A. R. TIWARI, J. ( 1 ) THE appellants, two in number, have filed this appeal under Section 374 of the Code of Criminal Procedure (for short Code) against judgment dated 24-9-1993 rendered by Additional Sessions Judge, Narsingarh, District Rajgarh, (Bisora) in Sessions Trial No. 50/88, thereby convicting the appellants under Section 302 I. P. C. for the murder of Prakash Mehta on 26-9-1987 at 7. 00 p. m. between village Jamuniya and Sagpur and sentencing each of them to undergo imprisonment for life. ( 2 ) FACTS lie in a narrow compass. Dhanna, father of the appellant Ladsingh had obtained loan from deceased Prakash Mehta. After death of Dhanna, the deceased demanded payment of money from Ladsingh. On refusal, deceased filed the suit against Ladsingh for recovery of the amount. Similarly on non-payment of money taken from the deceased by appellant Ghanshyam, the deceased filed a suit against him also. There was dispute of land between Ghanshyam and the deceased. On 26-9-1987 at about 7. 00 p. m. the appellants attacked and assaulted the deceased by farsa and axe. Laxman (PW 5) informed the Choukidar Ramnath (PW 4 ). PW 4 lodged the First Information Report (Ex. P /11) saying that Laxman informed him that some one has killed the deceased Prakash Mehta. The autopsy was conducted. The post-mortem report is Ex. P/15. The police also registered Merg as 0/87 under Section 174 of the Code (Ex. P117 ). Spotmaps (Exs. P/16 and P/18) were prepared. Articles were seized. Chemical Examiners report is Ex. P/23. The report of Serologist is Ex. P /24. The statements of witnesses were recorded. After completion of the investigation, challan was filed. Case was committed for trial. The Sessions Court framed the charge under Section 302 I. P. C. to which the appellants pleaded not guilty. Thereafter prosecution examined PW 1 to PW 19. The appellants proved F. I. R. of Crime No. 156/87 registered at Police Station Narsingarh under Section 307 I. P. C. (Ex. 0/7) which contained the version that unidentified persons had assaulted the deceased who was lying on the spot in injured position. After evaluation of the evidence, the Sessions Court recorded conviction and sentence as noted above. The appellants have questioned the validity of the same in this appeal. ( 3 ) WE have heard Mr. Ashok Shukla, learned Counsel for the appellants and Mr. After evaluation of the evidence, the Sessions Court recorded conviction and sentence as noted above. The appellants have questioned the validity of the same in this appeal. ( 3 ) WE have heard Mr. Ashok Shukla, learned Counsel for the appellants and Mr. Girish Desai, learned Government Advocate for the respondent/state. ( 4 ) THE Counsel for the appellants submits that the appellants aye erroneously connected with the alleged crime and that the judgment, mainly based on the testimony of sole witness Sardarshing (PW 14) is unsustainable in law. He submitted that firstly this witness was interrogated late and secondly his evidence is artificial a she did not inform the police or any other person. He further submitted that FIRs (Exs. Pill and 0/7) do not name the appellants. He, therefore, prayed that the judgment deserves to be demolished and the appellants merit to be acquitted. The Government Advocate, on the other hand, has supported the judgment. ( 5 ) BEFORE proceeding to examine the worth of contentions, it is apt to mention that the statements (Exs. /19 and P/20) of the appellants were recorded on 9-10-1987 by Shri Dinesh Kumar Naik, Civil Judge, Class-1 and Judicial Magistrate, First Class, Betul (PW 18) under Section 164 of the Code but the Sessions Court did not treat the same as admissible or dependable (Para 42 of the judgment ). In our view these are rightly excluded. ( 6 ) THERE is no opposition to the finding that deceased died a homicidal death. The core question is as to who has done him to death. ( 7 ) THE fate of this appeal depends on the trustworthiness or otherwise of the statement of the solitary witness PW 14 Sardar Singh as is noted by the Sessions Court in para 39 of its judgment. The testimony of this witness is to be appreciated with due focus on availability or non-availability of light at the time of the incident. Laxman (PW 5) has stated that it was dark night (Para 1 ). We shall revert to aforesaid statement of PW 14 after noticing features, chronicled below, starring in the face: (i) PW 11 Gopalsingh claims to hear the voice of the deceased naming the appellants as his assailants. PW 14 Sardar Singh (sole eye-witness) claims to hear similar voice and to have witnessed the appellants assaulting the deceased. We shall revert to aforesaid statement of PW 14 after noticing features, chronicled below, starring in the face: (i) PW 11 Gopalsingh claims to hear the voice of the deceased naming the appellants as his assailants. PW 14 Sardar Singh (sole eye-witness) claims to hear similar voice and to have witnessed the appellants assaulting the deceased. PW 16 Parasmal brother of the deceased, claims to know from PW 14. But PW 11 and PW 14 do not inform the police in terms of Section 39 of the Code. PW 16 goes to Police Station (Para 1) but turns inactive on acquiringknowledge of report by Chaukidar (PW 4) and does not disclose names of the assailants to Police. (ii) PW 4 Ramnath (Ram a Kotwar) lodges report (Ex. P111) on 26-9-1987 at 8. 00 p. m. at P. S. Narsingarh on information by PW 5 Laxman to the effect that someone has assaulted the deceased (kisi ne kat diya hai) who was lying in unconscious state. If PW 5 is the witness to unfold the story", he should have known everything before informing pw 4. (iii) Another report (Ex. D/7), registered at Police Station also contains the version that unidentified persons (Agyat Logon ne) have assaulted the deceased. Merg intimation (Ex. P /17) also does not name appellants. (iv) There was hostility between the appellants and the deceased. (v) There is only solitary eye witness (PW 14) whose statement was not recorded till lapse of four days and whose statement (not produced) is recorded again after 15 days (Para 12 ). (vi) There is no evidence about availability of light to permit identification by PW 14 or 1 the spot particularly when PW 8 deposed that it was dark night (Para 1 ). Spot maps (Exs. P/16-P/18) do not recite about existence of light or witnessing by PW 14. ( 8 ) NOW we focus attention on the above statement of PW 14. It is mere tricious to say that deceased cried with names and PW 14 found it audible enough from the distance of 100 steps. It is equally untrustworthy that he witnessed the assault with stated weapons by the appellants. PW 14, interrogated late and twice, cannot be branded as entirely reliable. Minus this brand, as held in Vadivelu Thevar v. The State of Madras, his testimony is not free from taints. It is equally untrustworthy that he witnessed the assault with stated weapons by the appellants. PW 14, interrogated late and twice, cannot be branded as entirely reliable. Minus this brand, as held in Vadivelu Thevar v. The State of Madras, his testimony is not free from taints. It is doubtful if there was sufficient artificial light. Light and truth are not distant neighbours. Plato held that God is truth and light his shadow. The allegation in absence of proof for light is unconvincing and far from truth, Rajvirsingh and Anr. v. State of M. P. may be referred. There is no mention about this in Exs. P/li, P116. P\17, P/18 and D/7. The conclusion of Court below that it may not have been dark enough contrary to deposition of PW 5 is conjectural and rejectable. The evidence led is conglomeration of contradictions and artificialities. Appellants seemed to be roped in on flight of imagination and suspicion. It emerges that investigator attempted' to spun and structure story devoid of reality. Shakespeare spoke in Macbeth that. The attempt and not the deed confound us. The conclusion, as recorded in para 29, about absence of enough darkness is without factual foundation and thus infirm. ( 9 ) THE witnesses did not discharge obligations as required under Section 39, of the Code. This is additional factor to discard their testimony. In State of M. P. v. Badrilal, it is held that: in view of Section 39 of the Code of Criminal Procedure, it was obligatory on Saudansingh (PW 1) to have lodged the report to this incident with the police if in fact he had witnessed the occurrence. These two factor are sufficient to discard his testimony. ( 10 ) IT is not natural that Exs. P/li and D/7 should have omitted names. This omission affects probability in terms of Section ii of Evidence Act. In Ram Kumar Pande v. The Stare of Madhya Pradesh, it is held that: no doubt, an F. I. R. is a previous statement which can strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, to far as they were known upto 9. 15 p. m. on 23-1-1970, were bound to have been communicated. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, to far as they were known upto 9. 15 p. m. on 23-1-1970, were bound to have been communicated. If his (daughter had seen the appellant inflicting a blow on Harbinder Singh. , the father would certainly have mentioned it in the F. I. R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section Li of the Evidence Act in judging the veracity of the prosecution case. T ( 11 ) WHEN names are not mentioned in FIR. the story as held in Sitaram v. State shows the symptom of falsity and fabrication. If PW 14 had heard and seen then why recourse to section 164 of the Code was taken? In any case, doubt is not incinerated. 1984 MPW-292-Para 9 may be referred. ( 12 ) BENEFIT of doubt, when in existence, should belong to the appellants. In Vijayee Singh and Ors. V. State of U. P. , it is laid down that: the phrase burden of proof is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. ( 13 ) IN the face of aforesaid features and infirmities, it seems hazardous to act upon the lone testimony of PW 14 or on testimony of other witnesses naming the appellants via voice or information or stating about seizure of weapons etc. The story is apocryphal. Medical evidence does not improve the case of prosecution. The story as spun gives rise to doubt about veracity. It seems that needle of suspcision fell on the appellants due to pre-existing testimony and the investigator tried to involve the appellants even on their own statements under Section 164 of the Code and did precious little to do full and fair investigation and to arrive at the truth. ( 14 ) IT is axiomatic that the Court below did not evaluate the evidence and probabilities in proper perspective and allowed it self to fall into error. ( 14 ) IT is axiomatic that the Court below did not evaluate the evidence and probabilities in proper perspective and allowed it self to fall into error. ( 15 ) WE, therefore are unable to ditto the colorific and concave conclusion of the Court below and unhesitatingly dislodge the same as illegal illogical and perverse. The appellants merit compurgation. Ex. consequenti, we allow the appeal, vacate the conviction, sentence and acquit the appellants of charge under Section 302 I. P. C. The appellants are reported to be on bail. Their pail bonds shall now stand discharged. Record be returned with a copy of this judgment to the concerning Court as well as the author of the judgment dislodged herein. Appeal allowed. .