report and also suggest that the FIR may be post-investigation. The witnesses have given the time of reaching Shiv at about mid night. There is no explanation as to how the FIR could be lodged (sic) in advance of the reaching of the informer and eye-witnesses at the Police Station Shiv. 9. There is a serious contradiction about the sequence of events between the FIR version and the depositions in the Court. According to FIR Isan Khan, Amad Khan, Mohd. Ali had reached the spot first and then Kalu Khan had arrived on the spot, whereas in the deposition all the aforesaid three witnesses have said that Kalu Khan was already there when Isan Khan, Amad Khan and Mohd. Ali came to the spot. Thus the FIR version was that Isan Khan, Amad Khan and Mohd. Ali were the eye-witness of the actual assault and Kalu Khan had come to intervene afterwards. In the depositions before the Court the witnesses have changed the sequence and stated that Kalu Khan having arrived at the spot was the eye-witness of the assault and Isan Khan, Amad Khan and Mohd. Ali had reached there afterwards and had not seen the actual assault. These are material contradictions severely affecting the veracity of the witnesses. 10. In the circumstances of the case when Isan Khan, Amad Khan and Mohd. Ali were according to the FIR version had come to the spot and were eye-witnesses, non-examination of Mohd. Ali cannot also be excused. The prosecution was duty bound to put all the material witnesses before the Court and there is no explanation for not examining Mohd. Ali, the same is the case with other independent witnesses. It has been admitted by witnesses that near the spot there were inhabited houses and several other persons must have seen the incident. The investigating officer has also admitted that there are houses in the vicinity, some of which were inhabited. There is no explanation for not taking steps as to why evidence of such witnesses was not obtained and they were not examined. 11. The investigating officer has also admitted that there are houses in the vicinity, some of which were inhabited. There is no explanation for not taking steps as to why evidence of such witnesses was not obtained and they were not examined. 11. A lathi had been recovered at the instance of the accused appellant, but there no significance can be attached to this evidence because the Lathi was not produced at the trial and Serologist's report about the blood stains is also not on record. 12. In the aforesaid circumstances, it cannot be said to be safe to rely on the evidence on record to sustain a conviction. It is clear that the entire truth has not been brought before the Court. The timing and the manner of lodging the FIR is doubtful and the testimony of the witnesses is not trustworthy because of the inherent contradictions. The appeal, therefore, deserves to be allowed. It is hereby allowed. The conviction and the sentence is set aside. The appellant shall be released forthwith if his detention is not authorised by any lawful order.Appeal Allowed. *******