JUDGMENT : P.K. Patra, J. - The Appellant (hereinafter referred to as the accused') has challenged the judgment dated 5-9-1994 passed by Shri R.K. Dash, Sessions Judge, Cuttack (as his Lordship then was) in Sessions Trial No. 426 of 1993 in which he was convicted u/s 304, Part II of the Indian Penal Code (for short 'Indian Penal Code') and was sentenced to undergo rigorous imprisonment for a period of three years. 2. Prosecution case, briefly stated, runs as follows: On 29-9-1991 at about 8 p.m. the deceased, a resident of Talatelenga Bazar under Purighat police station of Cuttack Town was going to take his bath in river Kathjori. It is alleged that the accused obstructed him on road and abused him in filthy language near Nrusinghanath Math and threatening to finish him, mercilessly assaulted him on his chest, head, stomach and back, as a result of which froth came out of his mouth. The deceased was immediately taken to the S.C.B. Medical College-Hospital, Cuttack for treatment where he was admitted. It is alleged that the accused was searching for the deceased in the morning of 29-9-1991 (the date of the occurrence). On 1-10-1991 the informant (P.W. 1) lodged the written report about the occurrence before the I.I.C. of Purighat police station who registered the case under Sections 341 /325/506, Indian Penal Code and directed one Sub-Inspector (P.W. 6) to take up investigation. During investigation, P.W. 6 examined witnesses, visited the spot and went to the hospital where the deceased was under treatment, but could not examine him since the deceased was in coma stage. P.W. 6 arrested the accused on 4-10-1991 and forwarded him to Court in custody. On 18-1 0-1 991 the deceased succumbed to the injuries in the hospital and here the case was converted to one u/s 302 I.P.C. On receipt of information regarding death of the deceased at the hospital, one A.S.I. of Mangalabag police station held inquest over the dead-body of the deceased and sent the dead-body for post-mortem. On his transfer from Purighat Police Station, P.W. 6 handed over charge of investigation to his successor, who completed the investigation and submitted charge-sheet u/s 302 Indian Penal Code against the accused who stood his trial, but he was found guilty u/s 304, Part II, Indian Penal Code and was convicted thereunder. The defence plea is one of denial and false implication. 3. Mr. The defence plea is one of denial and false implication. 3. Mr. Panda, learned Counsel for the accused, and the learned Addl. Govt. Advocate for the State were hard at length. While Mr. Panda contended that the impugned judgment of conviction is unsustainable in the eye of law and is liable to be set aside due to improper and incorrect appreciation of evidence on record, learned Addl. Govt. Advocate supported the impugned judgment. 4. In order to bring home the charge, prosecution has examined six witnesses in all, of whom P.W. 1 is the informant, P.W. 2 is the medical officer who conducted autopsy over the dead-body of the deceased, P. Ws. 3 and 4 are two eye-witnesses to the occurrence, P.W. 5 is the younger brother of the deceased who has not supported the prosecution case stating that he was absent from the house on the date of the occurrence and P.W. 6 is the investigating officer. The defence has examined four witnesses in support of its case. D.W. 1 is the Professor of Neuro-Surgery, S.C.B. Medical College-Hospital, Cuttack. D.W. 2 is a Tax Collector of Cut tack Municipality who produced the Tax Collection Registers of Ward No. 17 for the years 1990-91 and 1991-92. D.W. 3 is a colleague of the accused in the Government Press and a childhood friend of the deceased who has denied his knowledge regarding the occurrence and D.W. 4 is the brother-in-law of the deceased who has also denied his knowledge regarding the occurrence. 5. The learned Sessions Judge placed reliance on the statements of the prosecution witnesses and disbelieved the defence plea and held the accused guilty u/s 304, Part II, Indian Penal Code. 6. The medical officer (P.W. 2) who held autopsy over the dead body of the deceased on 19-1 0-1 991 at about 12.40 p.m. found the following external Md internal injuries: External injuries (1) Healed scar reddish-white colour 2 cm x 0.25 cm on the right side of the face, 3.5 cm in front or right ear. (2) Healed abraided area reddish-white in colour 2 cm x 1.5 cm with scab of black colour at the centre present over the right joint. (3) Partially healed lacerated wound with black colour present at the centre of the size 5.5 cm x 6 cm on right side of the chest, 1.5 cm below the right nipple. (2) Healed abraided area reddish-white in colour 2 cm x 1.5 cm with scab of black colour at the centre present over the right joint. (3) Partially healed lacerated wound with black colour present at the centre of the size 5.5 cm x 6 cm on right side of the chest, 1.5 cm below the right nipple. (4) Partially healed abrasion with black colour scab at the centre of the right side of the waist- epithelization from the surrounding area present at the middle of the illiac crest right side of the size 1.5 cm x 1 cm. (5) Partially healed lacerated wound with black scab at the centre and epithelial tissue at the surrounding area present in front aspect of left knee joint of the size 6 cm x 2.5 cm. (6) Defused reddish black area 5 cm x 4 cm present at the left side of upper abdomen of size 5 cm x 4 cm, 5 cm away from umbelicus. Internal injuries (1) Contusion of the salp tissue 4 cm x 4 cm present on the right side of frontal region, on dissession of which black -colour clotted blood could be detected. (2) Oedema with contused area of size 3 cm x 2 cm present over the tip of right frontal lobe, "covered by thin layer of black?brown colour subdural haematoma over which thin whitish membrane was formed. (on dissession of brain tissue-right frontal lobe). (3) Contusion with subdural haematoma 3 cm x 2 cm present on the tip of left frontal lobe. The colour of the haematoma was brownish black with formation of serious whitish layer over the affected side. (4) Lateral ventricle of brain in both the sides filled with haemorrhagic fluid. Cerebellum and medulla pact. (brain stem) found to be oedematous. (5) On dissection of the neck, thin linear blackish area between 3rd and 4th cervical vertebrae and 4th and 5th cervical vertebrae was noticed. On dissection of the area, black colour mass was found to be blood clot. It was present above and below the 4th cervical vertebrae indicating dislocation of that cervical vertebrae. (6) Organised brownish black colour clot 5 cm x 5 cm was detected under external injury No. 3, and (7) Organised brownish black colour clotted blood 6 cm x 6 cm was detected under external injury No. 6. It was present above and below the 4th cervical vertebrae indicating dislocation of that cervical vertebrae. (6) Organised brownish black colour clot 5 cm x 5 cm was detected under external injury No. 3, and (7) Organised brownish black colour clotted blood 6 cm x 6 cm was detected under external injury No. 6. According to P.W. 2, all the aforesaid injuries were ante-mortem in nature and the cause of death was due to coma as a result.of injuries to the brain and dislocation of cervical vertebrae. Ext. 2 is the post-mortem report. In his statement in cross-examination, P.W. 2 has stated that abrasions, contusions and lacerations can be caused by accidental fall, but added that in the present case the injuries to the brain, cervical vertebrae including spinal chord could not be caused by fall. He has also denied the suggestion that if a person under the influence of alcohol falls repeatedly on a stony surface, such as cement slab, violently, all the injuries as noticed by him in the present case could not be caused. 7. As against the above medical evidence on record in support of the prosecution case, defence has examined the Professor of Neuro?Surger of S.C.B Medical College Hospital, Cuttack as D.W. I. He has stated that the deceased was admitted into the Surgical Ward of the Hospital on 1-10-1991 at 4.15, p.m. and thereafter he was shifted to the Neuro-Surgery Department on the next day where he was treated till his death on 18-10-1991. Ext. A is the bed-head ticket relating to the deceased which reveals that one Sk. Salim had accompanied the deceased to the hospital. It is mentioned in Ext. A that the deceased fell down on a cement slab after being hit by someone and the assailant had not been named therein. Further it is mentioned in Ext. A that the deceased was under the influence of alcohol. S k. Salim who accompanied the deceased to the hospital at the time of his admission has not been examined in support of the prosecution case or by the defence. In view of the above medical evidence on record, it is to be considered whether prosecution has been able to establish beyond all reasonable doubts by leading cogent, convincing, consistent and unimpeachable evidence that the accused, and the accused alone, was the assailant of the deceased. 8. In view of the above medical evidence on record, it is to be considered whether prosecution has been able to establish beyond all reasonable doubts by leading cogent, convincing, consistent and unimpeachable evidence that the accused, and the accused alone, was the assailant of the deceased. 8. Besides the informant (P.W. 1), P. Ws 3 and 4 have been examined as eye-witnesses to the occurrence. The learned Sessions Judge has rightly discarded the statement of P.W. 4 from consideration since he had not been named in the FIR and he was examined by the investigating officer after a considerable delay, i.e. on 12-11-1991, though the occurrence took place on 29-9-1991 and no explanation has been offered for such delayed examination of P.W. 4, either by the investigating officer or by P.W. 4. Besides, P.W. 4 has stated that he was working as an advocate's clerk at Cuttack. But he did not go to the police station to report about the occurrence or for his examination by the investigating officer after registration of the case. Apparently, he is a got-up witness. No interference is called for in the finding of the learned Sessions Judge relating to veracity of the statement of P.W. 4. 9. The learned Sessions Judge placed reliance on the statements of the informant (P.W. 1) and P.W. 3 to find the culpability of the accused. Therefore, the statements of P. Ws. 1 and 3 require careful scrutiny before placing reliance on them in order to sustain the conviction of the accused. 10. The informant (P.W. 1) who is the son of the deceased has stated that hearing shrieks, he rushed to the place of occurrence near- the Nrusinghanath Temple which was at a distance of about twenty cubits from his house and found that the accused was assaulting the deceased by dealing fist blows and dashing his head on the road; that P.W. 3 was trying to separate the accused and that all of them separated his father from the accused and took the deceased to his house in senseless condition and when the deceased did 'not regain his senses, he was removed to the S.C.B. Medical College-Hospital for treatment. But P.W. 1 did not state about the presence of P.W. 4 at the spot at that time and he did not state before the investigating officer or mentioned in the FIR (Ext. But P.W. 1 did not state about the presence of P.W. 4 at the spot at that time and he did not state before the investigating officer or mentioned in the FIR (Ext. 1) that the accused dashed the head of his father on the road. The other eye-witness to the occurrence, i.e. P.W. 3, who has been believed to be a truthful witness and on whose statement reliance has been placed by the trial Court, has also not stated that the accused dashed the head of the deceased on he road though he has stated that the accused was dealing first blows and slaps on the deceased. Though Purighat police station is stated to be situated at a distance of 400 to 500 cubits from the house of P.W. 1, he did not lodge the FIR immediately after the occurrence, but preferred to remain silent for two days and lodged the FIR on 1-10-1991 at 6 p.m. after admission of the deceased in hospital for treatment. In his statement in cross-examination P.W. 1 has stated that he first orally reported the occurrence to the O.I.C. of the police station and about one or two hours thereafter he lodged the written report (Ext. I). The occurrence was also not reported at the police station immediately by P.W. 3 or any other person. Though P.W. I has stated that he and all his uncles had accompanied the deceased to the hospital, the bed-head ticket (Ext. A) reveals that one Sk. Salim, s/o Sk. Kasim had accompanied the injured to the hospital at the time of admission. The deceased Niyamat Khan, son of Ashraf Khan, was admitted in hospital for head injury, as per Ext. A. The name of P.W. 1 or any of his uncles has not been mentioned in Ext. A. The learned defence Counsel contended that prosecution subsequently introduced the story that the accused dashed the head of the deceased on the road with a view to show that ocular testimony was consistent with the medical evidence on record, after knowing the contents of the post-mortem report and as such the said allegation against the accused cannot be believed to be trwe. 11. In support of his contention, Mr. 11. In support of his contention, Mr. Panda placed reliance on he decision in the case of Kamalakanta Patra v. State reported in 1984 CLR 307 wherein reference was made to the case of Ram Kumar Pandey Vs. State of Madhya Pradesh, and it was held: The First Information Report is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts affecting the probabilities of the case are relevant u/s 11 of the Evidence Act in judging the variety of the prosecution case. 12. The contention of the learned Counsel for the accused has considerable force in view of omission of the fact of accused dashing the head of the deceased on the road, in the FIR (Ext. 1) as also in the statement of P.W. 1 before the investigating officer. In the FIR (Ext. 1) the informant has stated that the accused was searching for the deceased at about 10.00 a.m. on the date of occurrence without mentioning the reason for such search and P.W. 1 has stated in his cross-examination that he did not know if the accused and the deceased were inimically disposed towards each other. In the FIR it has also been mentioned that three persons, namely, Ramakanta Sahu (P.W. 3) as also one Ramjan Bux and Sk. Lal Babu witnessed the occurrence and they separated the deceased from the accused, but said Ramjan Bux and Sk. Lal Babu have not been examined in support of the prosecution case. No other resident of the nearby houses has also been examined in support of the prosecution case. Non-examination of material witnesses adversely affects the prosecution case. In support of the contention, learned Counsel for the accused has placed reliance on the decision in Bir Singh and Ors. v. State of Uttar Pradesh reported in 1977 Cri L.R. (SC) 385. 13. That apart, it is there in the evidence that there is a club near the Nrusinghanath Temple, but none of the members of the club appeared at the spot. The statement of P.W. I that the club had been closed cannot be believed to be true since it was only 8 p.m. when the occurrence took place. Had the accused assaulted the deceased as alleged in the FIR and witnessed by P. Ws. 1, 3, Ramjan Bux and Sk. The statement of P.W. I that the club had been closed cannot be believed to be true since it was only 8 p.m. when the occurrence took place. Had the accused assaulted the deceased as alleged in the FIR and witnessed by P. Ws. 1, 3, Ramjan Bux and Sk. Lal Babu, any of them could have immediately rushed.to the police station to report the occurrence naming the accused as the assailant and also the accused could have been named as the assailant while the deceased was admitted in the hospital, instead of mentioning 'someone' as the assailant as noted in the bed-head ticket (Ext. A). 14. For all the reasons stated above and keeping in view the principles enunciated in the decisions referred to above, it will be quite unsafe to place reliance on the statement of P.W. 1 who is the son of the deceased and can be said to be an interested witness for the prosecution. Learned Sessions Judge has not been able to properly appreciate the evidence on record and has erred in placing reliance on the statement of P.W. 1. 15. P.W. 3 has claimed himself to be an eye-witness to the occurrence and has stated that his house is situated near the Nrusinghanath Temple and hearing the cries 'Marigali, Marigali', he rushed to the spot and found the accused assaulting the deceased dealing fist blows and slaps, He has further stated that he tried to intervene and separate the deceased from the accused, but he could not succeed due to his physical weakness. He has gone to the extent of stating that he received two fist blows in the process and P.W. 4 joined him on the spot whereafter both of them could separate the deceased from the accused. Since the presence of P.W. 4 on the spot at the time of the occurrence is doubtful and his statement has been discarded from consideration, this statement of P.W. 3 regarding presence of P.W. 4 on the spot is incredible. According to P.W. 3, the son of the deceased (P.W. 1) and two others who have not been named came running to the spot and all of them carried the deceased to his house in senseless condition. According to P.W. 3, the son of the deceased (P.W. 1) and two others who have not been named came running to the spot and all of them carried the deceased to his house in senseless condition. In his statement in cross-examination P.W. 3 has stated that by the time P.W. 4 arrived at the spot, five to seven persons whom he could not name had already reached there and that at the intervention of P.W. 4, the accused did not further assault the deceased. P.W. 3 has not stated before the investigating officer (P.W. 6) regarding presence of P.W. 4 at the time of occurrence. It was suggested to P.W. 3 that since P.W. 1 was working in the tailoring centre opened by him at Dangadi, he was deposing falsely at the instance of P.W. 1 but he has denied the suggestion. It is elicited from the mouth of P.W. 3 that he did not go to the police station to inform about the occurrence and that he was examined by the investigating officer four to five days after the occurrence. Had P.W. 3 received two fist blows dealt by the accused while he intervened, he would not have hesitated to rush to the police station to inform about the occurrence. Thus, the statement of P.W. 3 is not consistent with the statement of P.W. 1 on all material particulars and a part of it relating to presence of P.W. 4 at the spot is apparently false. Hence it will be quite unsafe to place reliance on the statement of P.W. 3. The learned Sessions Judge has not appreciated the evidence on record correctly and has erred in placing reliance on the statement of P.W. 3. 16. In the case of State of Punjab v. Sucha Singh reported in 1973 Cri.L.R. (SC) 393, it was held that interference was not called for in the acquittal of the accused when there were infirmities in the prosecution case and the witnesses examined by the prosecution were interested and their evidence was such upon which implicit reliance could not be placed. In the case of Selveraj Vs. The State of Tamil Nadu it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it. In the case of Selveraj Vs. The State of Tamil Nadu it was held that when the evidence led on behalf of the prosecution was wholly unsatisfactory and it. could not be regarded as sufficient to find the conviction of the Appellant for the murder of the deceased, the Appellant was entitled to an acquittal. In the case of Ram Ashrit Ram v. State of Bihar reported in 1983 Cri (1) 131, it was held that when the prosecution witnesses are either inter-related or otherwise interested in the prosecution, before their testimony could be safely acted upon, it had to pass the test of close and severe scrutiny and that it is extremely hazardous to convict the accused persons on the basis of the testimony of the highly interested, inimical and partisan witnesses, particularly when it bristles with improbable version and material infirmities. 17. Regarding delay in lodging the FIR, the learned Counsel for the accused contended that for failure of the prosecution to furnish plausible explanation, prosecution case is to be viewed with suspicion since the possibility of concoction cannot be ruled out. In the present case, it was suggested to P.W. 1 that at the instance of one Murad Khan (Surad Khan), son of the sister of the deceased, who was inimically disposed towards the accused having constructed a house on the land of the accused, this false case has been foisted against the accused, but P.W. 1 has denied this suggestion. In his statement u/s 313, Code of Criminal Procedure the accused has stated that he has been falsely implicated in this case at the instance of Surad Khan with whom he had land dispute. D.W. 4 who is the brother-in-law of the deceased has stated about the land dispute between the accused and said Surad Khan persisting for the last twenty years. D.W. 4 has also stated that his house is situated near the Nrusinghanath Temple and had such occurrence as alleged by the prosecution taken place, he could have known the same. In the absence of prior hostility with the deceased, there is no reason why the accused would have abused and mercilessly assaulted the deceased on the public road while he was going to the river to take bath. In the absence of prior hostility with the deceased, there is no reason why the accused would have abused and mercilessly assaulted the deceased on the public road while he was going to the river to take bath. In the facts and circumstances of the case, possibility of roping in the accused on suspicion as the author of the crime at the instance of said Surad Khan cannot be completely ruled out. Chances of the deceased while in drunken state dashing against an unknown person or quarrelling with him on the road while going to river and that unknown person pushing aside the deceased resulting in his fall on a stony surface or cement slab appear to be more probable. It is also probable that since the identity of that person was not known, the.occurrence was not reported at the police station immediately and also the name of the assailant of the injured was not disclosed before the medical officer who admitted the injured in the hospital as per Ext. A. After deliberations for two days, the accused might have been roped in as the author of the crime at the instance of said Surad Khan who was inimically disposed of towards accused. Thus, it appears that prosecution has not come up with clean hands and has suppressed a part of the occurrence. 18. Learned Counsel for the accused in support of his contention has placed reliance on the decision in Peerless General Finance and Investment Co. Limited and Another Vs. Reserve Bank of India, in which it was held that when the testimony of the eye-witness to the occurrence was clouded with strong suspicion and the first information report was lodged by a delay of fifteen hours, the false implication of the Appellants in that case could not be completely ruled out and the Appellants were entitled to an acquittal. In the facts and circumstances of the present case, the above decision is fully applicable. 19. The investigating officer (P.W. 6) has stated that during investigation he visited the spot near the Nrusinghanath Temple, but has not mentioned about the blooil-stains on the spot and has seized nothing from the spot. Had the accused dashed the head of the deceased on the road and had there been bleeding injuries, the spot would have been stained with blood which could not have escaped the notice of the investigating officer. Had the accused dashed the head of the deceased on the road and had there been bleeding injuries, the spot would have been stained with blood which could not have escaped the notice of the investigating officer. As suggested by the defence, the deceased who was under the influence of alcohol might have fallen on any stoney surface or on any cement slab resulting in bleeding injury on his head as in that case blood-stains could have been noticed on that stony surface or cement slab. But the investigation officer has not stated to have seen blood-stains either on the road or any stony surface or cement slab and has seized no blood-stained material. The fact that the deceased was immediately removed to his house and was treated by application of some ointment would lead to the conclusion that there was no profuse bleeding from the injuries on his head. Had there been profuse bleeding, the wearing apparels of the deceased would have been stained with blood and he would have been immediately removed to any hospital or Nursing Home and he is head would have been bandaged, instead of his removal to the house and treatment by way of application of some ointment. No blood-stained cloth has been seized in this case. Thus, investigation is found to be perfunctory and prosecution is guilty of suppression of material facts in the case. 20. On an analysis of the evidence on record and keeping in view the principles enunciated in the decisions referred to above, it will be quite unsafe to place reliance on the statements of P. Ws. 1 and 3 who are found to be unreliable and whose statements are bristling with infirmities and improbabilities. The inevitable conclusion will be that prosecution has not been able to establish beyond all reasonable doubts by leading cogent, convincing, credible, consistent and unimpeachable evidence that the accused, and the accused alone. was the author of the crime in this case. To reiterate, the learned Sessions Judge has failed to appreciate the evidence on record in its correct perspective and has erroneously come to the conclusion that the prosecution has been able to establish the guilt of the accused beyond all reasonable doubts. was the author of the crime in this case. To reiterate, the learned Sessions Judge has failed to appreciate the evidence on record in its correct perspective and has erroneously come to the conclusion that the prosecution has been able to establish the guilt of the accused beyond all reasonable doubts. Therefore, the conviction of the accused cannot be sustained and he will be entitled to an acquittal and the impugned judgment being unsustainable in law is bound to be set aside. 21. In the result, the Criminal Appeal is allowed.. The impugned judgment dated 5.9.1994 passed by the learned Sessions Judge, Cuttack in Sessions Trial No. 426 of 1993 convicting the accused u/s 304, Part-II, Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of three years, is set aside. The accused is found not guilty and is acquitted of the charge. Since he is on bail, his bail-bond be discharged. Final Result : Allowed