Judgment B.P.Singh and S.K.Katriar JJ. 1. The sole appellant herein, namely, Basudeo Mandal has been convicted under Sec. 302, I.P.C. by the Sessions Judge, Dumka in Sessions Case No. 166 of 1996 dated 23rd March, 1998 for having committed the murders of Jiyalal Sah and his wife Kaushalya Devi. The learned Sessions Judge has awarded the death penalty and has made a reference to this Court for the confirmation of the death sentence imposed by him. 2. The prosecution case is that on the night intervening the 23rd and 24th February, 1996, the appellant along with 14-15 unknown persons entered the house of the informant and, apart from looting away articles from the house and causing injuries to other members of the family, committed murders of Jiyalal Sah, son of the informant and Kaushalya Devi, the wife of Jiyalal Sah. The prosecution case is that it was the appellant who cut the necks of both the deceased causing their death. So far as the other accomplices are concerned, they have not been identified by any of the witnesses and therefore, only the appellant was put up for trial charged of the offence under Sec. 302, I.P.C.. The fardbeyan of Ram Prasal Sah, the informant, is said to have been recorded at the Sadar Hospital, Dumka, where the injured had been taken for treatment, and on the basis of the said fardbeyan, a formal first information report was drawn up at police station Jama. After investigation, the appellant was put up for trial before the Sessions Judge, Dumka. 3. The informant Ram Prasad Sah, who, according to the prosecution, was also assaulted by the miscreants, died a few months after the case was registered against the appellant and was, therefore, not available to depose in the sessions trial. 4. In his fardbeyan, Ext-7, the informant Ram Prasad Sah has stated that he was making a statement at the Sadar Hospital, Dumka before the Officer-in-charge of Jama police station at 7.30 a.m. in the morning. The fardbeyan also discloses that the same had been recorded by sub-Inspector of Police G.K. Ambastha, Officer-in-Charge Jama police station, P.W. 13. 4. In his fardbeyan, Ext-7, the informant Ram Prasad Sah has stated that he was making a statement at the Sadar Hospital, Dumka before the Officer-in-charge of Jama police station at 7.30 a.m. in the morning. The fardbeyan also discloses that the same had been recorded by sub-Inspector of Police G.K. Ambastha, Officer-in-Charge Jama police station, P.W. 13. In his fardbeyan, the informant stated that on the night intervening the 23rd and 24th February, 1996, while he and his family members were sleeping in their house, at about 11.30 p.m., Basudeo Mandal, appellant herein along with 14-15 unknown miscreants armed with sword, tanga, lathi, danda, etc. entered his Angan after scaling down his boundary wall while 5 to 6 miscreants remained outside the house. After entering the Angan, they broke the door latch and opened the door through which one could go outside the Angan. The appellant along with miscreants entered the house and dragged his eldest son Jiyalal Sah from his room and started taking him outside. The informant and others protested whereupon the miscreants assaulted them with lathi, danda, etc. as a result of which the informant, his wife Sarswati Devi, P.W. 10, his son Chhote Lal, P.W. 4 and Anita Devi, P.W. 8, wife of P.W. 4, were injured. His eldest son, Jiyalal Sah, was dragged in the Angan and after tying both his hands, he was made to lie in the Angan while 5 to 6 miscreants pressed his legs and chest. The wife of Jiyalal Sah came running to rescue her husband, but by then the appellant had cut the neck of Jiyalal Sah with a blow of his sword as a result of which he died instantaneously. Seeing this his daughter in-law Kaushalya Devi fled outside but the miscreants chased her and caught her in the Bari and cut her neck with sword and tangi. They also caused injuries on her arm as a result of which she died. After killing his son and daughter-in-law, the appellant started searching for his son, Jai Prakash and questioned his grand son Sahab P.W. 2 about the whereabouts of Jai Prakash. P.W. 2, told him that Jai Prakash was in the front room whereafter the .miscreants went towards the front room and broke open the lock and entered inside the room. After killing his son and daughter-in-law, the appellant started searching for his son, Jai Prakash and questioned his grand son Sahab P.W. 2 about the whereabouts of Jai Prakash. P.W. 2, told him that Jai Prakash was in the front room whereafter the .miscreants went towards the front room and broke open the lock and entered inside the room. They did not find his son Jai Prakash there and so they scattered the articles kept in that room whereafter they all fled away towards the east. According to the informant, the miscreants remained in the house for about half an hour. They had also taken out the jeweleries etc. kept in a box. The accomplices of Basudeo Mandal, appellant, were aged about 25 to 30 years and were slightly dark-complexioned and of wheatish-complexion whom the informant could recognise if they were shown to him. It was stated in the fardbeyan that the dead bodies of his son and his daughter-in-law were lying in the village and that the informant and others had reached the hospital with the help of villagers. A motive is also suggested in the fardbeyan and it is stated that 7 or 8 years ago one Hira Nath Mandal had been murdered by the appellant Basudeo Mandal and in that case Jiyalal Sah (deceased) was a witness. The appellant was convicted in that case and on account of that he entertained a grudge and always used to threaten them. 5. The said fardbeyan was sent to Jama police station for registering a case and after a case was registered, the same was investigated by Sub-Inspector-G.K. Ambastha, P.W. 13 who ultimately filed a charge-sheet against the appellant. The appellant was put up for trial before the Sessions Judge, Dumka, who has found him guilty of the offence under Sec. 302,1.P.C. 6. At the trial as many as 14 witnesses were examined. The conviction of the appellant is based primarily on the evidence of P.W. 1 Ramanand Sah, the son of the informant and brother of deceased Jiyalal Sah, and P.W. 10 Sarswati Devi, the wife of the informant and mother of deceased Jiyalal Sah. The prosecution, however, examined several eye-witnesses. P.W. 1 Ramanand Sah as noticed earlier is the son of the informant and brother of the deceased. P.W. 2 Saheb Prasad Sah is the son of the deceased, but has been declared h astile. The prosecution, however, examined several eye-witnesses. P.W. 1 Ramanand Sah as noticed earlier is the son of the informant and brother of the deceased. P.W. 2 Saheb Prasad Sah is the son of the deceased, but has been declared h astile. P.W, 3 Sunita Kumari is a daughter of the deceased, and she was also declared hostile. P.W. 4 Chhote Lal Sah is an injured witness and was the son of the informant and brother of deceased Jiyalal Sah. He was also declared hostile by the prosecution. P.W. 5 Ram Prasad Mandal is a witness to the inquest and also claims to have come to the place of occurrence soon after themiscreants fled. He has also been declared hostile. P.W. 6 is the doctor who examined the injuries of Chhote Lal Sah, P.W. 4, while P.W. 7 is the doctor who conducted the post-mortem examination on the dead bodies of the deceased. P.W. 8 Anita Devi is the wife of Chhote Lal and the daughter-in-law of the informant. She has also been declared hostile. P.W. 9 is an another doctor who examined the injuries of Anita Devi and Ram Prasad Sah. P.W. 10 is Sarswati Devi, the wife of the informant and the mother of the deceased Jiyalal Sah. P.W. 11 Sukhdeo Mandal is also inquest witness and also claims to have reached the place of occurrence soon after the departure of the miscreants. P.W. 12 Chandrika Prasad Singh Yadav is a formal witness who has proved the formal first information report recorded at the police station, Jama. P.W. 13 Girish Kumar Ambastha is the officer-in-charge of Jama police station who investigated the case. Lastly, P.W. 14 is a formal witness who has proved the signatures on Exhibits 11,12 and 13 which relate to another case. 7. We shall first deal with the medical evidence on record. P.W. 6 Dr. K.D. Sinhahas depose that on 24-2-1996 while he was posted at Sadar Hospital, Dumkahe had examined Chhote Lal Sah, P.W, 4 at about 2 p.m. and found the following injuries on his person. (i) Lacerated wound 1. 1/2" l/4"x scalp deep over occipital and parietal region of the scalp. The injury was simple in nature and caused by hard and blunt substance and had been caused within six hours. The injury report prepared by P.W. 6 is Ext-3. The injury slip prepared by the Officer-in-Charge Jama police station is Ext-8/2. (i) Lacerated wound 1. 1/2" l/4"x scalp deep over occipital and parietal region of the scalp. The injury was simple in nature and caused by hard and blunt substance and had been caused within six hours. The injury report prepared by P.W. 6 is Ext-3. The injury slip prepared by the Officer-in-Charge Jama police station is Ext-8/2. 8. P.W. 9 Dr. Dilip Singh was posted at Sadar hospital Dumka on 24-2-1996 and on that day at about 8.20 a.m. he examined Anita Devi, P.W. 8, and found the following injury on her person. (i) Abrasion 1/4" x 1/4" on upper part of nose. The injury was simple in nature caused by hard and blunt substance within 12 hours. The said injury report has been marked as Ext-5, and the injury slip prepared by the police officer has been marked as Ext-8/1. On the same day at about 8.10 a.m., he examined Ram Prasad Sah, the informant (since deceased) and found the following injuries on his person: (i) Lacerated wound 1" x 1/2" x skin deep on middle of chin. (ii) Lacerated wound 1/2" x 1/4" x skin on right since of face near chin (iii) Abrasion 1/4" x 1/4" on left side efface near. All the injuries were simple in nature caused within 12 hours by hard and blunt substance. This injury report has been marked as Ext-5/ 1, and the injury slip prepared by the police officer has been marked as Ext-8. 9. P.W. 7 Dr. Sita Ram Sah has deposed that on 24-2-1996 he was posed at Dumka Sadar Hospital as the Civil Assistant Surgeon, and on that day at about 2 p.m. he conducted the post-mortem examination on the dead body of Smt. Kaushalya Devi. He found the following ante-mortem injuries on her person: (i) Incised wound over whole of the neck obliquely and transversally placed cutting trachea and oesophagus and large blood vessels (all) bone and other structures in the neck, only a small part of skin is attached in the neck in the right side. (ii) Incised wound 3" x 2" muscles deep over left shoulder. (iii) Incised wound 1" x 1/2" x muscle deep over left wrist. In his opinion, death was caused due to shock and haemorrhage as a result of injury No. (i) which was sufficient to cause death in ordinary course of nature. (ii) Incised wound 3" x 2" muscles deep over left shoulder. (iii) Incised wound 1" x 1/2" x muscle deep over left wrist. In his opinion, death was caused due to shock and haemorrhage as a result of injury No. (i) which was sufficient to cause death in ordinary course of nature. The weapon used for causing the injuries was, in his opinion, a sharp-cutting weapon such as a sword or a tangi and the time that elapsed since death was within 24 hours. On the same day, he conducted the post-mortem examination on the dead body of Jiyalal Sah and found the following ante-mortem injuries on his person: (i) Incised wound over whole of neck in middle obliquely and transversally placed cutting trachea, large vessels (all) oesophagus and vertebra and other structures in the neck. (ii) Diffuse swelling over right side of chest. On dissection, there was fracture of 4th to 9th ribs of right side. On further dissection, pleura in lungs found ruptured and heamatoma was there in pleural cavity. On dissection of abdomen lived was found lacerated and collection of blood was there in planetarium cavity. (iii) Incised wound over right pinna through and through. In his opinion, death was due to shock and haemorrhage as a result of injury Nos. (i) & (ii) which were sufficient to cause death in ordinary course of nature. The injuries were caused by sharp cutting weapon except injury No. (ii) which appeared to have been caused by hard and blunt substance. In both cases, he found undigested food in the stomach of the deceased and in his opinion, the occurrence took place immediately after the deceased had taken their meals. 10. The medical evidence on record proves beyond doubt that the deaths of Jiyalal Sah and his wife Kaushalya Devi were homicidal and in both the cases the necks had been badly cut by sharp-cutting weapon. 11. We shall first take up for consideration the evidence of the witnesses other than P.Ws. 1 and 10 on whom reliance has been placed by the learned Judge in convicting the appellant. 12. P.W. 2 Saheb Prasad Sah at the time of his deposition was a young lad aged about 11 years and, therefore, the learned Sessions Judge put questions to him to assess whether he was in a position to understand the questions and give coherent replies. 12. P.W. 2 Saheb Prasad Sah at the time of his deposition was a young lad aged about 11 years and, therefore, the learned Sessions Judge put questions to him to assess whether he was in a position to understand the questions and give coherent replies. Having satisfied himself, this witness was permitted to depose. He stated that an occurrence took place in the night of 23rd February, 1996, which was a Friday at village Bandopiyara. This witness is the son of deceased Jiyalal Sah. On the fateful night, he had slept with his brother, father and mother. The miscreants broke open the door and started assaulting his father and mother. The miscreants were about 16-17 in number. When they protested, they were also assaulted. They tied the hands of his father from behind and dragged him to the Courtyard and made him lie down in the Courtyard. Four-five persons pressed his hand and feet and cut his neck. This witness could not identify the person who cut the neck. His mother started weeping and wailing, whereupon the miscreants chased her. They cut the hand of the mother first and later they assaulted her on her head and thereafter they cut. her neck. He had heard from his grand father that a quarrel had taken place between his father and appellant-Basudeo Mandal long ago and his father, grand-father and uncle had deposed in the murder case of Hira Nath Mandal against appellant-Basudeo Mandal. He identified Basudeo Mandal present in Court. The witness was declared hostile and on cross-examination by the prosecution, he admitted that he had stated before the police that by the time, the mother went running to the courtyard, Basudeo Mandal the appellant had cut the neck of his mother with a blow of sword and seeing this his mother ran outside. In his cross-examination by the Counsel for the accused, he admitted that he had not recognised anyone when the assault started and he had remained in the room. When the villagers assembled, he saw that his father was lying dead and his mother was also lying dead in the Ban (kitchen garden). To a specific question whether he had seen any one assaulting, he stated that he had witnessed the assault, but could riot identify the person. When the villagers assembled, he saw that his father was lying dead and his mother was also lying dead in the Ban (kitchen garden). To a specific question whether he had seen any one assaulting, he stated that he had witnessed the assault, but could riot identify the person. It would thus appear from the deposition of this witness that though he had witnessed the occurrence, he had not identified the miscreants. 13. The deposition of Sunita Kumari, P.W. 3, is also to the same effect. She was aged about 12 years when she deposed at the trial, and, therefore, after satisfying himself that she was in a position to understand the question and gave proper answers, the Sessions Judge permitted her to depose. She has also deposed about the manner in which the dacoits entered the house numbering about 20-22 and assaulted her father, uncle, grand-father and all members of the family. She has categorically stated that she did not recognise any of the dacoits as they covered their faces with cloth. They forced both of them (brother and sister) to keep lying on the cot while 5 to 6 persons took away her father and murdered him later. This witness was declared hostile. She admitted having stated before the police that after breaking the door, Basudeo Mandal, appellant, and others started taking away his father by dragging him out, and that when her uncle, aunt, grand-father protested, the miscreants assaulted them also. She denied having stated before the police that by the time her mother went running, the appellant Basudeo Mandal had cut the throat of her father with his sword and caused his death. The testimony of this witness also does not support the case of the prosecution as against the appellant though she has generally deposed to the manner in which the occurrence took place on that night. 14. Chhotelal Sah, P.W. 4, is another son of the informant. According to this witness at about 11-12 O clock in the night, the dacoits broke open the door after scaling down the wall and started assaulting. The dacoits were 25-30 in number, but he did not identify any of the dacoits. His father had identified them, but he could not say whether he had told him the names of the assailants. The dacoits were 25-30 in number, but he did not identify any of the dacoits. His father had identified them, but he could not say whether he had told him the names of the assailants. This witness claimed that he was assaulted by the dacoits who had caused an injury on his head. This witness deposed that the miscreants had assaulted his father and cut his brother and his brothers wife, but he could not identify the person who assaulted his brother and brothers wife. According to this witness, his father Ram Prasad Sah, the informant died in the hospital after 2 to 2 1 / 2 months of the occurrence. He had succumbed to his injuries after he was assaulted by the dacoits. This witness has identified the signature of his father on the fardbeyan as also the signature of Jai Prakash Sah. This witness was also declared hostile and in his cross-examination, he admitted that he had given statement before the police that some of the miscreants armed with sword, Tonga and lathi, etc. entered the Courtyard of his house, but he had not mentioned the name of any one of them. He denied having made a statement that Basudeo Mandal entered the house and started taking away his brother to the Courtyard by dragging him. He also denied having stated before the police that Basudeo Mandal had cut the neck of his brother. He admitted to have stated that when he went to see later he found the neck and arm of his brothers wife cut and her found he dead. He categorically stated that he could not identify any of the dacoits. After the dacoits fled away, they raised an alarm and villagers assembled. He had accompanied the injured to the Dumka Hospital. Though this witness is an injured witness, he has stated that he could not identify any of the miscreants but he has generally supported the prosecution case about the manner of occurrence on the fateful night. He has also admitted that the villagers assembled soon after the occurrence. Though his father had identified the miscreants, he could not say whether his father had disclosed the names to him. 15. P.W. 8 Anita Devi is the wife of P.W. 4 Chhote Lal Sah. She has stated that the miscreants were 20-25 in number and they had assaulted her as well as her husband. Though his father had identified the miscreants, he could not say whether his father had disclosed the names to him. 15. P.W. 8 Anita Devi is the wife of P.W. 4 Chhote Lal Sah. She has stated that the miscreants were 20-25 in number and they had assaulted her as well as her husband. When she was hit on her nose, she became unconscious. She did not identify the miscreants. After the miscreants had gone away, she searched for her family members and found the dead body of Jiyalal Sah lying in the Courtyard and the dead body of Jiyalals wife lying in the Bari. This witness was also declared hostile. She in her cross-examination reiterated her statement that she had not identified anyone and that she had not mentioned the name of any of the miscreants before the villagers. 16. We shall now consider the evidence of P.Ws. 5 and 11 who are witnesses to the inquest report and who also claim to have come to the place of occurrence soon after the miscreants had fled. P.W. 5 Ram Prasad Mandal deposed that the occurrence took place on 23rd February, 1996 at about 11-12 O Clock in the night, On alarm being raised, he went to the place of occurrence and found the two dead bodies lying there. The persons present there were saying that unknown persons had killed them. When Sub-Inspector of Police came on the 24th February, 1996, he was present when the inquest reports of Kaushalya Devi and Jiyalal Sah were prepared. He proved his signature on the inquest reports which were marked as Exts. 2/1 and 2/2. This witness was declared hostile. In cross-examination, he stated that his statement was not recorded before the Sub-Inspector of Police and he had not given any statement to the effect that the informant had named the appellant- Basudeo Mandal as the accused, He further stated that when he went to the place of occurrence, he talked to all the members of Jiyalals family. He met Ram Prasad Sah, the informant, Chhote Lal Sah, P.W. 4, Ramanand Sah, P.W. 1, Anita Devi, P.W. 8, Sarswati Devi, P.W. 10, Saheb, P.W. 2 and Sunita P.W. 3, but none of them mentioned the name of Basudeo Mandal. 17. P.W. 11 is Sukhdeo Mandal who is also a witness to the inquest reports. He met Ram Prasad Sah, the informant, Chhote Lal Sah, P.W. 4, Ramanand Sah, P.W. 1, Anita Devi, P.W. 8, Sarswati Devi, P.W. 10, Saheb, P.W. 2 and Sunita P.W. 3, but none of them mentioned the name of Basudeo Mandal. 17. P.W. 11 is Sukhdeo Mandal who is also a witness to the inquest reports. He also claims to have come to the place of occurrence on hearing the alarm raised on the night of occurrence. He went in the night itself to the place of occurrence. The Sub-Inspector of Police came in the morning and the inquest reports of Jiyalal Sah and Kaushalya Devi were prepared in his presence and he signed both the reports which he proved and which were marked as Ext-2/3 and Ext-2/4. He was also a witness to the seizure list which was marked as Ext-2/5. In cross-examination, he stated that several villagers had come after hearing hull a along with him. The people were saying that unknown persons had committed the murders and ran away. Chhote Lal Sah, P.W. 4, wife of Chhote Lal Sah, P.W. 8, Ram Prasad, the informant, Ramanand P.W. 1 and wife of Ram Prasad, P.W. 10 were saying that the people had gone away after killing at 12 O Clock in the night, This witness stated that he had also gone to the place of occurrence at about 12 O Clock in the night. 18. The deposition of P.W. 5 and P.W. 11 who are co-villagers is to the effect that they had rushed the place of occurrence of hearing the alarm in the night itself and they also witnessed the inquest reports which were prepared by the police officer in the morning. What is significant is the fact that both of them had stated that the members of the family whom they had met did not mention the name of appellant Basudeo Mandal, but had in fact, stated that the murders were committed by unknown persons. The something was also being said by the persons present there. Counsel for the appellant has, therefore, placed reliance upon their evidence and submitted that soon after the occurrence the names of the miscreants were not known to anyone, including the informant and his family members, and though they had talked to the member of the family, they did not disclose the name of the appealed Basudeo Mandal or anyone else. Counsel for the appellant has, therefore, placed reliance upon their evidence and submitted that soon after the occurrence the names of the miscreants were not known to anyone, including the informant and his family members, and though they had talked to the member of the family, they did not disclose the name of the appealed Basudeo Mandal or anyone else. This was because the murders had been committed by unknown persons. 19. P.Ws. 12 and 14 are formal witnesses and neither the appellant nor the State has relied upon their testimony. That leaves us with the testimony of the Investigating Officer, P.W. 13. Girish Kumar Ambastha, P.W. 13 stated that on 24-2-1996, he was posted as the officer-in-charge of Jama police station. In the afternoon of that day, he received information that two persons had been killed by miscreants and some people were injured in village Bando and that the injured persons had been taken to the Sadar Hospital, Dumka for treatment. On the basis of this information, he made station diary entry No. 410 dated 24-2-96 time 6.30 p.m. in the evening and set out for hospital. After reaching the hospital, he recorded the statement of Ram Prasad Sah, the informant and sent the fardbeyan to the police station for instituting a case. The formal first information report was in the pen of Chandrika Prasad Yadav. P.W, 12. He has deposed that the injury slip of Anti Devi P.W. 8 was in the hand-writing of P.W. 12, but the injury slip prepared in respect of the injury of Chhote Lai Sah P.W. 4 was in his hand-writing and under his signature. He left for the place of occurrence and inspected the place of occurrence as shown by Chhote Lai Sah, P.W. 4. He prepared the inquest reports of Jiyalal Sah and his wife in the presence of Ram Prasad Mandal, P.W. 5 and Sukhdeo Mandal, P.W. 11. He recorded the statement of other witnesses at the place of occurrence and seized the blood-stained earth in presence of the same witnesses, P.Ws. 5 and 11 and prepared a seizure list which was in his pen and under his signature. He sent the dead bodies for post-mortem examination and then left for the Sadar Hospital where he recorded the statement, of Anita Devi, P.W. 8. He arrested appellant Basudeo Mandal and also recorded his confessional statement. 5 and 11 and prepared a seizure list which was in his pen and under his signature. He sent the dead bodies for post-mortem examination and then left for the Sadar Hospital where he recorded the statement, of Anita Devi, P.W. 8. He arrested appellant Basudeo Mandal and also recorded his confessional statement. He has deposed to the effect that P.Ws. 2. 3, 4 and 8 had mentioned the name of Basudeo Mandal in their statements before the police recorded under Sec. 161, Cr. P.C. The informant had also mentioned the name of the appellant in the course of investigation. He has further stated that P.W. 1 Ramanand Sah had not stated before him that the miscreants had covered their faces with muffler. 20. Before considering the evidence of P.W.s 1 and 10, we consider it appropriate at this stage to consider the submission of Counsel for the appellant that the first information report in this case is a fabricated document and the real fardbeyan has not seen the light of the day. According to him, the fardbeyan which was produced at the trial was an ante-timed document and was perhaps prepared much later. In support of the submission, Counsel for the appellant has relied upon the deposition of the Investigating Officer, P.W. 13 and the fact that the Special report was seen by the Chief Judicial Magistrate on the 26 of February, 1996. It appears from the deposition of P.W. 13, the Investigating Officer that in his examination-in-chief, he stated that in the afternoon of 24-2-1996, he had received information that two persons had been killed by the miscreants and some others had been injured in village Bando who had been taken to the Sadar Hospital, Dumka. On the basis of this information, he claims to have made station diary entry bearing Sanha No. 410 dated 24-2-1996 at 6.30 p.m. in the evening and thereafter, he went to the hospital where he recorded the fardbeyan of the informant. Counsel submitted that this statement made by the Investigating Officer in his examination-in-chief can lead to the only conclusion that the Investigating Officer reached the Sadar Hospital at Dumka after 6.30 p.m. and therefore, the fardbeyan could have been recorded only after 6.30 p.m. and not at 7.30 a.m. as stated in the fardbeyan itself and as is the prosecution case. While it is true that the Investigating Officer has so stated in his examination-in-chief, in the course of cross-examination in para-graph-21, he has clearly stated that he recorded the fardbeyan at 7.30 in the morning and after recording the fardbeyan, he left for the place of occurrence. There is an apparent contradiction in the statement of this witness. Covuisel for the State, however, submitted that the statement by the witness is under some confusion because the unimpeachable evidence of record would clearly establish that the fardbeyan was recorded at 7.30 am, on the 24th of February, 1996 and not later in the evening. We find considerable force in the submission of the Counsel for the State. We have pemsed the original fardbeyan and we find that the same has been recorded by the Investigating Officer, P.W. 13 at 7.30 a.m. on 24-2-1996, The fardbeyan contains his signature. It is also not disputed that on the basis of the fardbeyan a formal first information report was prepared by P.W. 12 and the formal F.I.R. would show that it was prepared at 10.30 a.m. while the fardbeyan was recorded at 7.30 a.m.. there is also documentary evidence on record to show that the injury slips of the injured witnesses were prepared by the Investigating Officer and the injured were sent to the medical officer concerned for getting the injured witnesses examined by the doctors. P.W. 13 at one place has stated that the injury report of Anita Devi was prepared by P.W. 12. he has later deposed in paragraph-20 of his deposition that he had prepared the requisition for obtaining injury reports of all the persons who had received injuries and had sent the same to the hospital for examination of the injured. It appeals from the injury report of Chhote Lai San, Ext-3. that he was examined at 2 p.m. by the Medical Officer. Similarly, the injury report of Anita Devi, Ext-5, would show that she was examined by the Medical Officer at 8.20 a.m. The injury report of Ram Prasad Sah. Ext-5/ 1 would show that he was examined at 8.10 a.m. on 24-2-1996 by the Medical Officer at the Sadar Hospital, Dumka. The requisitions were sent by the Investigating Officer, whereafter the injured witnesses were examined and the injury reports were prepared. Two of the injured were . Ext-5/ 1 would show that he was examined at 8.10 a.m. on 24-2-1996 by the Medical Officer at the Sadar Hospital, Dumka. The requisitions were sent by the Investigating Officer, whereafter the injured witnesses were examined and the injury reports were prepared. Two of the injured were . examined as early was on 8.10 and 8.20 a.m., while Chhotelal Sah was got medically examined at 2 p.m. This is explained by the fact that Chhote Lai Sah had accompanied the Investigating Officer to the place of occurrence and the place of occurrence was inspected by the Investigating Officer with the help of Chhotelal Sah, P.W. 4. That explains why he was sent for medical examination later. Moreover, the post-mortem examinations on the dead bodies of the deceased were conducted at 2 p.m. and 3 p.m. on 24-2-1996. This is not disputed by the Investigating Officer that he had sent the dead bodies to the hospital for post-mortem examination, and this he had done after he had come to the place of occurrence from the Sadar Hospital at Dumka which must have taken some time. Even the seizure list prepared in the case to which P.Ws. 5 and 11 are witnesses was prepared at 9.30 a.m. at the place of occurrence and its has been deposed to by P.W. 11. It, therefore, appears to us that the fardbeyan was recorded at the time it purports to have been recorded and the statement of the Investigating Officer in his examination-in-chief appears to have been made under some confusion, though the witness later corrected himself. In view of the unimpeachable documentary evidence on record, we have no hesitation in holding that the fardbeyan was recorded at 7.30 a.m. 21. It was then submitted that the special report relating to this occurrence was received by the C.J.M. on the 26th of February, 1996 when the same was recorded on 24th February, 1996 at 7.30 a.m. The learned Sessions Judge has noticed the fact that the fardbeyan was recorded at the Sadar Hospital, Dumka from where the same was sent to the police station, Jama at a distance of about 20 Kms. and from there, it was sent to the C.J.M. at Dumka. 25th February, 1996 being a Sunday, it was placed before the C.J.M on the following day i.e. on 26th February, 1996. and from there, it was sent to the C.J.M. at Dumka. 25th February, 1996 being a Sunday, it was placed before the C.J.M on the following day i.e. on 26th February, 1996. The practice of not placing the special report before the C.J.M on holidays at his residence has been strongly deprecated by this Court in several judgments and also by the Supreme Court in recent decision reported in 1994 Suppl (2) S.C.C. 372. Arjun Marik and Ors. V/s. The State of Bihar and Ors. We cannot but reiterate the legal position that in serious offences, the special report must be sent to the Magistrate concerned as soon as possible so that there is no chance of manipulation. Even if the Court of the C.J.M is not functioning on a particular day on account of holiday or for any other reason, the special report must be produced before him at this residence, if necessary. It appears that this is not taken very seriously by the Investigating Officers and even where there is considerable delay in the receipt of the special report by the Chief Judicial Magistrate, not even an effort is made by the prosecution to explain the delay. This practice must be deprecated and we do so in the strongest terms. We hope that in future, there would not no delay in sending of the special report to the Chief Judicial Magistrate and such special reports are promptly placed before the Magistrate even at his residence, if necessary, at any time of the day or night, unless prevented by compelling circumstances which must be explained at the trial. 22. In the instant case, we are satisfied that the fardbeyan was recorded at 7.30 a.m. The alleged delay is also not such as to create a serious doubt about the authenticity of the fardbeyan. The Supreme Court in several decisions has taken the view that the delay in the receipt of the special report by the Magistrate concerned becomes very significant in cases where other evidence on record creates a suspicion about the timely recording of the fardbeyan and there are circumstances which given rise to an apprehension that the fardbeyan may have been ante-timed or antedated. In the absence of such spacious circumstances, the mere delay in the receipt of the special report by the Magistrate concerned by itself may not merit outright rejection of the prosecution case. In the absence of such spacious circumstances, the mere delay in the receipt of the special report by the Magistrate concerned by itself may not merit outright rejection of the prosecution case. In 1994 Suppl (2) S.C.C., 372 as well, the suspicion arose on account of the fact that the fardbeyan itself was recorded three days after the occurrence and thereafter, dispatched to the Magistrate concerned and this was viewed in the light of the other findings recorded by the HonTale Court. Counsel for the State has rightly relied upon the decision reported in 1999 Volume I PLJR 427 Choti Yadav and Ors. V/s. The State of Bihar and Ors. where the earlier decisions of the Supreme Court have been considered and the principles rightly reiterated. We, therefore, find no reason to hold in the instant case that the fardbeyan was not recorded at the time and place, it purports to have been recorded and that the same was ante-timed to suit the convenience of the prosecution. 23. The case of the appellant is that no doubt an occurrence may have taken place on the night of 23rd February, 1996, but the appellant was not in any manner involved in the commission of that offence. The case of the defence is that a dacoity was committed in the house of Ram Prasad Sah, the informant, and in course of commission of that dacoity two members of his family were killed by the dacoits. The dacoits had concealed their identity and, therefore, could not be identified by anyone because admittedly the occurrence took place in the dead of night. The appellant, however, has been falsely implicated on account of enmity or suspicion. Counsel submitted that the crucial question is whether the appellant was really identified by any of the eye-witnesses. In the light of the submission urged on behalf of the appellant, we shall now proceed to consider the testimony of Rama Nand Sah (P.W. 1) and Saraswati Devi (P.W. 10). 24. Ramanand Sah (P.W. 1) was the son of the informant (since deceased). We may notice that though the informant in his fardbeyan has named the members of the family who were assaulted and who were present, he has not named this witness in his fardbeyan, either as being present or having been assaulted. 24. Ramanand Sah (P.W. 1) was the son of the informant (since deceased). We may notice that though the informant in his fardbeyan has named the members of the family who were assaulted and who were present, he has not named this witness in his fardbeyan, either as being present or having been assaulted. The other fact which has to be born** in mind is the fact, admitted by this witness, that in the case of murder of Hara Nath Mandal, apart from Jiyalal Sah (deceased) this witness as well as the informant had also deposed against Basudeo Mandal. This fact is significant since the prosecution case is that the appellant had committed the murder of Jiyalal Sah because he had deposed against him in a criminal case as a result of which he had been convicted of the offence of murder. In the fardbeyan, the informant stated that Jiyalal Sah had deposed against Basudeo Mandal, but had omitted to state that he as well as his other son Ramanand Sah had also deposed against Basudeo Mandal. 25. In his examination-in-chief Ramanand Sah (P.W. 1) stated that it was at about HO Clock on the fateful night that the accused-persons entered his house where he was sleeping. He has categorically stated that Jiyalal Sah and hid wife, both deceased were sleeping in one room, while his brother Chhote Lai Sah and Anita Devi (P.W. 8) were sleeping in another room. His mother (P.W. 10) was sleeping in the corridor while he was sleeping with his father (informant) in one room. When the miscreants entered the house he woke up and raised an alarm. The miscreants assaulted his father with lathi, bamboo, sticks, etc. and they also assaulted him. They caught hold of his brother Jiyalal Sah and brought him near his father. All the miscreants had covered their faces with muffler, so that only their eyes were visible. He then stated that he and his father recognised one amongst them, namely, appellant Basudeo Mandal. The witness has not stated as to how he was able to identify Basudeo Mandal when he had concealed his identity by covering his face. He has not claimed that he identified Basudeo Mandal by voice. He then stated that he and his father recognised one amongst them, namely, appellant Basudeo Mandal. The witness has not stated as to how he was able to identify Basudeo Mandal when he had concealed his identity by covering his face. He has not claimed that he identified Basudeo Mandal by voice. Be that as it may, his evidence is to the effect that those persons who entered his house assaulted them and asked them to hand over all the currency notes and ornaments that they had, and in fac,t they took away all the ornament and money. They spared his father taking him to be dead. He then states that the appellant Basudeo Mandal took his brother Jiyalal Sah in the Courtyard, and they took him towards the house of Jai Prakash which was located on the other side of the road. Not finding Jai Prakash in his room, they ransacked his house and again brought him back to his house. They gave him two or four blows with Danda and thereafter, all of them came out and went towards the road. This witness claimed that at this stage, he ran away from the house after opening the window and went to the house of Pahar is and asked for drinking water. He also stated all the facts to them. After the miscreants had fled the villagers assembled. He found that the throat of his brother Jiyalal had been cut. He, however, could not trace out the body of Jiyalals wife, though he made a search for it. She was traced out after a long time and it was found that her neck was also cut from behind. From a perusal of his examination-in-chief, one gets the impression that this witness witnessed the occurrence from the very beginning, that is, from the time the miscreants entered his house. He witnessed that part of the occurrence in which the miscreants caught hold of his brother, but thereafter, according to this witness, he was taken to the house of Jai Prakash, and when he (P.W. 1) returned he found that his brothers neck had been cut, and his brothers wife was traceless who could not be searched out despite efforts made by him. 26. In cross-examination, this witness has stated that he woke up after Jiyalal and his wife were murdered. 26. In cross-examination, this witness has stated that he woke up after Jiyalal and his wife were murdered. When he woke up, he saw the miscreants standing before him and they started assaulting him and his father. They assaulted them simultaneously but the witness was not seriously assaulted. His father was, however, assaulted severely, so that he became unconscious and he became unconscious while he was on the cot. He then stated that he was taken to the house of Jai Prakash by the miscreants who broke open the lock of the house of Jai Prakash and thereafter again brought him back to his house and forced him to enter into the room of Jiyalal Sah. Thereafter, he ran along with the younger son of Jiyalal and slept. When the accused-persons went away, he managed to run away from the house and returned only after about an hour and a half at bout 12 p.m. 12.30 p.m. in the night. He searched for his brothers wife in the morning and she was traced out by the villagers. He categorically stated that he could not trace her out. 27. This witness then stated that by the time he returned some villagers had assembled including P.W. 11. He told the villagers about the occurrence, but he did not tell them that he had identified any of the miscreants. At that time, his father was conscious, so was Chhote Lai Sah and his wife as also his mother. He has further stated that the inmates of the house did not tell anyone of the villagers about identifying the miscreants. In paragraph-No. 16 of his cross-examination, he has stated that before the Sub-Inspector of Police he had stated that the miscreants had covered their faces with muffler. He had not stated before the Sub-Inspector of Police that he had identified any of the miscreants. He further states that he had not stated before anyone the fact that he had identified the appellant before the date on which he was deposing. He then categorically stated that the was stating about the identification of the culprit only in Court. 28. Having regard to the fact, the several villagers had assembled at the house of the witness soon after the occurrence, his failure to disclose before them the identify of the accused whom this witness had identified becomes significant. He then categorically stated that the was stating about the identification of the culprit only in Court. 28. Having regard to the fact, the several villagers had assembled at the house of the witness soon after the occurrence, his failure to disclose before them the identify of the accused whom this witness had identified becomes significant. The witness has admitted in course of his deposition that he did not tell any of the villagers the fact that he had identified one of the miscreants. He went onto say that even the members of his family did not tell any of the villagers about identifying any of the miscreats. He further made it abundantly clear that he had stated before the police that the miscreants had covered their faces with muffler. He also admits that he did not tell the Sub-Inspector of Police that he had identified any of the miscreants, and thereafter clarifies the statement further by stating that he was for the first time stating before the Court the fact that he had identified the appellant on the fateful night. This by itself furnishes a strong ground to reject the testimony of this witness. Even apart from this aspect of the matter, we find the deposition of this witness to be rather contradictory, and unreliable. We have already noticed the fact that he has not been named in the fardbeyan of the informant. The informant has mentioned the name of each and every member of the family who was assaulted. This witness claimed that he was sleeping in the same room with his father. He further claimed that they were both assaulted simultaneously. It, therefore, appears a little surprising that though his father (informant) had mentioned the name of every other member of the family who was assaulted, even the presence of this witness is not mentioned in the fardbeyan. This witness states that he had run away after the occurrence which leads us to think that in all likelihood, this witness had run away at the earliest opportunity and returned to his house after the occurrence was over. In his examination-in-chief, this witness has stated that he had woken up when the miscreants had entered his house, and he has described the manner in which the miscreants assaulted him and his father and how Jiyalal was brought by them near his father. In his examination-in-chief, this witness has stated that he had woken up when the miscreants had entered his house, and he has described the manner in which the miscreants assaulted him and his father and how Jiyalal was brought by them near his father. In his cross-examination, however, this witness gives a different version altogether, because he states that by the time, he woke up and saw the assailants standing before him, his brother Jiyalal and his wife had already been murdered, which leads one to infer that this witness did not witness the earlier part of the occurrence. Not only this he has stated that his father was so severely assaulted that he became unconscious and remained 011 his cot in an unconscious state. In his fardbeyan, the informant has not stated that he had become unconscious nor has any other witness stated that his father Ram Pd, Sah had become unconscious. From the injury report of Ram Pd. Sah (Ext.5/1), it appears that he had received only three simple injuries caused by hard and blunt substance, two on the chin and one on the left side of the face near the eye. The injuries were not such as would have led the assailants to believe that the informant was dead. 29. There is yet another aspect of the matter. This witness has stated that after he returned, he searched for the wife of Jiyalal but she could not be traced. He also searched for her in the morning. Her body was ultimately traced out by the villagers, though the attempt of this witness to trace her out proved futile. The evidence of other witnesses examined by the prosecution is quite clear that when the wife of Jiyalal attempted to run out of the house she was chased and her neck was cut and her body lay in the Bari. All the witnesses knew where the dead body of the wife of Jiyalal was lying and really there was no need for anyone to search for the body. Most of the eye-witnesses claimed to have witnessed the assault on Jiyalals wife, namely, Kaushalya Devi. All the witnesses knew where the dead body of the wife of Jiyalal was lying and really there was no need for anyone to search for the body. Most of the eye-witnesses claimed to have witnessed the assault on Jiyalals wife, namely, Kaushalya Devi. It, is, therefore, not understandable as to why this witness had to search for the dead body of Kaushalya Devi and how he failed to trace out the body till the morning when every other member of the family had witnessed the assault and knew where the dead body was lying. This again gives an impression that this witness had not seen the occurrence and slipped away when the occurrence started. It was only after his return that he started searching for the members of the family. Reading his evidence as a whole we are of the view that this witness is not a reliable witness and does not appear to be truthful. Moreover, his conduct in not disclosing the names of the assailant whom he identified either to the members of his family or to the villagers who had assembled soon after the occurrence or to the linvestigating Officer in course of investigation, leads us to doubt his claim that he had identified the appellant as one of the miscreants. We, therefore, place no reliance on this witness. 30. We are then left with the testimony of Sarswati Devi (P.W.10). This witness has stated that the occurrence took place in the night between 12O clock and 3O clock. In fact, her case is that the miscreants who had entered her house, committed Marpit throughout the night. This is not consistent with the other evidence on record, but we do not attach much importance to the timing disclosed by her because being a rustic village woman and not wearing a watch she may not be in a position to give the exact time. According to this witness the dacoits entered into the house at 12O clock in the night and killed her son Jiyalal at 3O clock in the night. This witness has deposed that after entering her house 10 to 12 miscreants entered the room of Jiyalal. They assaulted the female members and thereafter the appellant caught hold of Jiyalal and took him to the Courtyard where he cut his neck. When the wife of Jiyalal attempted to flee, the appellant cut her neck also. This witness has deposed that after entering her house 10 to 12 miscreants entered the room of Jiyalal. They assaulted the female members and thereafter the appellant caught hold of Jiyalal and took him to the Courtyard where he cut his neck. When the wife of Jiyalal attempted to flee, the appellant cut her neck also. She then goes on to state that the appellant assaulted her also, apart from Chhote Lai Sah, the wife of Chhote Lai Sah, Ram Prasad Mandal (informant) and Ors. In cross-examination she has stated that the miscreants broke open the door at 12 O clock in the night, and they killed Jiyalal at 3O clock in the night. They had caused several injuries to her husband with sword. They had caused injuries on the right and left side of the face as also on the back and on several other parts of the body. Counsel for the appellant has drawn our attention to the original deposition of this witness in vernacular where she has stated that the assailants poked the sword successively in his body, and assaulted him on his face on both sides as also on the back and other parts of the body. We have noticed the injuries on the person of Ram Prasad Sah who had sustained only three simple injuries. There is no injury on his person which could be caused by piercing a sword into his body. Counsel for the appellant submitted that what she meant was that the miscreants had pierced the sword into his body, but it is possible to read the deposition to mean that the miscreants had only nudged the sword with a view to wake him up and no serious injury was caused while nudging the informant with sword. However, the witness goes on to state that her husband was besmeared with blood and even the quilt and Dhoti got soaked with blood. This again gives an impression that her husband was mercilessly assaulted to such an extent that he was started bleeding and his quilt and Dhoti get soaked with blood. The injury report of Ram Pd. S.th does not support the extent of assault on Ram Pd. Sah as stated by this witness. This witness then stated that she had also been beaten with the hilt of a sword and she had also been admitted in the hospital. The injury report of Ram Pd. S.th does not support the extent of assault on Ram Pd. Sah as stated by this witness. This witness then stated that she had also been beaten with the hilt of a sword and she had also been admitted in the hospital. She had been assaulted on her shoulder and on the back, but she was conscious. However, she was not in a position to get down and, therefore, she remained lying 011 the cot throughout the night attended by her daughter and son-in-law. There is no material on record to corroborate the statement of this witness that she had sustained any injury in course of occurrence or that she was admitted in the hospital. Neither the injury report nor the hospital record, if any, has been produced and there is nothing in the deposition of the Investigating Officer that this witness had been sent for treatment to the local hospital since she had sustained injuries. This witness claimed that she had seen the appellant assaulting her son. The assault continued throughout the night, and her son was killed at 3O clock in the night i.e. three hours after the miscreants had entered her house. This again is not consistent with the prosecution case as deposed to by other witnesses. 31. This witness has admitted the fact that the appellant is a co-villager and is known to all the villagers. The villagers had come to her house in the morning but they did not ask anything and went away after mere visit and, therefore, she could not say anything to the villagers. She has admitted that she had given the details of the occurrence to the police, but she did not tell the same before any other person. She did not say anything to the members of her family regarding the occurrence since they had themselves seen the occurrence. It is surprising that even this witness did not disclose the fact that she had identified the appellant when the villagers had assembled at her house some time after the occurrence. She goes to the extent of saying that she did not even talk about the occurrence to her family members, but she claims that she had given the details of the occurrence to the police. It is not clear as to what details she had disclosed to the police in course of investigation. She goes to the extent of saying that she did not even talk about the occurrence to her family members, but she claims that she had given the details of the occurrence to the police. It is not clear as to what details she had disclosed to the police in course of investigation. However, what is quite clear and categoric is the fact that she did not name the appellant as one of the miscrean to before the villagers who assembled at her house after the occurrence. She has denied the suggestion that unknown persons had entered into the house and that Basudeo Mandal had been falsely implicated. 32. Apart from the fact that this witness appears to have given an exaggerated version of the occurrence not in consistent with the testimony of other witnesses and also claims to have received injuries in the course of occurrence for which there is no supporting evidence, she was himself eloquent by her silence when the villagers had assembled at her house some time after the occurrence. Counsel for the appellant placed reliance upon a judgment of the Supreme Court in Ram Pukar Thakur and Ors. V/s. The State of Bihar -- , where the Court noticed a serious infirmity in the evidence of the sole eye-witness that though admittedly several people from the neighbourhood met him at his house after the murder of his brother he did not disclose the names of the assailants to anyone what soever. The other members of his family also did not mention the names of the assailants to anyone of those persons. The Court rejected the claim of the witness that he was so overcome by grief that he could not mention the names of the assailants to anyone. Rejecting the plea that the villagers did not make enquiries in regard to the names of the assailants, the Court observed that it was impossible to believe that none from the large crowd of villagers who had gone to his house after the murder of his brother had the ordinary courtesy or curiosity to enquire whether the assailants were known. Such is not the ordinary experience of human affairs. Such is not the ordinary experience of human affairs. Counsel, therefore, rightly emphasised the fact that neither P.W. 1 nor P.W. 10 disclosed to the persons who had assembled at the house after the occurrence the fact that they had identified one of the miscreants, namely, the appellant. P.W 1 admitted that he was for the first time naming the appellant in Court, where as P.W. 10 admitted that she had not mentioned his name to the villager who had assembled, or to her family members but gave details of the occurrence to the police. It has no been elicited from the linvestigating Officer as to whether she had named the appellant as one of the miscreants. 33. We have carefully read the evidence of P.W. 10 and we are not in a position to say that she is a witness on whom implicit reliance can be placed. Her evidence as to the identification of the appellant by her is not corroborated by any evidence of reliable nature, because admittedly she did not disclose this fact either to her family members or to the villagers who had assembled soon after the occurrence. We, therefore, consider it unsafe to rely upon her testimony to convict the appellant. 34. Before parting with the judgment, we may notice two other aspects of the matter. Counsel for the appellant submitted that this was not really a case of murder but a case of dacoity and he has supported his argument by by reference to evidence on record. He submitted that P.W. 1 Ramanand Sah has himself stated that after entering his house, the miscreants asked the family members to hand over all the currency, notes and ornaments, which is consistent with a case of dacoity. This was not a case of pre-planned murder, because if the motive suggested by the prosecution and the evidence adduced by it is taken into account, the appellant had a similar motive against P.W. 1 and the informant (since deceased) because they had also deposed against him in the same criminal case along with the deceased Jiyalal Sah. It was, therefore, surprising that they spared P.W. 1 completely and spared the informant with minor injuries. It was, therefore, surprising that they spared P.W. 1 completely and spared the informant with minor injuries. It is not, therefore, understandable why they completely spared Ramanand Sah (P.W. 1) and the informant when they bore the same grudge against them, as they had also deposed in the criminal case against the appellant in which he was convicted. He strenuously urged that had it been a case o revengeful action, P.W. 1 Ramanand Sah and the informant should not have been spared when the assailants did not spare Jiyalal Sah as also his wife. He, therefore, submitted that in all likelihood, in course of commission of dacoity, Jiyalal Sah might have resisted the dacoits with the result that he was severely assaulted and killed and when his wife came to save him she was treated in the same manner. 35. The other aspect of the matter which Counsel for the appellant highlighted is that there is no material to show that there was any source of light on the fateful night which could enable the witnesses to identify the appellant. There is nothing on record either way as to whether there was any source of light or whether the night was a dark night or moonlit night. All that has come on record is they statement of the linvestigating Officer that no source of light was shown to him, meaning thereby that he was not shown any lantern or any other means by which light was available facilitating identification of the appellant. Since we have found the evidence of P.Ws 1 and 10 to be unreliable and we are not persuaded to Act on their testimony, it is not necessary to dwell on this aspect of the matter further. 36. In the result, the appeal preferred by the appellant is allowed and he is acquitted of the charges levelled against him. The Death Reference is declined. The appellant shall be set at liberty forthwith unless required to be kept in custody in connection with any other case.