JUDGMENT 1. - This appeal owes its origin in the judgment dated December 11, 1995 of the learned Sessions Judge Jaipur District Jaipur whereby the accused appellant was convicted and sentenced under section 302 IPC to suffer imprisonment for life and a fine of Rs. 100/- in default to further undergo one month simple imprisonment in Sessions Case No. 64/1994. 2. Brief re sume' of the facts is that L.C. Ramesh Chand No. 625 submitted Parcha Bayan of Smt. Patasi wife of Bhagwan Sahai to the Head Constable Nand Singh of Police Station Jamuna Ramgarh Distt. Jaipur at 00.45 a.m. on March, 20, 1994 on the basis of which FIR No. 50/94 came to be registered under section 302 IPC. While registering the FIR Nand Singh directed that original Parcha Bayan shall be sent to ASI Badri Narain Sharma who had already proceeded to investigate the matter and was present at the site. A look at the Parcha Bayan demonstrates that it was recorded on March 19, 1994 at 10.30 p.m. by a police official who has not mentioned his name and post, in village Dhani Nala Sitan Neembi Police Station Jamua Ramgarh. It bears alleged right thumb impression of Smt. Patasi. 3. Smt. Patasi in the said Parcha Bayan, deposed that on March 18. 1994 when she along with her daughter Geeta stayed near hand pump installed a Hanuman Ji Ka Sthan; accused appellant put fire at their bundles of grass. They did not protest and came back to their house. On March 19, 1994 around 8-9 a.m. when she and Geeta were earring bundles of grass and her husband Bhagwan Sahai was grazing sheeps, the accused appellant came from behind and started beating Bhagwan Sahai with Sariya (iron rod). After hearing her hue and cry Gopal rushed to the place of incident. After seeing Gopal the accused appellant fled. Smt. Patasj. Geeta and Gopal attempted to lift injured Bhagwan Sahay, but after covering' some distance they put him down and sent Geeta to the village for seeking help. Villagers Jagan Nath, Jagdish, Badri, Bheru, Seta and Genda came over there and proceeded towards Bhanpur Kala with injured Bhagwan Sahay for his treatment in a camel cart but as soon as they reached near village Nimbi Bhagwan Sahay died. In order to inform the police about the incident Babulal and Prahlad had been sent to the Police Station. 4. Villagers Jagan Nath, Jagdish, Badri, Bheru, Seta and Genda came over there and proceeded towards Bhanpur Kala with injured Bhagwan Sahay for his treatment in a camel cart but as soon as they reached near village Nimbi Bhagwan Sahay died. In order to inform the police about the incident Babulal and Prahlad had been sent to the Police Station. 4. After completion of investigation charge sheet was filed and the case was committed to the court of learned Sessions Judge who framed charge under section 302 IPC. The accused appellant denied the charge and claimed trial. The prosecution examined as many as 12 witnesses in support of its case. Thereafter statement of the accused appellant under Section 313 Cr.RC. was recorded. No defence witness was produced by the accused. Learned Sessions Judge after hearing the arguments convicted and sentenced the accused appellant as indicated here in above. 5. Mr. S.C. Mittal learned counsel was appointed as amicus curiae by this court to represent appellant on July 10, 1997. When the appeal was listed, Sh. Mittal did not appear therefore show cause notice was issued to him. On Feb. 12, 1998 Mr. S.C. Mittal sought adjournment on the plea that he had misplaced the paper book. Thereafter when the matter came up for hearing on May 20, 1998 Mr. Mittal did not appear and this court adjourned the case. On October 7, 1998 Mr. Mittal again disappeared. Looking to the fact that the accused appellant is in jail, we thought it proper in the interest of justice to hear the arguments of the learned public prosecutor. 6. A close scrutiny of the material on record reveals that Dr. Durga Prasad Gupta PW 2 conducted post mortem examination of the body of Bhagwan Sahay at the residence of the deceased. He found following six external injuries 1. Punctured wound 1 cm. x 1.5 cm.dbone deep with fracture of Rt. half mandible situated 2 cm. below Rt. angle of mouth. 2. Lacerated wound 2.5x1 cm. x bond deep situated just below lateral end of right eye brow. 3. Swelling at both supra clavicular regions and lower part of neck. 4. Fracture of left clavicle at its middle with haemorrhage in mussels of neck and supra clavicular regions on both sides. 5. Bruise with abrasion at posterior and medial aspect of lower third of left forearm. 6. Lacerated wound 5 cm. 3. Swelling at both supra clavicular regions and lower part of neck. 4. Fracture of left clavicle at its middle with haemorrhage in mussels of neck and supra clavicular regions on both sides. 5. Bruise with abrasion at posterior and medial aspect of lower third of left forearm. 6. Lacerated wound 5 cm. x 1.5 cm.bbone deep at interior aspect of upper 1/4th of left leg with fracture of left tibia and fibula." According to Dr. Durga Prasad Gupta, the deceased had died because of asphyxia and syncope. Asphyxia was due to compression of neck and syncope was due to bleeding from left fractured leg bones. Ali the injuries were antemortem in nature and the deceased had died about 24 hours before the examination. 7. Brij Mohan (PW 1) deposed that Geeta came to him and he along with Jagdish, Seta, Bheru, Gendi Lal and Jagan Nath had gone to Bhandyala where they found injured Bhagwan Sahay. There Bhagwan Sahay informed them that he was beaten by Babaji but he did not disclose the name of Babaji, when Bhagwan Sahay was taken to Bhanpura Hospital in a camel cart he died. 8. Patasi (PW 3) stated that Sita Ram inflicted Sariya blows on the head and feet of Bahgwan Sahay. Geeta (PW 4) supported the version of Patasi and deposed that Sita Ram inflicted injuries on the head, feet and mouth of Bhagwan Sahay with Sariya. On being seeing Gopal the accused fled. Thereafter the had gone to the village for seeking help and Jagdish, Bheru, Papu, Badri, Gaindya and Satya came with her. 9. Gaindi Lal (PW 5) stated in his cross-examination that when they reached Bhagwan Sahay was lying unconscious. He further stated that after the villagers caught hold of Sita Ram, the Police reached there. 10. Badri (PW 6) stated that Bhagwan Sahay told them that Sita Ram Baba inflicted Sariya blow on his person. Jagdish (PW 7) is the signatory of recovery memos of clothes, soil, sariya and also of site plan but he categorically deposed that no recovery was effected before him. He also deposed in his cross examination that the villager had caught hold of Sita Ram, much before the police arrived. Jagan Nath (PW 8) in his cross-examination stated that on being asked whether he killed Bhagwan Sahay, Sita Ram told that he had nothing to do with Bhagwanya, he believes in 'Puja-path'. He also deposed in his cross examination that the villager had caught hold of Sita Ram, much before the police arrived. Jagan Nath (PW 8) in his cross-examination stated that on being asked whether he killed Bhagwan Sahay, Sita Ram told that he had nothing to do with Bhagwanya, he believes in 'Puja-path'. 11. Badri Narayan Sharma (PW 9) is the investigating officer. He admitted in his examination in chief that on March 19, 1994 Prahalad and Babulal Meena informed him that Sita Ram Das Baba gave beating to Bhagwan Sahay. This information was registered in Rojnamcha and he proceed to the place of incident. There he recorded the statement of Smt. Patasi and forwarded it to Police Station Jamva Ramgarh through L.C. and case bearing No. 50 was registered. In his cross examination he deposed that Babulal and Prahlad did not inform him about the weapon of offence. 12. Babulal (PW 10) stated that he went to police station to lodge the report. Bheru (PW 11) stated that Geeta told him that his father was killed by Babaji. When he along with other villagers went to Bhandala, Bhagwan Sahay informed that he was beaten by Babaji. 13. Gopal (PW 12) named by Smt. Patasi as the eye witness to the occurrence did not support the prosecution version and was declared hostile. 14. From a perusal of the record following important points have been emerged : (a) Ex.D-4 is the statement of Smt. Patasi recorded under Section 161 Cr.P.C. by the Investigating Officer Badri Narayan Sharma PW. 9 on 19.3.1994. But a close look of the said statement reveals that it bears the reference of FIR No. 50/94, recorded on March 20, 1994. (b) Though Badri Narayan Sharma (PW. 9) in his examination in chief asserts that on March 19, 1994 he recorded the Parcha Bayan of Patasi. But a look at Parcha Bayan Ex.D-3, demonstrates that Badri Narayan only puts his initials after recording the statement and he did not disclose his name as well as the post. (c) In the statement Ex.D/3 it has been mentioned that L.C. Ramesh Chand No. 625 produced the said Parcha Bayan before Head Constable Nand Singh. But neither Nand Singh, nor Ramesh Chand have been produced in evidence by the prosecution. (c) In the statement Ex.D/3 it has been mentioned that L.C. Ramesh Chand No. 625 produced the said Parcha Bayan before Head Constable Nand Singh. But neither Nand Singh, nor Ramesh Chand have been produced in evidence by the prosecution. (d) Gopal, the only independent witness named in the Parcha Bayan did not support the prosecution case and he has been declared hostile. (e) Though Patasi PW 3 and Geeta PW 4 deposed that accused appellant inflicted Sariya blow on the head of the deceased but from the statement of Dr. Durga Prasad Gupta PW 2 no injury was found on the head of the deceased. (f) Badri Narayan Sharma PW 9 admits that Prahlad and Babulal lodged the report on March 19, 1994 in respect of the incident and it was entered into Rojnamcha but the said report was not produced and no explanation has been given for its non-production. (g) Witness Brijmohan PW 1 deposed that on being asked, the deceased informed him that he was beaten by Babaji, but name of Babaji was not disclosed. Similarly Gandilal PW 5 stated in his cross examination that when they reached, the deceased Bhagwan Sahay was lying unconscious. 15. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above has created an impression in our minds, that the prosecution has not been able to bring home guilt to the -appellant beyond a reasonable doubt. When Prahalad and Babulal lodged the FIR on 19.3.1994, and it was entered by the Investigating Officer in the Rojnamcha, there was no reason with the Investigating Officer to withhold the said FIR. The conduct of Badri Narayana Sharma Investigating Officer in not disclosing his name as well as post while recording Parcha Bayan of Patasi creates doubt in our minds in respect of fairness of the investigation. We fail to understand as to why two statements of Smt. Patasi were recorded by the Investigating Officer. When FIR was lodged by Babulal and Prahalad what was the necessity to record Parcha Bayan of Smt. Patasi. Further look at the Ex.D/3 Parcha Bayan of Patasi reveals that it was recorded by Badri Narayan Sharma when he already proceeded for investigation after registering FIR lodged, by Babulal and Prahalad in Rojnamcha. When FIR of the case was already lodged what was the necessity of recording another report. Further look at the Ex.D/3 Parcha Bayan of Patasi reveals that it was recorded by Badri Narayan Sharma when he already proceeded for investigation after registering FIR lodged, by Babulal and Prahalad in Rojnamcha. When FIR of the case was already lodged what was the necessity of recording another report. There is one more doubtful circumstances. The statement of Smt. Patasi under Section 161 Cr.RC. was recorded by the Investigating Officer and it bears FIR No. 50/94 dated March 20, 1994 but at the end of the statement the Investigating Officer Badri Narayan Shama put March 19, 1994, as the date of recording the said statement. When it was recorded on 19.3.94, how it could bear FIR No. 50/94 which itself was registered on 20.3.94. Further we have found over writing in the Inquest report Ex.P/9. Date of FIR which is admittedly 20.3.94. Thus it appears that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by Badri Narayan Sharma PW 9. 16. After analysing the entire evidence, we are of the view that the alleged eye witnesses Patasi PW 3 and Geeta PW 4 had not witnessed the occurrence from their eyes. They were made eye witnesses by the Investigating Officer Badri Narain Sharma PW 9. The fact of withholding the FIR lodged by Babu Lal PW 10 further strengthens our view. Statement of Brij Mohan PW 1 that deceased Bhagwan Sahay did not name the assailant, creates doubt in the prosecution story. The statements of Patasi and Geeta also do not find support from the post mortem report as well as the statement of Dr. Durga Prasad Gupta (PW 2). A doubt in created in our minds in respect of truthfulness of ocular testimony. The recovery of Sariya has not been supported by Jagdish PW 7. The only independent witness Gopal PW 12 named in the Parcha Bayan did not support the prosecution case and has been declared hostile. Durga Prasad Gupta (PW 2). A doubt in created in our minds in respect of truthfulness of ocular testimony. The recovery of Sariya has not been supported by Jagdish PW 7. The only independent witness Gopal PW 12 named in the Parcha Bayan did not support the prosecution case and has been declared hostile. A look at the seizure memo of Sariya Ex.P/2 reveals that it did not bear the blood stained marks. The FSL report has not been produced by the prosecution so as to connect the recovered articles with the crime. The learned trial court has not properly considered the infirmities of the prosecution case. Withholding of FIR by the Investigating Officer is a very strong circumstance which ought to have been considered by the learned lower court. Suspicion however strong cannot take the place of proof and the accused appellant could not have been convicted in the instant case. 17. The upshot of the above discussion is that the prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt and the learned trial court has committed illegality in convicting the accused appellant under Section 302 IPC. 18. Resultantly, the appeal succeeds and is hereby allowed. The conviction and sentence of the accused under Section 302 IPC is set-aside and he stands acquitted from the said charge. Fie shall be set at liberty forthwith it not required in any other case. *******