JUDGMENT 1. - The three appellants were tried alongwith one Bhikam Singh (now dead) before Additional Sessions Judge, Bayana for causing murder of Bhagwan Singh son of Inder Singh Thakur resident of village Milsama at about 7 p.m. on July 30, 1993, in Sessions Case No. 94/93 and were convicted and sentenced vide judgment and order dated May 31, 1994. 2. The details of the prosecution case are extensively set out in the impugned judgment of the trial Court and it is not necessary for us to repeat the same. However, we would like to give a brief resume of the important facts which are relevant for deciding the present appeal and various questions raised by the learned counsel for the appellants. 3. Put briefly, the prosecution case, as unfold in the First Information Report (for short the F.I.R.), was that the deceased Bhagwan Singh and his brother-in-law P.W. 7 - Rambabu of village Ibrahimpur had gone to Kheragatek to purchase house-hold goods in the market there. While they were returning after making purchases, they were surrounded by the appellants and co-accused Bhikam Singh and Net Ram, who were sitting in ambush with lathis in the field (garden) of one Leeladhar near the canal. As per the prosecution case, accused Bhikam hugged the deceased Bhagwan Singh, while appellant-Dalel Singh struck a lathi blow on his head and the appellants Roop Singh and Virendra Singh and co-accused Net Ram also inflicted lathi blows. On the alarm made by Rambabu, witnesses Rajbir, Viri Singh and other persons came at the scene of occurrence and saw the incident. It was further alleged that Rambabu, then, came to the house of informant Het Ram in village Milsama and narrated about the incident. Thereafter, Het Singh and Rambabu came to the scene of all occurrence and found Bhagwan Singh lying dead. The dead body of Bhagwan Singh was taken to the hospital at Roopwas on a tractor-trolley and a written report of the incident (Ex.P 9) was made at Police Station, Roopwas at 2.30 a.m. in the night. On this report, Crime No. 202/93 was registered under Sections 147 and 302 I.P.C. 4. The investigation of the case was made by P.W. 8 - Girraj Prasad, the then Station House Officer (S.H.O.), Police Station, Roopwas. During investigation Site-plan (Ex.P 11) was prepared. On this report, Crime No. 202/93 was registered under Sections 147 and 302 I.P.C. 4. The investigation of the case was made by P.W. 8 - Girraj Prasad, the then Station House Officer (S.H.O.), Police Station, Roopwas. During investigation Site-plan (Ex.P 11) was prepared. Inquest report of the dead body (Ex.P 7) is said to have been made at 7 a.m. on 31.7.93. Memo Ex.P 2 describing condition of the dead body was also prepared. The autopsy on the dead body was conducted by P.W. 5 - Dr. Hari Singh Jatav, Medical Officer and Incharge Community Health center, Roopwas. Condition of the dead body and injuries were noticed by him as under:- "Rigor-mortis present. No emaciation. Maggot in left eye and sub-conjecture hemorrhage present. Clotted blood, maggot formation on both nostril and right ear present." External Injuries: 1. lacerated wound with haemotoma 11/4 cm. x 1/2 cm. on right temporal region. The haematoma was in an area of 8 cm. x 5 cm. 2. Haematoma 6 cm x 3 cm. over left temporal region. On internal examination, there was extra-dural hemorrhage on right side of the skull. Clotted blood was present with tearing of brain 3 cm. x 1/4 cm. There was a fracture of left parietal bone with tearing of brain matter 4 cm. x 3/4 cm. with clotted blood. In opinion of the doctor the cause of death was due to shock and hemorrhage as a result of head injury. 5. After usual investigation, a charge-sheet came to be filed against the appellants and co-accused Bhikam Singh in the Court of Munsif and Judicial Magistrate, Roopwas. Accused Net Ram could not be arrested, hence, investigation was kept pending against him under Sec. 173(8) of the Code of Criminal Procedure. The offence under Sec. 302 I.P.C. being exclusively triable by a Court of Sessions, the appellants and co-accused Bhikam Singh were tried in the Court of Additional District and Sessions Judge, Bayana. During pendency of the trial, accused Bhikam Singh died, as such, trial proceeded against the appellants who were ultimately convicted and sentenced under Section 147 and 302 or 302/149 I.P.C. as detailed-out in the judgment of the trial Court. 6. Shri Chaturvedi, learned counsel for the appellants, with his usual softness and preservance, assailed conviction of the appellants on a number of grounds. 6. Shri Chaturvedi, learned counsel for the appellants, with his usual softness and preservance, assailed conviction of the appellants on a number of grounds. The first and the foremost ground of attack urged before us is that the written report (Ex.P. 9) and F.I.R. (Ex.P 10) could not be made at 2.30 a.m. in the night as alleged by the prosecution as these documents were prepared later-on. Elaborating this contention, learned counsel submitted that entire investigation of the case is tainted and unfair and the documents and record in the case have been prepared ante-time. According to the learned counsel this unusual and disturbing feature of the case was not properly considered by the trial Court, which vitiates not only the investigation but also renders conviction of the appellants un-sustainable. 7. We carefully considered this Important aspect and minutely examined the materials on record, as well as, the Judgment under challenge In this appeal In the light of submissions advanced on both sides. On critical analysis of the circumstances and evidence our reaction is that this important aspect did not get proper and serious consideration of the trial Court. In a criminal case, F.I.R. is an extremely vital and important document and more so in a murder case. The object of F.I.R. from the point of the informant is to set the criminal law in motion and from the point of the investigating authorities is to obtain information about the alleged criminal activity and to record the circumstances before there is time for them to be embellished or concocted. It is the first version about the circumstances and other details of the incident to take suitable steps for tracing and bringing to book the guilty person. The significance of a prompt and genuine F.I.R. cannot be under estimated as an important and valuable piece of evidence. Contrary to it, if it is found that the F.I.R. was prepared after due deliberations, consultations and discussions, the conclusion becomes inescapable that the investigation is tainted and would, therefore, be unsafe to rely upon such investigation. 8. In the instant case the written report Ex.P 9, is stated to have been made at the Police Station at 2.30 a.m. in the night itself and on its basis Crime, in the shape of F.I.R. Ex.P 10 was registered at that time. 8. In the instant case the written report Ex.P 9, is stated to have been made at the Police Station at 2.30 a.m. in the night itself and on its basis Crime, in the shape of F.I.R. Ex.P 10 was registered at that time. However, the evidence led by the prosecution establishes that the basis of F.I.R., i.e. the written report Ex.P 9 was not even in existence at 2.30 q.m. as it was prepared some time after 8 a.m. on the following day. We are fully convinced that these documents had been recorded much later than one as shown in the said documents. This was done for the benefit of the prosecution. 9. The scribe of the report Ex.P. 9 was one Ramji Lal Petition-Writer but he was not examined by the prosecution. P.W. 6 - Het Ram, the real brother of the deceased, got the report prepared from Ramji Lal and he has deposed in un-equivocal terms that it was got written after medical examination. Admittedly medical examination of the dead body was made at 8 a.m. on 31.7.93. Therefore, from his statement it comes out that the report was prepared some time after 8 a.m. P.W. 7 - Rambabu, who is a star witness of the prosecution and real brother-in-law of the deceased, has admitted in cross-examination that the report was got written from a Petition-Writer in Tehsil at about twelve in the day. The Investigation Officer (in short I.O.) was also cross-examined on this point and he has deposed that the report was written by Petition Writer Ramji Lal but he did not record his statement to inquire from his as to where and when the report was written by him. He was also unable to tell as to whether the report was or was not written in Court at twelve in the day. Thus, from prosecution evidence itself it stands established that the report Ex.P. 9 was not even in existence at 2.30 a.m. in night and it was prepared in day time on 31.7.93. This disturbing feature of the case was not properly appreciated by the trial Court. P.W. 6 - Het Singh and P.W. 7 - Rambabu are close relatives of the deceased and we find no reason to disbelieve there testimony on this point. The prosecuting agency also did not make any effort by leading cogent and clinching evidence to prove otherwise. This disturbing feature of the case was not properly appreciated by the trial Court. P.W. 6 - Het Singh and P.W. 7 - Rambabu are close relatives of the deceased and we find no reason to disbelieve there testimony on this point. The prosecuting agency also did not make any effort by leading cogent and clinching evidence to prove otherwise. 10. Further, a mere perusal of the report Ex. P 9 shows that it contains minute details and a photographic account of the incident including the part played by each of the accused. It has been drafted in a legal form. After critical examination of all the facts and circumstances, we are satisfied that the report Ex.P 9 is a creation of post-investigation and it was anti-timed to show prompt lodging of the F.I.R. with a detailed account of the incident. 11. In the above background we also examined other documents with close scrutiny. On careful examination our view stands confirmed that investigation in the case is not fair. As per prosecution, inquest report of the deceased (Ex.P 1) was prepared at 7 a.m. on 31.7.93. On first page of this document, the date and time of information is mentioned as 31.7.93 and 8 a.m. This is a strong circumstance to falsify that Inquest report was prepared at 7 a.m. Then, this document is hand written in four full-scape pages and after the end of page 3 it is signed by the S.H.O. and time is given as 7 a.m. Then, on the text page there is over-writing where time is mentioned. In our view, this hand written document must have taken at least one hour in its preparation and when investigation itself commenced at 7 a.m. it could not be prepared and signed at 7 a.m. Then, curiously, it does not contain the marks of injuries, fractures etc. found the body of the deceased and apparent cause of death. If this document had been prepared at 7 a.m. before dead body was sent for post-mortem examination, it would have contained all these details as to the manner and by which weapon or instruments such injuries might have been caused. There is another document Ex.P 2 which is a memo describing condition of the dead body. If this document had been prepared at 7 a.m. before dead body was sent for post-mortem examination, it would have contained all these details as to the manner and by which weapon or instruments such injuries might have been caused. There is another document Ex.P 2 which is a memo describing condition of the dead body. This document is also stated to have been prepared at 7 a.m., but it does not contain signatures of all the five panch witnesses of the inquest report. We are of the opinion that Ex.P 1 and Ex.P 2 were not prepared simultaneously at 7 a.m. Then, preparation of site-plan in a murder case is an important part of investigation. It ought to have been prepared in early morning of the following day of the incident but it is dated 3.8.93. The manner in which these documents have been prepared with obvious infirmities also lends support to our view that investigation in the case is not fair investigation in a criminal case is an important aspect as evidence is collected and dues are traced-out to secure conviction of guilty persons. In tact it is foundation on which entire structure of a criminal case rests. It is, therefore, essential and in the interest of the society that the investigation should be fair and bonafide. The investigating agency must act honestly and fairly and should not resort to fabricating false evidence or creating false clues with a view to secure conviction, because such acts would shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal Justice. 12. We now proceed to consider and examine the ocular evidence produced in the case. Conviction of the appellants is based mainly on the testimony of the so called eye witnesses P.W. 3 - Man Singh and PW. 7 - Rambabu. Admittedly both of them are close relatives of the deceased and as such, are partisan witnesses. P.W. 3 - Man Singh has admitted in cross-examination that the deceased was his cousin bother, being his Uncle's son. Similarly, P.W. 7 - Rambabu is brother-in-law (Sister's husband) and the Informant P.W. 6 - Het Ram is real brother of the deceased. P.W. 3 - Man Singh claims to be an eye-witness and to be present in his field at the time of occurrence. Similarly, P.W. 7 - Rambabu is brother-in-law (Sister's husband) and the Informant P.W. 6 - Het Ram is real brother of the deceased. P.W. 3 - Man Singh claims to be an eye-witness and to be present in his field at the time of occurrence. He deposed that he came to the scene of occurrence on hearing noise and saw the entire incident. He named all the five accused persons and also described the part played by each one of them in the attack. Details of the incident have been given by the witness graphically. Then, according to him he alone was there to witness the incident, which is contrary to the prosecution case and his own statement before the police. It is important to note that the field of this witness is not shown in the site-plan Ex.P 3 to be situated near the place of occurrence. The name of this witness also does not figure in the F.I.R., even though it has been found to be a belated document, while names of Rajveer and Viri Singh are mentioned as the eye-witness. Further, his statement during investigation under Sec. 161 Cr.PC. was recorded after three days for which there is no explanation on the record. After considering all the aspect and critically examining the evidence of this witness we are satisfied that he was not present at the time of incident and he was later-on introduced as an eye-witness. The dramatic manner in which he is stated to have reached at the scene of occurrence and the description of the incident with minute details of the attack by each of the accused as given by this witness confirms our suspicion about his being present at the time and place of occurrence. 13. The testimony of another eye-witness, i.e. P.W. 7 - Rambabu also dos not stand on a better footing. Firstly, he has a dose relative of the deceased and secondly, in normal course there was no occasion for this witness to be with the deceased at the time and place of the occurrence. He is a resident of village Ibrahimpur which is six kilo- meter away from village Milsama of the deceased. Firstly, he has a dose relative of the deceased and secondly, in normal course there was no occasion for this witness to be with the deceased at the time and place of the occurrence. He is a resident of village Ibrahimpur which is six kilo- meter away from village Milsama of the deceased. According to the witness he and the deceased Bhagwan Singh were returning from Kheragatak after purchasing grocery items and when they reached near the field (garden) of Leeladhar all the five appellants made a concentrated attack on them, who were sitting in ambush with lathis. This statement does not appear to be reliable for two reasons. The field of Leeladhar, where incident took place and dead body of Bhagwan Singh was found, does not lie in the way from Kheragatek to village Milsama. As per PW. 3 - Man Singh, the way is at a distance of one mile from the field of Leeladhar. Then, no grocery item were found on the scene of occurrence when site-plan was prepared. According to the witness, they had purchased sugar, rice, gur etc., and these articles were in a bag and two bundles. The prosecution made no attempt to solve the mystry about those articles as to what they had gone after the incident. Further if this witness had been along with the deceased he would not have been left out by the assailants to be an eye-witness against them. His conduct at the time of the incident in not offering any help to the deceased to save his life also seriously creates doubt about his presence at the time of incident. We have earlier found investigation in the case to be tainted, hence such evidence of partisan character with so many infirmities and improbabilities cannot be made basis for conviction. We are also unable to believe the prosecution case as it appears to us to be quite unnatural and unbelievable that all the five accused would have come and assaulted the deceased in this manner, especially when there is no evidence of any motive. There is also no evidence on the record that the accused had prior information that the deceased would be coming in the field of Leeladhar so as to hide out there. There is also no evidence on the record that the accused had prior information that the deceased would be coming in the field of Leeladhar so as to hide out there. Then, if all the five accused had a predetermination to commit murder of the deceased, we find it difficult to believe that only one or two lathi blows would have been caused to him. In that situation, the number of injuries ought to have been much more. Thus, the cumulative effect of all, the infirmities casts a serious doubt about the presence and truthfulness of the above two eye-witnesses. The whole prosecution case appears to be shacky and doubtful for inherent defects and improbabilities running through the entire story. 14. It is true that the testimony of all eye-witnesses could not be dis-credited simply on the relationship or partisan nature of the evidence, but it puts the court on its guard to examine their evidence with care and caution. We are of the opinion that in a case when bona fides of the F.I.R. and investigation have been successfully assailed, with so many infirmities as pointed out above, it would not be safe to rely upon the testimony of P.W. 3 - Man Singh and P.W. 7 - Rambabu in absence of strong corroborative evidence of a clinching nature, which is found wanting in the present case. 15. Another serious infirmity we find in the case is that the ocular evidence is not consistent with the medical evidence. Initially, the prosecution case as per the F.I.R. was that one of the accused caught hold the deceased while remaining four persons assaulted him with lathis. During trial, both P.W. 3 - Man Singh and P.W. 7 -Rambabu tried to make improvement in their statements in the light of post-mortem report. As per post-mortem report, the deceased had a lacerated wound with haematoma on left temporal region with a fracture of left parietal bone. Though, the Doctor has maintained both the injuries to be independent and denied injury No. 2 to be a contrecoup of injury No. 1. The haematoma over the left temporal region of the deceased may not be an independent injury as a result of lathi blow as haematomas are formed when large blood vessels are injured and it is not always necessary that it is the result of an external injury. The haematoma over the left temporal region of the deceased may not be an independent injury as a result of lathi blow as haematomas are formed when large blood vessels are injured and it is not always necessary that it is the result of an external injury. Then, contrecoup injury is chiefly due to local distortion of the skull and it may be caused by rotation of the head. The argument of Shri Chaturvedi, learned counsel for the appellants that haematoma on left temporal region of the deceased with fracture of left parietal bone may be due to contrecoup can be not be lightly brudiect aside. Even we accept the statement of the Doctor that the deceased had sustained two injuries, then, too it is not in consonance with ocular evidence.Further Doctor Hari Singh Jatav, has stated that the death of the deceased ought to have been taken place after 8 to 10 hours of the incident. As per the prosecution, the incident had taken place at 7 p.m., so the death ought to have been around 1 to 3 a.m. In post-mortem report Ex.P. 8, the probable time of death has been stated about 24 hours from post-mortem examination which was made at 8 a.m. in the morning. During post-mortem examination, Maggots were found in left eye and maggot formation on both nostril and right ear was present. All these symptoms suggest that the incident had taken place much earlier then 7 p.m. as stated by the prosecution which doubt on the prosecution case and the evidence of the witnesses Man Singh and Rambabu. The other two eye witnesses, namely, Rajveer and Viri Singh have not supported the prosecution case though they are relatives of the deceased. 16. The net result of the above discussions, is that prosecution has failed to prove guilt of the appellants beyond reasonable doubt by leading cogent and reliable evidence. Hence, this appeal deserves to be allowed.Consequently, the appeal is allowed. The conviction and sentences of the appellants for the offences under Sections 302 or 302 read with Sec. 149 and 147 I.P.C. are set aside. They are acquitted of all the charges. The appellant-Dalel Singh is in Jail and he shall be released forth-with if not required in any other case. Remaining appellants are on ball and they need not surrender to their bail bonds. Their bail bonds are cancelled. *******