Judgment M.L.Visa and Bal Krishna Jha JJ. 1. This appeal is directed against the judgment and order dated 20-7-1987 passed by 5th Additional Sessions Judge. Rohtas in Session Trial No. 376 of 1985 convicting and sentencing the appellant Kamla Kahar to undergo life imprisonment under Sec. 302 of the Indian Penal Code (in short IPC) and convicting and sentencing remaining appellants namely, Baban Kahar, Murat Kahar and Mala Kahar to undergo rigorous imprisonment for three years under Secs. 325/34 IPC. 2. The case of prosecution. in short. is that on 14-4-1985 at about 4 p.m. appellant Kamla Kahar took his two bullocks in the Khalihan of informant Ram Janam Ahir (PW-3) situate towards west of village where informant had kept bundles of wheat crop and bullocks started eating wheat from those bundles. The informant raised protest and an altercation took place between him and appellant Kamla Kahar and by that time deceased Nagina Ahir cousin of informant also came there. In the meantime remaining three appellants, namely, Murat Kahar, Baban Kahar and Mala Kabar came there armed with lathis and started assaulting the informant and his cousin Nagina Ahir. Appellant Kamla Kahar assaulted deceased Nagina Ahir with lathi on his head shoulder etc. and informant was assaulted by remaining appellants with lathis on his right hand and left hand and one finger of his right hand was broken and blood started oozing from the little finger of his left hand. Nagina Ahir received bleeding. 3. In order to prove its case, the prosecution has examined 5 witnesses. Ram Janam Ahir (PW-3) is the informant. Ram Pyare Yadav (PW-1) is son of informant and is not eye-witness and he on hearing hulla had reached the place of occurrence after occurrence took plaace and he was told about the occurrence by the informant. Dasi Kuer (PW-2) is the mother of deceased and has claimed herself to be eyewitness of the occurrence. Raju Yadav (PW-4) has been declared hostile by the prosecution because he has not supported the case of prosecution and has said that he saw appellant Mala alias Bigru assaulting the deceased with lathi and besides this, he did not see any other assault to any body el.se. Dr. Gyanendra Kumar Singh (PW -5) is a doctor who had examined the informant as well as deceased when deceased was injured and had referred him to Varanasi for further treatment. 4. Dr. Gyanendra Kumar Singh (PW -5) is a doctor who had examined the informant as well as deceased when deceased was injured and had referred him to Varanasi for further treatment. 4. Ram Pyare Yadav (PW-1), son of informant. in his evidence has stated that at the time of occurrence he was at his darwaja and on hearing hulla he went to the khalihan of Somaru Bind where he found the deceased Nagina Ahir lying injured having injuries on his head and he was unconscious and his father informant, had fallen down on the ground with injuries and his father told that appellant Kamla Kahar had assaulted the deceased with lathi and he himself waa assaulted by appellants Baban Kahar, Murat Kahar and Mala Kahar with lathis and his father further told him that mother of deceased was also assaulted by the aforesaid three appellants. He has further stated that deceased was taken to a doctor of Durgawati but because his condition was serious, therefore, the doctor advised for taking the deceased to Banaras and thereafter deceased was taken to Banaras where he died in the night and at Banaras Hospital police came and prepared inquest report on which he put his signature (Ext. 1) and one witness Jitendra Singh also put his signature (Ext. 1/ 1). In para 6 of his cross examination he admitted that he did not see the assault on deceased. Admittedly he is not eye-witness to the occurrence and he reached the place of occurrence after assault. Dasi Kuer (PW-2), mother of deceased has said that at the time of occurrence she was grazing her she-buffalo at a place of 20 steps away from the place of occurrence and she saw that bullocks of appellant Kamla Ahir came in the Khalihan of informant and started eating the bundles of wheat crop which were kept in the kalihan and on protest by informant an altercation took place between him and appellant Kamla Kahar and in the meantime deceased also came there and tried to pacify the matter and thereafter remaining three appellants armed with lathis also came there and appellant Kamla Kahar assaulted the deceased by lathi on his head and deceased fell down and became unconscious. She has further stated that deceased was again assaulted by appellant Kamla Kahar and she then ran and shadowed her son on which appellants assaulted her with lathi and she also became unconscious. About informant she has simply said that he also received injuries but she has stated that she did not get her injuries treated because she was anxious about the deceased and she remained unconscious for two days and she regained her consciousness in her house but again contradicting this statement she has stated that at the place of occurrence except her son and appellants nobody else was there and 193 nobody came there till she regained from unconsciousness and besides this in para 16 she has admitted that nobody had questioned her about the occurrence and before evidence in court she was not examined by police. The court below after observing that the case diary contains her statement and she is a charge sheeted witness has come to a conclusion that she was examined by I.O. in this case. In absence of evidence of I.O. that he record the statement of this witness and in view of own admission of this witness that she was not examined by I.O. we fail to understand how the court below merely by perusing the case diary and seeing the names of this witness in the charge-sheet came to a conclusion that she was examined by I.O. Apart from this fact, her evidence that she remained unconscious for two days in her house and again contradicting it by saying that at the place of occurrence nobody came there till she regained from unconsciousness makes her evidence quite unreliable. 5. Now remains the evidence of informant who in his evidence has not only claimed to be eye-witness to the occurrence but is said to have received injuries at the hands of appellants. He in his evidence has stated that at the time of occurrence he was in his khalihan where he had kept bundles of wheat crop when appellant Kamla Kahar brought two bullocks which started grazing the wheat crop and when he raised protest the remaining appellants armed with lathis came there and appellant Kamla Kahar was already armed with lathi. He in his evidence has stated that at the time of occurrence he was in his khalihan where he had kept bundles of wheat crop when appellant Kamla Kahar brought two bullocks which started grazing the wheat crop and when he raised protest the remaining appellants armed with lathis came there and appellant Kamla Kahar was already armed with lathi. In the meantime the deceased Nagina came there and tried to pacify the matter and thereafter appellant Kamla Kahar gave lathi blow on the head of deceased Nagina Ahir as a result of which he fell down and became unconscious and thereafter PW-2 came there and covered the body of deceased. About himself he has said that he was assaulted by appellants Murat, Baban and Mala and received injuries on his back and fingers of both hands. He has further stated that after occurrence he and deceased both were taken to State Dispensary. Durgawati where his statements was recorded by police and the doctor of State Dispensary, Durgawati referred the deceased to Banaras hospital and deceased was taken to Banaras where he died. In his evidence he has not stated that mother of deceased was also assaulted by any of the appellants. In para 8 of his examination he has stated that his khalihan was in the field of one Somaru Bind. In para 17 of his cross examination contradicting his earlier statement that at the time of occurrence he was in his khalihan he has said that immediately prior to occurrence he was in the khalihan of Deu Mallah along with 4-5 other persons. 6. In this case the prosecution has not examined the doctor who is said to have conducted the postmortem examination on the dead body of deceased Ram Nagina. Dr. Gyanendra Kumar Singh (PW-5) who on 14-4-1985 had examined the deceased when he was injured had found one lacerated wound on left parietal region of deceased. He has further stated that on the same day he examined the informant and found one lacerated wound on left little finger and one contusion with defused swelling in the right hand extending from dorsal aspect to the nail bed of middle index finger. In his cross examination he has clearly stated that there was no injury on the right parietal region of deceased. In his cross examination he has clearly stated that there was no injury on the right parietal region of deceased. Learned counsel appearing on behalf of the appellants has submitted that in post mortem examination report the doctor who conducted the post mortem examination has mentioned that he found fracture injury on the right side of parietal bone and he did not mention any injury on left parietal region of deceased. He has further stated that the evidence of PW-5 shows that he had not seen the deceased at all and because the prosecution has not examined the doctor who conducted post mortem examination on the body of deceased. Therefore, vital contradiction in the evidence of PW-5 that he did not find any injury on the right parietal region of deceased which according to the doctor who conducted post mortem examination, was the cause of death could not be brought on record. Notwithstanding, this contradiction we find that admittedly the deceased was referred to Banaras Hospital by PW-5 where he was taken and where he died. Prosecution has not brought on record the cause of death of deceased and in absence of cause of death of deceased it is very difficult to hold that deceased died of injury said to have been inflicted on him by lathi by appellant Kamla Kahar on head. The court below simply after observing that after receiving injury the deceased was taken to Banaras Hospital where he died and where panchnama of the body of deceased was prepared came to a conclusion that deceased died of injury inflicted on him by appellant Kamla Kahar. In absence of any evidence on record about the cause of death of deceased we are unable to agree with this conclusion of the Court below which is based only on surmises and conjectures and not on any cogent reason and in this view of the matter we find that charge under Sec. 302 IPC against appellant Kamla Kahar does not stand proved beyond all reasonable doubts. 7. 7. About the assault by appellants on deceased and informant we find that there is only evidence of informant supported by PW-5 who is said to have examined the deceased and informant but then as stated earlier the evidence of PW-5 that there was no injury on the right parietal region of deceased and submission on behalf of appellants that in post mortem examination report there is mention of only one injury on right parietal region of deceased creates strong doubt that PW-5 had not seen the deceased. Besides this about the place of occurrence it has been argued on behalf of appellants that according to the informant, occurrence took place in his khalihan which is situate in the land of one Somaru Bind but then informant for the murder of his brother Loku Ahir had filed a criminal case against Somaru Bind and his three brothers which has been stated by Chandra Sheikh Bind (DW-1) and admitted by PW-1 and PW-2 and in this view of the matter there was no question on informants kalihan being on the land of Somaru Bind. Before the Court below the appellants examined Chandra Sheikh Bind. (DW-1) who in his evidence, has stated that Somaru Bind, Bisuni Bind and Chandrajeet Bind are his three brothers and he and his all brothers are joint in cultivation and mess. He has further stated that for the murder of Loku Ahir, the informant had filed a criminal case against him and his three brothers and the khalihan of informant was never in their land. The court below after accepting the fact of filing criminal case by informant has observed that because case filed against Somaru Bind and others ended in acquittal it shows that prosecution witnesses could not support the case of prosecution and it resulted in giving benefit of doubt to Somaru Bind and others. The Court below further observed that it is not necessary that informant will support his case. By citing example of PW-4 Raju Yadav of this case who has not supported the case of prosecution. Court below perhaps wanted to convey that informant also in the case which he filed against Somaru Bind and his brothers might not have supported the case of prosecution. It has observed that because the case ended in acquittal, therefore, there was no enmity between informant and Somaru Bind. Court below perhaps wanted to convey that informant also in the case which he filed against Somaru Bind and his brothers might not have supported the case of prosecution. It has observed that because the case ended in acquittal, therefore, there was no enmity between informant and Somaru Bind. It rejected the submission of appellants that informant could not have his Khalihan on the land of Somaru Bind. We fail to understand that how the Court below drew inference that informant might not have supported the case which he had filed against Somaru Bind and others. In view of evidence of DW-1 that at no time informant had his Khalihan in the land belonging to him and his brothers including Somaru - Bind by introducing a new story without any basis cannot hold that at the time of occurrence informant had his khalihan on the land of Somaru Bind where occurrence is said to have taken place. Besides this prosecution has not examined I.O. who could have stated about the place of occurrence. 8. The entire case of prosecution is based mainly on the evidence of informant. The prosecution has not got the first information report formally proved. We are aware of the fact that FIR cannot be treated as substantive piece of evidence and suppression of FIR by prosecution alone cannot be a ground for disbelieving the entire case of prosecution but then FIR is a very important document and its absence certainly casts cloud of suspicion over the case of prosecution and deprives the accused of his right to cross examine the informant on its basis particularly when informant is said to be main and only witness of the occurrence. Besides this the court under Sec. 14 (g) of Indian Evidence Act may presume that FIR was unfavourable to prosecution which withheld it. 9. Considering the entire materials on record, we find that except the evidence of informant there is no other evidence to support the case of prosecution although informant in FIR as well as in his evidence has stated that other witnesses were also present. Besides this, FIR has not been formally proved by prosecution, I.O. has not been examined and the doctor who had conducted post mortem examination on the body of the deceased has also not been examined. Besides this, FIR has not been formally proved by prosecution, I.O. has not been examined and the doctor who had conducted post mortem examination on the body of the deceased has also not been examined. In this view of the matter we find that evidence of informant does not inspire confidence and appears to be unreliable and conviction and sentence of appellants cannot be upheld. 10. In the result this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellants are set aside. Appellants are acquitted of the charges and are discharged from the liabilities of their bail bonds.