JUDGMENT This appeal arises Jut of the conviction and sentence passed by Sri Shree Prakash Rai, Vth Addl. judicial Commissioner, Ranchi, in S.T. No. 463 of 1993, whereby the learned Addl. Judicial Commissioner, Ranchi, convicted the appellant for an offence under section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. 2. The prosecution case, in short, as per the Fi.R. (Ext. 4) is that on 13.12.1991 at about 8 A.M., the niece of the informant Saheda Khatoon and his wife Jubeda Khatoon had gone to Darshila hills, where there were 12 Mahua trees, to pick up some fire wood then Sadique Ansari, Rafique Ansari and Ajij Ansari started abusing them then they came back and informed the informant. On receiving this information the informant and his cousin brother. Jamir Ansari, at about 10 A.M. went to that field and told Sadique Ansari, Rafique Ansari and Ajij Ansari that why they abused wife and niece of the informant. They also told that they had cut down the four Mahua trees which were in their possession. On this Rafique Ansari took a bag which was kept there and from which he took life bomb and threw two bombs on Jamiruddin Ansari. Jamruddin Ansari fell down and died. Thereafter, Rafique Ansari in order to assault the informant threw a bomb on him which hit Ajij Ansari and Ajij Ansari also fell down there and died and some bomb splinters hit the back of the informant. Sadique Ansari also hurled a bomb on him but he somehow escaped. On hearing the sound of explosion of bomb and on the hulla of the informant Ahmad Ansari (P.W.5), Hamid Ansari (not examined) and some people from neighbour came there. Then the accused Sadique Ansari and Rafique Ansari fled away. Thereafter, the female inmates of the house of the informant came there and dragged the deceased Jamruddin Ansari for some distance, but as they could not drag him too long, so they kept him at that place then the informant came alongwith Chaukidar (not examined) to the police station. The claim of the informant was that the accused persons in furtherance of their common intention had tried to cause the death of the informant by hurling bomb on him and thus injured him. The claim of the informant was that the accused persons in furtherance of their common intention had tried to cause the death of the informant by hurling bomb on him and thus injured him. The cause of occurrence is that there are 12 Mahua trees at the village Darsilla on the hills and these are on the Gairmazarua land and the informant for the last many years is in possession of those Mahua trees and also using the Mahua trees and their products, but the accused persons had cut down four Mahua trees out of them and were gathering those four trees on the alleged date of occurrence to their residents. This F.I.R. was recorded on 13.12.1991 at 2.30. PM. The distance of the police station from the village of occurrence is only 12 km. 3. All the appellants were charged for the offences under sections 302/34 and 307 of the Indian Penal Code and 3 of the Explosive Substance Act. But on trial they were acquitted of the charges under sections 307 of the Indian Penal Code and 3 of the Explosive Substance Act and was convicted under section 302 of the Indian Penal Code. 4. The defence version of the accused-appellant, as appearing from the trend of the cross-examination, is that actually on the alleged date of occurrence it was the informant parties who had forcibly tried to take possession of those trees and they had assaulted Ajij Ansari by Barchha etc. causing his death. The further defence of the appellant is that he is innocent person. 5. During the course of the argument of this appeal, it was submitted by the learned counsel for the defence that, in fact, there is a counter case bearing Bero P.S. Case No. 158 of 1991, dated 13.12.1991 and it was the informant parties, who had come there at the place of occurrence carrying bombs and the bomb had exploded and that was the reason of causing death of the deceased and the appellant is innocent. It appears that when the appeal was taken up for hearing earlier, the records of the counter case being Bero P.S. Case No. 158 of 1991, corresponding to G.R. Case No. 4001 of 1991, was called for and on perusal of records of counter case that has been received, it appears that, that case is still at the infancy stage of its investigation and even the commitment had not been made. It is also found that the F.I.R. of that counter case has been exhibited in this case as Ext. A, how that was admitted into evidence is absolutely not clear. It appears that when the defence filed a written argument in this case in the trial Court, they also filed a certified copy of the F.I.R. of the counter case and the learned trial Court admitted that into evidence and marked it as Ext. A. This was a serious error on the part of the learned trial Court because the F.I.R. has to be proved first then admitted into evidence. 6. In support of the prosecution case in all 10 P.Ws. were examined by the prosecution in the trial Court. The I.O. was not examined. . 7. Besides that the seizure lists are Exts. 1 and 1/2, the postmortem report is Ext. 2, the injury report of the informant is Ext. 3, the inquest report prepared by the police was marked as Ext. 7 and some burnt thread one Lungi Charkhana, one Rexin bag, one leather bag, 2 life bombs were also seized from the place of occurrence i.e. near the stoni portion of the Darshila pahad. He also seized and prepared Exts. 5 and 5/1 and further from the said place some blood stained earth, piece d' Charkhana Lungi, a pair of Hawai Chappal, blood stained, a pair of cream colour plastic shoe were also seized and exhibited vide Ext. 5 from the said place at a distance of 20 metres from the place of seizure of Ext. 5/1 in presence of the witnesses, whose signatures were marked as Exts. 1, 1/1, 1/2 and 1/3. 8. According to the F.I.R. the only eye' witnesses are the informant (P.W. 1); Ahmad Ansari (P.W. 5), Hamid Ansari (not examined), and Situ Ansari (not examined). The other family members of the informant, according to the F.I.R., had arrived at the place of occurrence after the assault was over. 1, 1/1, 1/2 and 1/3. 8. According to the F.I.R. the only eye' witnesses are the informant (P.W. 1); Ahmad Ansari (P.W. 5), Hamid Ansari (not examined), and Situ Ansari (not examined). The other family members of the informant, according to the F.I.R., had arrived at the place of occurrence after the assault was over. According to the F.I.R. also other female witnesses, i.e. P. Ws. 2, 3 and 4 are not eye witnesses of the occurrence and they had also not stated to be the eye witnesses of the occurrence. Of-course they are the witnesses regarding genesis of the occurrence because out of these three witnesses two, P.Ws. 2 and 4 have said that they had gone in the morning to pick up some fire wood at Darsila Pahad from the Mahua trees and they were abused by the accused persons which after coming back they had stated to the informant and other members of the family. In her examination in chief P.W. 2, who is the wife of the informant has stated that her husband has informed her vide paragraph-1, regarding occurrence. In her cross-examination she herself said that she has not seen any person hurling the bomb because at the time of explosion of bomb they were not present at the place of occurrence. Similar is the statement of P.W. 3, vide paragraph-5. P.W. 4 has been tendered. She has also stated that she had not seen any person throwing bomb. From this it is clear that so far actual occurrence is concerned, they are not the eye witnesses of the occurrence. 9. P.W. 5, he is a witness named in the F.I.R. as the eye witness of the alleged occurrence. He has stated in his evidence that he heard the sound of explosion of bomb, he went towards the hill from which side the sound had come and there he saw the informant (P.W. 1) leaning on the dead body of his brother. He also saw two persons running away towards North-West, whom he did not identify. Thus, from his evidence it is clear that no doubt he went at the place of occurrence, but neither he had seen the hurling of bomb nor he could identify the persons, who were fleeing away from the place of occurrence. Of course he saw the dead body. Thus, from his evidence it is clear that no doubt he went at the place of occurrence, but neither he had seen the hurling of bomb nor he could identify the persons, who were fleeing away from the place of occurrence. Of course he saw the dead body. He has proved his signature and the signatures of other witnesses on the seizure list. In cross-examination he has said that he has heard the sound of two explosion of bombs. He saw two persons running away towards Bhaisadone village, whom he could not identify at that time. He had talked with the informant for 2 or 3 minutes. He has seen the dead body of Ajij at a distance of 5060 yards from the dead body of Jamruddin Ansari and he found the right hand of Ajij completely blown. He did not ask the informant as to how Ajij had died (vide para-4). Thus, from his evidence it is clear that he is neither the eye witness of the occurrence nor he did identify any person who allegedly caused death. According to him both the parties of this case are not same village (vide para-5). Then if two persons were running away and had they been the appellant-assailants then at that hour of time i.e. 10 A.M. he could have definitely identified them but he could not say anything regarding identification, it means that either he was not present or he could not see the persons running away from the place of occurrence. 10. Now we are left with only one witness i.e. the informant who claims to be eye witness of the occurrence. The case and counter case is almost admitted fact. The fact actually not brought on the record but when the record was called for, we take judicial notes of the fact that there is a counter case. Now question is as to whether this witness is a reliable witness or not. In order to snow his presence at the place of occurrence, this witness has stated in his fardbeyan earlier that when the bomb was thrown upon him which actually hit Ajij, who died but he also sustained injury on his back. In his examination in chief he says that the bomb which was thrown upon him by Sadique Ansari hit his right hand scapular and on the right leg vide para-2 of his examination in chief. In his examination in chief he says that the bomb which was thrown upon him by Sadique Ansari hit his right hand scapular and on the right leg vide para-2 of his examination in chief. The other ladies of the family who are interested witnesses, P.W. 2 in paragraph 2 has stated that some injury was also caused to her husband i.e. P.W. 1, P.W 3 has also stated that her uncle has also sustained injury on his Pakhura. So, according to the informant's statement made in the F.I.R. he sustained injury on his back by some bomb, which was hurled on him but any how he escaped and it hit Ajij who died but some of which also hit him, but in the Court he says that he received injury on his right arm and P.W 2 also said that it was on the Pakhura. He was also examined by the Doctor, PW 9 (vide Ext. 3), who has found the following injuries on his person : 1. One abrasion 1" x 1/2" on right upper scapular region. 2. One abrasion 1" x 1/2" on right lower scapular region. 3. One lacerated wound 1" x 1/2" x 1/4" on middle of right scapular region. 4. One abrasion 1" x 1/4" left foot. According to the -Doctor (P.W 9) all "these injuries are simple in nature and inflicted by hard and blunt substance. Age of injuries within six hours, (vide para-2). In his cross-examination, the Doctor said that abrasions found are possible due to fall on rough surface. Thus, "according to the Doctor (P.W 9) injuries found on the person of the informant and on lower right scapular region, right upper scapular •region, in middle of right scapular region and left foot, which are possible due to fall on rough surface. In the opinion of the Doctor all the injuries were simple in nature inflicted by hard and blunt substance. In the opinion of the Doctor all the injuries were simple in nature inflicted by hard and blunt substance. A question was raised by the learned counsel for the defence that this finding of the Doctor (P.W. 9) belies the story of the prosecution that the informant sustained injury of a bomb explosion because if a bomb is hurled then in that circumstance it caused some burn injury and no burn injury was found by the Doctor, rather according to the Doctor all the injuries found on the person of the informant have been caused by hard and blunt substance. Thus, according to the defence these injuries were purposely manufactured in order to make a defence in the counter case. The defence also argued that actually this witness had gone to the place of occurrence being armed with Barchha and some occurrence had taken place, in which he might have received some injury, but not caused by a bomb. The defence also says that actually there was a land dispute with regard to those Mahua trees and the informant side had gone there being armed with bomb etc. and thus, the informant side, who were the aggressor, had carried bomb and the bomb expoded and by explosion of bomb Jamruddin and Ajij died, but they were not killed by the appellant. 10A. It is now relevant to discuss the evidence of Doctor, PW. 7 who has conducted the autopsy on the person of the deceased Jamiruddin Ansari and found the following injuries: 1. Lacerated wound (a) 28 x 10 c.m. on right forearm involving right hand also. Margins of the wound were black and burnt with deposition of fellowish powder of few places over the margin of wounds. There is fracture of right radius and right ulna bone with fracture of all right metacorpat bone. Soft tissues were missing. (b) 3 x 1 x soft tissue, 2 x 1 c. m. x soft tissue on the right arm. Metallic one (Piece) (Splinter) was recovered from the wound. 2. Black burn area: 1. 22 x 12 c.m. area involving right thigh more on medical side, right side of groin. Pubic region whole with seising of pubic hair, right side of scrotum, right side of root of penis. Metallic one (Piece) (Splinter) was recovered from the wound. 2. Black burn area: 1. 22 x 12 c.m. area involving right thigh more on medical side, right side of groin. Pubic region whole with seising of pubic hair, right side of scrotum, right side of root of penis. In this black area there were two lacerated wounds were present measuring 5 x 2 c.m. x soft tissue, 4 x 1 c.m. x soft tissue. 2.12 x 3 c.m. area black and burnt on the right side of front of chest. Burn areas were incomplete in places. In the opinion of the Doctor all the injuries were ante-mortem caused by explosion such as bomb. Death was due to bleeding and shock. Time since death 9 to 36 hours from the time of P.M. examination. Metallic piece 1 (splinter) was sent through constable under sealed cover. All the injuries were sufficient to cause death. The Doctor in his evidence said that the injuries found on the person of the deceased are possible if a person carrying bomb falls and as a result of which bomb explodes. 11. The learned counsel for the defence argued that the nature of the injuries found on the person of Jamiruddin clearly shows that all the injuries were found on the right side of the body which indicates that had there been an explosion caused by throwing a bomb from some distance by the appellant, then in that circumstance, the entire body of the deceased could have been involved but it is just a chance that when he fell down the bomb exploded and the side by which he fell down were the actually affected side of the body, otherwise there can be no other explanation for the injury appearing, on the right side of the body. The learned counsel for the defence has also argued that the place of occurrence is a hilly track where there are stones in the track. In that circumstance, if there being some scuffle and some body falls who is already carrying a bomb then in that circumstance that injury might have been received and the Doctor's opinion indicates towards such possibility which cannot be ignored in the circumstance that has come in the case. 12. In that circumstance, if there being some scuffle and some body falls who is already carrying a bomb then in that circumstance that injury might have been received and the Doctor's opinion indicates towards such possibility which cannot be ignored in the circumstance that has come in the case. 12. The learned counsel appearing on behalf of the respondent though opposes this argument with regard to the injury found on the person of the informant and on the person of the deceased Jamiruddin but he does not give any argument which could be plausible for such type of injury rather he also does not find any other reason. 13. The inquest report Ext. 7 says that on the body of the deceased there was a Lungi of Charkhana and the seizure list Ext. 5 says that piece of Charkhana Lungi was also seized near a rock of hill and from there also 3 live bombs were also seized. The dead body of Jamruddin Ansari was found at a distance of 450 yards away from the alleged place of seizure of the bomb which according to the P.Ws. was dragged by the ladies inmates of the family. Thus, it is clear that the explosion had taken place near a rock, which could be by hurling of a bomb and it could be by fall on the rock, thus from the piece of Lungi which was found near a rock, it appears that it would be a circumstance that the explosion took place at that place. It is also not clear what happened of the dead body of the other deseased, who took away him and by whom, the prosectution has not been able to establish this fact. 14. There is a Chaukidar namely, Benga Uraon alongwith whom the informant had gone to the police station and in his whose presence F.I.R. was recorded as he accompanied the informant to the police station, but this witness has not been examined as witness and no explanation has been given for non-examining him. This Chaukidar was even not examined, as it appears from perusal of the case diary, by the I.O. during the course of investigation. This Chaukidar was even not examined, as it appears from perusal of the case diary, by the I.O. during the course of investigation. Thus, we find that there is no independent eye witness of the occurrence and the informant's version with regard to the occurrence or with regard to the injury found on his own person is not corroborated by the medical evidence. Thus, the informant does not appear to be a reliable witness, and, we find that the learned trial court placed too much reliance on the evidence of this witness in convicting and sentencing the appellant. On the consideration of evidence of P.Ws. 2, 3 and 4 it appears that they are related witnesses but as they had come within 10 minutes of the occurrence were the best person to tell about the occurrence which had taken place before their arrival at the place of occurrence In our opinion, this is not a proper appreciation of evidence by the learned trial court. Considering all the aspect of the matter, we find that the prosecution has not been able to prove the charges levelled against the appellant beyond every reasonable doubt and the learned trial court erred in appreciating the evidence of P.Ws. 2, 3 and 4 and not properly considering the injuries found on the person of the informant himself. 15. In the result, we find that there is a merit in this appeal. Accordingly, we allow this appeal, set aside the conviction and sentence imposed against him by the learned trial Court and direct that tile appellant be released forthwith if he is not required in any other case. The lower Court record of the counter case which had been called for be returned back forthwith.