JUDGMENT 1. - By the impugned judgment passed by the learned Additional Sessions Judge No. 2, Jodhpur, dated 4.9.2000 in Sessions Case No. 18/99, the appellant has been convicted for the offence under Section 302 I.P.C. and sentenced to imprisonment for life alongwith a fine of Rs. 1000/-, in default of payment of fine, four months' simple imprisonment. 2. Brief facts of the case are that on 9.6.99, at about 11.15 p.m., one Govind Lal, Foot Constable No. 748 produced a written report at Police Station Udaimandir, which was furnished to him by Mohd. Anees at M.G. Hospital Jodhpur, alleging inter alia that at about 9-9.15 p.m. when the informant had gone to call his brother Mohd. Mazid (deceased) towards the shopping centre, he found the appellant Igbal resident to Khan Chauk having scuffle with Mohd. Mazid, while Aziz and Sharafraj were attempting to disentangle them, at that time he wielded a knife blow on Mohd. Mazid, as a result of which, the victim fell down. Thereupon, the victim was sent to Mahatma Gandhi Hospital on the motorcycle of Aziz, and the informant followed. In the hospital, the victim succumbed to the injuries. On this report, F.I.R. No. 253/99 was registered, the post mortem examination of the deceased was got conducted, evidence of the witnesses were recorded, and after completing other necessary investigation, a charge-sheet was submitted in the Court of Additional Munsif and Judicial Magistrate No. 4, Jodhpur, for the offence under Section 302 I.P.C. The learned Magistrate committed the case to the Sessions Court, wherefrom it was transferred to the learned trial Court. 3. The learned trial Court framed the charge under Section 302 I.P.C. The accused denied the charge, and claimed to be tried. During trial, the prosecution examined 20 witnesses. In the statements under Section 313 Cr.PC., the accused simply adopted the stand of denial and examined DW/1, Sharafraj @ Babu. The learned trial Court after completing the trial, relying upon the post mortem report, found that the deceased had died homicidal death, relying upon the evidence of the eye-witness PW/7, Mohd. Anees (the informant), recovery of blood stained. knife, and the Forensic Science Laboratory report Ex.P/29, convicted the appellant as above. 4. Assailing the impugned judgment, it is contended that the learned trial Court was in error in even relying upon the evidence of PW/7. Anees (the informant), recovery of blood stained. knife, and the Forensic Science Laboratory report Ex.P/29, convicted the appellant as above. 4. Assailing the impugned judgment, it is contended that the learned trial Court was in error in even relying upon the evidence of PW/7. It Is contended that as a matter of fact, the witness was not at all present on the scene of occurrence, and in any case, could not see the appellant inflicting injury, as claimed by the witness. Various inherent infirmities in his evidence have been highlighted. The next contention raised is that, the entire investigation in the case is tainted one, inasmuch as, the first report has been made ante timed, the recovery of the blood stained knife has been manipulated to be one the information of and at the instance of the accused, while it is clear from the evidence of other prosecution witnesses that much before time, the information is alleged to have been given by the appellant, the weapon of offence has already been recovered by the Investigating Agency and thus, there was no occasion for the appellant to give any information, and to get it recovered over again. It is also contended that, apart from the fact that out of the two other important star witnesses, being Aziz, PW/17 having not supported the prosecution story and having been declared hostile, Sharafraj had not been examined. by the prosecution, and has been examined by the defence as DW/1, who has clearly denied PW/7 to be there on the scene, PW/2, the father of the deceased, instead of corroborating, rather clearly contradicts the version deposed by PW/7, likewise, the story as put forth by PW/7 is not corroborated by even the post mortem report. Inter alia, on this basis, it is contended that the whole conviction is bad. 5. The learned Public Prosecutor on the other hand, supported the impugned judgment, and contended that the witness PW/7 is a witness of sterling worth, the infirmities pointed out by the learned counsel for the appellant are wholly insignificant and do not at all effect the material part of the prosecution story, and prayed for dismissal of the appeal. 6. We have considered the rival submissions and have examined the record closely. 7. From the perusal of the post mortem report, it is clear that the deceased died homicidal death. 6. We have considered the rival submissions and have examined the record closely. 7. From the perusal of the post mortem report, it is clear that the deceased died homicidal death. This aspect had not been challenged by the learned counsel for the appellant also. Thus, the only question is as to whether the appellant is responsible for causing the injuries, in other words, whether it is established from the evidence on record that the appellant had caused the injuries as alleged by the prosecution 8. The F.I.R. in this case being Ex. P/19 shows that it is a written report signed by Mohd. Anees addressed to the SHO Udaimandir, and purports to be delivered to the Constable Govindlall, at 10.30 p.m. on 9.6.99 at M.G.H., Jodhpur, and the person receiving the report further interrogated the informant, who revealed that at the time of incident, various persons of the locality were there, who also had seen the incident. This report was delivered by the Constable at Police Station at 11.15 p.m. According to this report. on the victim receiving injuries, Aziz rushed to MD, and brought his motorcycle, whereon Aziz and MD carried the victim to hospital, and the Informant alongwith Sharafraj followed them. 9. As against this, according to PW/7 the informant, while in the witness-box, after the victim received injuries the accused ran away, and he alongwith Aziz went to call MD at Krishna Transport Company, thus, in the Court, instead of Aziz going to fetch MD, the witness claims to also have accompanied Aziz to MD. Likewise, while in the witness-box, the witness has deposed motive, being that the deceased was working with Mazid Tell, which was not liked by the appellant. Then, in the cross-examination, he has deposed that the Circle Inspector had called him and his father in the Police Station Udaimandir, whereupon they had gone there at 1.30 in the night, and his signatures were obtained on Ex.P/19 at three places. Then, he has also stated that the deceased did not have dinner and, therefore, his mother has sent the witness to call him, meaning thereby that the deceased was empty stomach. Then, he has also stated that the deceased did not have dinner and, therefore, his mother has sent the witness to call him, meaning thereby that the deceased was empty stomach. Then, he has deposed that he had gone on the spot through the way proceeding from towards the house of Rashida Begurn, counsel or, and at that time, some 15-20 persons had collected on the spot, it was when he was one or two steps ahead of the house of Rashida Begum, that the knife injury was inflicted, and was seen by the witness. He has then admitted that in between the houses of Rashida Begum and Rahamat Apa, various persons were standing on the road. The distance between the two houses has been given to be 400 paces. He has denied the existence of any lights below the houses of Rahamat Apa, Gulam Ahmad and Abdul Gani. He has maintained that Abdul Aziz and Sharafraj were trying to disentangle the accused and the victim. He, has also admitted that he did not take his brother (victim) to hospital, as he doesn't know to drive the motorcycle. Then he has stated that, he alongwith Sharafraj had gone to his father to inform about the incident. He has denied to have asked Aziz and Sharafraj as to why the dispute arose. Then he has also stated that he, his father and Babu, all the three had gone to the hospital. At this place, we may also consider the statements of PW/2., Fakir Mohd., the father of PW/7. This PW/2 has deposed that lqbal did not like the the deceased to work with Babu Kabadi, and that the appellant used to demand money for Alcohol, as lqbal and all his brothers are "Dada" type. He has also deposed that Babu Kabadi has some 3-4 sisters and lqbal used to be interested in them, after consuming alcohol he hurls abuses also. Then he deposed that on the fateful day, Sharafraj informed him about lqbal having stabbed Majid, who has been taken to hospital and he also should reach there, whereupon he went on th spot, then to hospital and learnt about the death. Then in the cross-examination, he has deposed that from hospital he was asked to go to Police Chauki, where he had gone all alone. Then in the cross-examination, he has deposed that from hospital he was asked to go to Police Chauki, where he had gone all alone. At Police Chauki, he was asked to go to Police Station, where S.P. and C.I. are waiting for him. Then he has significantly admitted that the report was scribed upto 2.30-3.00 in the night, and at that time the accused was also there, and at that place only signatures of Anees and Aziz were obtained. He has also admitted that he did not go to hospital with Sharafraj. At this very place, we may refer to the evidence of PW/1, who has deposed at the end of the cross-examination that it is correct that the knife was recovered after 1-2 hours of the arrest of the accused, and that the knife was carried away by the police people to stadium Chawki where his signatures were obtained. 10. Thus, the above resume of the material on record does show, the F.I.R. Ex. P/19 was not lodged in the manner, and at the time, it purports to be, rather as appears from the statement of PW/2, the father of the victim, that it was about 2-2.30 in the night that, the witness was sent at Police Station from Police Chauki, and there the report scribed and got signed from the informant, so also Aziz. And that, at that time, the accused was already there. This, of course, is not clear as to at what time, the accused was apprehended/brought there at the Police Station, and on what basis, as by the time, the accused was apprehended there was no report. This shows that, the sequence of events are not, as are intended to be propounded/projected. This, of course, is not clear as to at what time, the accused was apprehended/brought there at the Police Station, and on what basis, as by the time, the accused was apprehended there was no report. This shows that, the sequence of events are not, as are intended to be propounded/projected. In this sequence, if we consider the evidence of PW/7, it suffers from various infirmities, inasmuch as according to him, the deceased had not taken any food, and he had gone to call him at the behest of his mother, to take dinner, as against this in the post mortem report, Ex.P/19, semi-digested food was found in the stomach, then even according to him, at the time when he reached little ahead of the house of Rashida Begum, he saw there at a distance of about 400 paces, that appellant and victim were grappling, Aziz and Sharafraj were busy in disentangling them, but then at the same time, he also admits that on the spot some 15-20 persons had collected, the time of incident is about 9.15 p.m., and he admits that there was no light at the house of Rahamat Apa. He also admits that in between the house of Rahamat Apa. He also admits that in between the house of Rahamat Apa and Rashida Begum, various persons were available. In that view of the matter, in our view it cannot be believed that from such a distance, if the assailant and victim are grappling with each other, two persons are engaged in disentangling, them and obviously, some 15-20 persons are collected around the two fighting persons, it cannot be believed that the witness could identify from a distance of 400 paces the appellant to be causing stab injuries to the victim, in the manner as alleged. Likewise, the subsequent conduct of the witness, mainly, in not accompanying the victim to the hospital as a pillion rider, and sending him with Aziz and MD, despite the victim being the real brother of the witness, also indicates that the witness was not there at the scene, otherwise the natural conduct would have been, that on the motorcycle of the MD he would have carried the victim instead of Aziz, and Aziz and Sharafraj may have followed. Then even according to this witness, it was at 1.30 in the night, that he and his father were called by the C.I., whereupon they went, and at that time his signatures were obtained on Ex.P/19 at three places. From perusal of F.I.R. Ex.P/19, it appears that it bears the signatures of Mohd. Anees, in all at three places only, being A to B. This is a million dollar circumstance to indicate that the victim was not there on the scene and obviously after the victim had died, the witness and his father were called in the Police Station, and there the report was entertained, and in an attempt to show him as an eye-witness, the report was purportedly obtained from Govindlal, the Constable, to whom it was purported to be handed over at hospital. In this sequence, even the small contradiction, as to whether Aziz had gone to MD, or this witness and Aziz both had gone to MD, also becomes material. The testimony of MD is not available to us in this regard, as he has turned hostile, and Aziz also has turned hostile. Similarly, according to PW/2 it was Sharafraj who informed him about the incident, as against which PW/7 deposes that C.I. had called him and his father at the Police Station. As against this, P.W. 7 also deposes that he and Sharafraj both had gone to his father to inform about the incident. In this sequence, if we consider the aspect of recovery of knife, which is, as observed above, according to PW/1 the knife had been recovered after 1-2 hours of the accused being apprehended, and according to PW/2 when they went to the Police Station in the night, the accused was available there. Thus, it has to be concluded that the knife was recovered at that time itself. As against this, according to Ex.P/24, the information is said to have been given on 10.6.99. Though, at 4.30 p.m., and according to Ex.P/8, the knife is said to have been recovered at 5.00 p.m. of 10.6.99. This also shows that the investigation was somehow to create the evidence to substantiate its suspicion about involvement of the appellant, obviously in the process this possibility cannot be ruled out, that in order to substantiate the suspicion PW/7 was made to figure as eye-witness. 11. This also shows that the investigation was somehow to create the evidence to substantiate its suspicion about involvement of the appellant, obviously in the process this possibility cannot be ruled out, that in order to substantiate the suspicion PW/7 was made to figure as eye-witness. 11. Thus, in our view, it cannot be safely believed that PW/7 had at all seen the incident as claimed by him. Likewise, the recovery of the knife pursuant to Ex.P/24 and vide Annexure Ex.P/8, is also of no help to the prosecution, on the face of the testimony of PW/1. That being the position there remains no other sufficient evidence to establish the responsibility of the appellant in causing the injuries to the deceased. 12. The net outcome of the aforesaid discussion is that We are unable to sustain the conviction of the appellant as recorded by the learned trial court. 13. The appeal is accordingly allowed. The impugned judgment is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case.Appeal Allowed - Conviction Set Aside. *******