JUDGMENT - ZOTING D.S., J.:---These are the two appeals preferred by the original accused Nos. 1 to 4 against the judgment and order of conviction and sentence dated 18-9-1996, passed by the learned Additional Sessions Judge, Hingoli in Sessions Case No. 16 of 1996, whereby the appellants have been convicted and sentenced for offence punishable under sections 302 r/w 34 of Indian Penal Code to undergo life imprisonment and to pay a fine of Rs. 500/-, in default to suffer R.I. for 2 months. Criminal Appeal No. 560 of 1996 is preferred by original accused Nos. 2 to 4; whereas Criminal Appeal No. 564 of 1996 is preferred by original accused No. 1. Both the appeals arise out of common judgment, therefore, they are being disposed of by this common judgment. 2. The prosecution case, in brief, is as under: The murdered man was one Ashok Malharrao Bangar, aged about 35 years. He was resident of Hingoli town and he was the President of Shiv Sena Party of Hingoli town. The complainant Gopal (P.W. 2) and Prakash (P.W. 4) are the friends of deceased Ashok. They are residents of Nanded city. The incident occurred on 3-9-1995. On that day, deceased Ashok had gone to Nanded. At about 11.00 a.m., Ashok met with his friends at Nanded. They took their meals at about 4.00 p.m. in one hotel named and styled as, "Manju". After taking meals, Ashok insisted Gopal (P.W. 2) and Prakash (P.W. 4) to come to Hingoli with him. He asked them to arrange for a vehicle on hire. They had taken a Maruti car bearing No. MH-02/2435 on hire. Dayanand (P.W. 10) was the driver of the maruti car. They left Nanded city at about 9.15 p.m. for going to Hingoli town. On the way to Hingoli, there is a road bifurcation known as Waranga Phata. When they reached at Waranga Phata at about 10.30 p.m., deceased Ashok asked the driver of the car to take the car towards Loknatya (Tamasha Theatre) namely "Ganesh Loknatya Kendra" (hereinafter referred to as "Tamasha" theatre), therefore, Dayanand (P.W. 10) took the car to the theatre and stopped it in front of the said theatre. Ashok Bangar, Gopal (P.W. 2) and Prakash (P.W. 4) got down from the car and went inside the theatre to see the dance and musical performance. Ashok Bangar, Gopal (P.W. 2) and Prakash (P.W. 4) got down from the car and went inside the theatre to see the dance and musical performance. In the theatre, they watched the dance and musical performance for about 10 to 15 minutes and came out of the theatre. They went towards rooms meant for the dancers. Three dancers and one young boy accused No. 1 were found standing there. Ashok Bangar asked the three dancers as to why they were not on stage. One of them disclosed that their turn was over. Then Ashok patted one dancer's upper arm and asked the other dancers to go away, however, accused No. 1 who was standing there, was looking at Ashok with jealousy. Having noticed this, Ashok asked him as to why he saw standing there and directed him to go away. Accused No. 1 replied arrogantly saying that he was going away. Looking to the arrogance, Ashok got annoyed and he gave one slap to accused No. 1. Thereafter Ashok along with his friends Gopal (P.W. 2) and Prakash (P.W. 4) started going towards the car, at that time, accused No. 1 came towards these persons and scuffled with them. At that time also, accused No. 1 gave a slap to Ashok. Accused No. 1 threatened that he would see him and by saying so, he went inside the theatre. Ashok and his two friends started going towards the maruti car. At that time, accused No. 1, made a sensational appearance with a gupti in his hand. Accused Nos. 2 to 4 caught hold of Ashok and accused No. 1, who was armed with gupti pierced the gupti in the chest of Ashok thrice. Thereupon, Ashok and his two friends caught hold of accused and took him towards the car. Ashok went ahead from the car saying that he wanted to ease himself. At that time, accused Nos. 2 to 4 came towards the car and asked the complainant Gopal (P.W. 2) and Prakash (P.W. 4) to release accused No. 1 saying that they would take accused No. 1 to the Police Station. Gopal (P.W. 2) and Prakash (P.W. 4) asked the accused Nos. 2 to 4 as to who they were? At that time, accused Nos. 2 to 4 came towards the car and asked the complainant Gopal (P.W. 2) and Prakash (P.W. 4) to release accused No. 1 saying that they would take accused No. 1 to the Police Station. Gopal (P.W. 2) and Prakash (P.W. 4) asked the accused Nos. 2 to 4 as to who they were? Accused No. 2 disclosed his identity as Deepak, the Manager of the theatre and he had also disclosed the names of accused No. 1 as Subhash Kharwade, the servant of dancers and that of accused Nos. 3 and 4 as Vitthal and Manohar the gate keepers of theatre. Gopal (P.W. 2) and Prakash (P.W. 4) noticed that Ashok, who had gone to ease, had fallen on ground. At this juncture, they left accused No. 1 and rushed towards Ashok. On leaving accused No. 1, he (accused No. 1) along with other three accused persons fled away. 3. Thereafter Gopal (P.W. 2), Prakash (P.W. 4) and Dayanand (P.W. 10) lifted the injured Ashok and kept him in the car and took the car to the Primary Health Centre, Akhada Balapur for medical treatment. At that time, Ashok was unconscious. He was admitted in Primary Health Centre. Medical Officer, Primary Health Centre, Akhada Balapur Dr. Durge (P.W. 1) informed the Police Station on phone about the admission of the injured. On examination, he found three stab injuries on the chest of injured. He gave first aid to the injured Ashok. By that time, Head Constable Gangaram (P.W. 8) of Akhada Balapur Police Station reached at the Primary Health Centre. He brought the requisition addressed to the Medical Officer. After some time P.S.I. Alsatwar (P.W. 11) also rushed to the Primary Health Centre. Injured Ashok was in critical condition, hence, the Medical Officer referred the injured to Shri. Guru Govind Singh Hospital, Nanded (hereinafter referred to as, "Nanded Hospital"). One employee of the Primary Health Centre was deputed while taking injured Ashok to the Nanded Hospital. The injured was shifted to Nanded Hospital in the same maruti car. He was accompanied by his friends Gopal (P.W. 2) and Prakash (P.W. 4) and Head Constable Gangaram (P.W 8). 4. They reached at the Nanded Hospital at 1.00 a.m. on 4-9-1995. Dr. Godbole (P.W. 3) the Medical Officer at the Nanded Hospital examined Ashok and declared him as dead. He was accompanied by his friends Gopal (P.W. 2) and Prakash (P.W. 4) and Head Constable Gangaram (P.W 8). 4. They reached at the Nanded Hospital at 1.00 a.m. on 4-9-1995. Dr. Godbole (P.W. 3) the Medical Officer at the Nanded Hospital examined Ashok and declared him as dead. The Medical Officer on duty at Nanded Hospital informed in writing to Head Constable Mohd. Rafique (P.W. 9) of the Vajirabad Nanded Police Station, who was on duty at the out post at Nanded Hospital about the death of Ashok. Head Constable Mohd. Rafique (P.W. 9) immediately visited the Nanded Hospital where the dead body of deceased Ashok was kept. He collected Medico Legal report from the Medical Officer Dr. Godbole (P.W. 3). Then he made inquiry with Gopal (P.W. 2) about the incident. Gopal (P.W. 2) narrated the occurrence to the Head Constable Mohd. Rafique (P.W. 9). He reduced the report of the complainant into writing as per his version. The report is at Exhibit 41. Thereafter, he called two panchas and held inquest on the dead body of deceased and drew inquest panchanama Exh. 26. Thereafter, he sent the dead body of deceased Ashok for post-mortem examination by issuing requisition Exhibit 64 to the Medical Officer. Dr. Godbole (P.W. 3), who was attached to the said hospital as a Medical Officer, had conducted autopsy over the dead body of deceased Ashok. He had noticed three stab injuries on the person of the deceased Ashok. After conducting external as well as internal examination, he prepared postmortem report Exhibit 43 and preserved the viscera of the deceased. He collected the blood sample of deceased Ashok. 5. In the meanwhile, Head Constable Gangaram (P.W. 8) informed the Akhada Balapur Police Station about the death of deceased Ashok. On receipt of the said information, P.S.I. Alsatwar (P.W. 11) proceeded towards Nanded Hospital. On reaching the hospital. Head Constable Mohd. Rafique (P.W. 9) handed over first information report Exhibit 41, inquest panchanama Exhibit 26, along with the covering letter Exhibit 66 to P.S.I. Alsatwar (P.W. 11). He directed Gangaram (P.W. 8) to obtain panchanama of the clothes of deceased. P.S.I. Alsatwar came back to Akhada Balapur Police Station with the papers received by him from Head Constable Mohd. Rafique (P.W. 9). He directed Gangaram (P.W. 8) to obtain panchanama of the clothes of deceased. P.S.I. Alsatwar came back to Akhada Balapur Police Station with the papers received by him from Head Constable Mohd. Rafique (P.W. 9). He reached at the Police Station at about 10.10 a.m. and registered the offence at C.R. No. 113 of 1995 against all the accused persons under section 302 r/w 34 of the Indian Penal Code and took up the investigation. In the meanwhile, Head Constable Mohd. Rafique (P.W. 9) attached the clothes of deceased after the postmortem examination under seizure panchanama Exhibit 27 and handed over seizure panchanama Exhibit 27, viscera bottle and blood sample of Ashok to Head Constable Gangaram (P.W. 8). He came to Akhada Balapur Police Station and handed over the panchanama and the blood samples to the P.S.I. Alsatwar (P.W. 11). The accused were arrested. 6. As soon as the crime was registered by P.S.I. Alsatwar (P.W. 11), he visited the spot along with two panchas and drew panchanama of scene of offence Exhibit 51. He found one pair of chappals and one shirt on the spot. They were attached under seizure panchanama Exhibit 52. When the accused were in police custody on 4-9-1995, it is alleged that gupti article No. 7 was recovered in consequences of the information given by accused No. 4 Manohar, from the bush situated in the open space in front of the theatre. The memorandum panchanama and seizure panchanama of the gupti drawn in presence of panchas are at Exhibits 46 and 47 respectively. On 7-9-1995, accused No. 1 was interrogated and he made disclosure about the cover of the Gupti in presence of two panchas and in consequences of the information given by him, the said cover of gupti article No. 8 was recovered and attached in presence of panchas. Memorandum panchanama of the statement and the seizure panchanama are at Exhibits 48 and 49 respectively. 7. During investigation, the Investigating Officer P.S.I. Alsatwar (P.W. 11) recorded statements of witness. He sent the gupti, blood stained clothes of deceased, blood stained soil and viscera to the chemical analyser for chemical analysis. Police Constable Baburao (P.W. 7) is the carrier of these articles to chemical analyser, Aurangabad. Chemical analyser's reports were received. They are at Exhibits 78 to 82. He sent the gupti, blood stained clothes of deceased, blood stained soil and viscera to the chemical analyser for chemical analysis. Police Constable Baburao (P.W. 7) is the carrier of these articles to chemical analyser, Aurangabad. Chemical analyser's reports were received. They are at Exhibits 78 to 82. After completion of investigation, the accused were charge-sheeted for the offence under sections 302 r/w 34 of Indian Penal Code, under section 135 of Bombay Police Act and under section 25(1) of Arms Act. 8. Learned Judicial Magistrate, First Class, Kalamnuri committed the case to the Court of Sessions for trial according to law, as the offence under section 302 of Indian Penal Code is exclusively triable by the Court of Sessions. 9. Charge under sections 302 r/w 34 of Indian Penal Code, section 135 of Bombay Police Act r/w section 34 of Indian Penal Code and section 25(1) of Arms Act r/w section 34 of Indian Penal Code was framed by the learned Additional Sessions Judge, Parbhani at Exhibit 13. It was read over and explained to all the accused. They pleaded not guilty and claimed to be tried. Their defence is one of total denial. According to them, on 3-9-1995, in the night time, Ashok was assaulted by one unknown person, however, the police could not trace out the real assailants of deceased Ashok and, therefore, in order to avoid action against them (police), police involved them falsely by suppressing the real report of Gopal (P.W. 2). According to them, a false report was prepared against them subsequently. They have not adduced any evidence in their defence. 10. After hearing the arguments advanced by both the parties and on going through the evidence of prosecution witnesses consisting of occular evidence of the three eye-witnesses, namely Gopal (P.W. 2), Prakash (P.W. 4) and Dayanand (P.W. 10) and the circumstantial evidence in the form of disclosure made under section 27 of the Indian Evidence Act, the learned Judge found all the accused guilty of the offence punishable under sections 302 r/w 34 of Indian Penal Code. However, all the accused are acquitted of the offence charged under section 135 of Bombay Police Act r/w section 34 of Indian Penal Code and section 25(1) of Arms Act r/w section 34 of Indian Penal Code. However, all the accused are acquitted of the offence charged under section 135 of Bombay Police Act r/w section 34 of Indian Penal Code and section 25(1) of Arms Act r/w section 34 of Indian Penal Code. The learned Judge convicted and sentenced the accused for the offence under sections 302 r/w 34 of Indian Penal Code, in the manner stated in para 1 above. 11. Being aggrieved by the said judgment and order of conviction and sentence, passed against all the appellants for the offence punishable under sections 302 r/w 34 of Indian Penal Code, they have preferred these appeals before the Court challenging the order of conviction and sentence passed against them. 12. We have heard the arguments advanced by Shri V.N. Damle, learned Counsel appearing for the appellant Subhash original accused No. 1 in Criminal Appeal No. 564 of 1996 and Shri S.M. Godsay, learned Counsel appearing for the appellants original accused Nos. 2 to 4 in Criminal Appeal No. 560 of 1996 and Shri V.D. Sapkal, learned A.P.P. appearing on behalf of the respondent/State in both the appeals. 13. Shri, Sapkal, learned A.P.P. has fully supported the judgment of the trial Court. The learned Counsel for the appellants have contended that the learned Additional Sessions Judge was in error to have come to his findings holding the appellants guilty of the offence. They assailed the prosecution evidence on several grounds, including the grounds putforward by them that the first information report Exhibit 41 is fabricated document, which, according to them, is brought into existence subsequently to implicate the accused persons. They submitted that the genesis of the actual occurrence is suppressed by prosecution. They further contended that the incident did not take place at the spot referred to in the panchanama and in the manner stated by prosecution witnesses. They have assailed occular evidence of the prosecution witnesses by pointing out several infirmities in their evidence, which will be referred during the course of the discussion of the evidence. They submitted that the evidence of the prosecution witnesses as well as the Investigating Officer is not at all reliable and trustworthy and the same should be rejected. They have assailed occular evidence of the prosecution witnesses by pointing out several infirmities in their evidence, which will be referred during the course of the discussion of the evidence. They submitted that the evidence of the prosecution witnesses as well as the Investigating Officer is not at all reliable and trustworthy and the same should be rejected. It is submitted on behalf of appellants that the assault had not taken place in front of the theatre but at some other place and the real assailants could not be booked and since it was a case of murder of member of political party the accused being employees of the theatre have been implicated by the police by suppressing the real first information report and by showing false recovery of weapon. 14. It is well-settled that the prosecution has to prove its case beyond reasonable doubt irrespective of whether or not the accused have made out a plausible defence. In support of its case, prosecution examined as many as 11 witnesses as under: EYE WITNESS P.W. 2- Gopal P.W. 4- Prakash P.W. 10- Dayanand MEDICAL EVIDENCE P.W. 1- Medical Officer-Dr. Durge P.W. 3- Medical Officer, Nanded Hospital- Dr. Godbole PANCH WITNESSES P.W. 5- Sanjay P.W. 6- Manik POLICE OFFICERS P.W. 7- Police Constable-Baburao P.W. 8- Head Constable-Gangaram P.W. 9- Head Constable-Mohd. Rafique P.W. 11-P.S.I.- Alsatwar 15. In order to appreciate the relevant contentions of both the parties, we would first like to deal with the prosecution evidence as regards the actual occurrence together with other evidence and then to proceed to consider the culpability of the appellants, if any, in the matter. The fact that deceased Ashok Bangar died unnatural death on the intervening night of 3-9-1995 and 4-9-1995 on account of the injuries sustained by him, has not come to be disputed in any manner by or on behalf of the appellants. Ashok Bangar was admitted in critical condition in the Primary Health Centre, Akhada Balapur on 3-9-1995 at about 11.30 p.m. for his medical treatment. Dr. Durge, Medical Officer (P.W. 1) stated that, on examination, he found three stab injuries on the person of Ashok Bangar, as under: "i) Stab wound below left nipple measuring 2 cms. x 2 cms. x querry deep. ii) Stab wound near lower part of sternum two inches away from lower part of sternum over right side of chest measuring 2 cms. x 2 cms. x querry deep. ii) Stab wound near lower part of sternum two inches away from lower part of sternum over right side of chest measuring 2 cms. x 2 cms. x querry deep. iii) Stab wound over Epigastric region measuring 2 cms. x 2 cms. x querry deep." He opined that all these injuries were grievous in nature and as the condition of the injured was critical, he referred injured to Nanded Hospital by issuing letter Exhibit 32. It is not disputed that deceased Ashok was shifted to Nanded Hospital and when the Medical Officer examined him there, he declared injured Ashok Bangar as dead. There is out post of Vajirabad Police Station at the Nanded Hospital. Mohd. Rafique, Police Head Constable (P.W. 9) who was on duty at the said out post, on receipt of the information about death of deceased Ashok from the Medical Officer, obtained Medico Legal Certificate and prepared inquest panchanama of the dead body of deceased Ashok in presence of panchas, which is at Exhibit 26. He had also described the three stab injuries in the inquest panchanama. Dr. Godbole (P.W. 3), who was attached to Nanded Hospital as Medical Officer, conducted autopsy over the dead body of deceased on 4-9-1995 between 8.00 to 9.00 p.m. and he had also noticed three stab injuries on the person of deceased, which are described as under: "i) Stab wound over chest to the right side 3 cms. Medial to nipple 5th intercoastal place measuring ¾ cms. x ½ cms. reddish in appearance and having clean cut margins, elliptical, vertical. ii) Stab wound over chest right side 1.5 cm. from mid line and it was situated in Epigastric region measuring ¾ cms. x ½ cms. elliptical reddish in appearance having clean cut margins and vertical in position. iii) Stab wound over chest to the left side 1.5 cm. below nipple in the 5th intercoastal space obliquely placed, of size ½ cm. elliptical having margin clean cut and reddish in appearance." The fourth injury is a minor abrasion. According to him, all these injuries were antemortem. He described all these injuries in Column No. 17 of postmortem report at Exhibit 43. On internal examination, he found corresponding injuries to the heart and two lungs. In his opinion, probable cause of death of Ashok Bangar was stab injuries involving in both lungs and heart. According to him, all these injuries were antemortem. He described all these injuries in Column No. 17 of postmortem report at Exhibit 43. On internal examination, he found corresponding injuries to the heart and two lungs. In his opinion, probable cause of death of Ashok Bangar was stab injuries involving in both lungs and heart. He has also opined that all the three stab injuries are possible with gupti article No. 7. In this regard, his evidence remained unshattered during cross-examination. Having regard to all this evidence of incontrovertible nature, there cannot be any doubt in this case that deceased Ashok met with homicidal death. 16. The vital question that arises for consideration in this case is whether prosecution has succeeded in establishing that the appellants are responsible for the said homicidal death of deceased Ashok. 17. Complainant Gopal (P.W. 2), who claims to be an eye-witness, gave evidence that the incident had taken place on the intervening night of 3rd and 4th September, 1995 at about 10.30 p.m. to 11.00 p.m. in the premises of Tamasha Theatre. He deposed that, on that day, he along with deceased Ashok and Prakash (P.W. 4) was proceeding to Hingoli by maruti car and when the car reached at Waranga Phata at about 10.30 p.m., the car was taken to the theatre at the instance of Ashok Bangar. He further stated that they all watched Tamasha for about ten minutes and started coming out of the theatre. It is stated that by that time, Ashok told them that they would go inside the wing of the theatre for some time and when they were going inside the wing, three dancers and one boy who is, accused No. 1, met them on the way to the wing. There Ashok asked those dancers as to why they did not come on the stage to show their performance. They replied that their term was over and another dancing party started showing their performance. According to him, thereafter, Ashok patted on dancer's upper hand by saying other dancers to go out. At that time, accused No. 1 Subhash was watching Ashok with jealousy. On noticing this, Ashok made inquiries as to why he was standing there. Accused No. 1 angrily said that he was going, hence Ashok got annoyed and gave one slap to him. Then accused Nos. At that time, accused No. 1 Subhash was watching Ashok with jealousy. On noticing this, Ashok made inquiries as to why he was standing there. Accused No. 1 angrily said that he was going, hence Ashok got annoyed and gave one slap to him. Then accused Nos. 2 to 4, who were there also scuffled with Ashok. He further gave evidence that the accused No. 1 threatened Ashok that he would see him and he went by the side of the wing of the theatre. Then they started coming to maruti car and at that time, accused Nos. 2 to 4 came towards the car, they caught hold of Ashok, thereafter accused No. 1 rushed towards Ashok with gupti in his hand, and pierced the same thrice in the chest of Ashok. He claimed that gupti article No. 7 is the same weapon which was used for assault on the deceased. He also identified cover of gupti article No. 8. However, it is to be noted that it is not his claim that when accused No. 1 appeared with gupti he was possessing gupti with cover and after removing the cover, he gave blows by gupti. Therefore, under such circumstances, on what basis he is claiming that he has identified the cover of gupti cannot be understood. He further stated that he, with the help of Prakash (P.W. 4) caught hold of the accused No. 1. Then Ashok went aside saying that he had to ease himself. Thereupon, he (complainant) made inquiry with accused No. 2 about the names of them and accused No. 2 disclosed his name as Deepak, the Manager of the theatre and he also disclosed the name of accused No. 1 as Subhash. He has also disclosed the names of accused Nos. 3 and 4 as Vitthal and Manohar, respectively. It may be noted that the eye-witnesses had no acquaintance with the accused persons prior to the incident. They were not knowing them. He further stated, that by that time, he noticed that Ashok who had gone to ease himself, was lying on the ground, hence they left accused and ran towards injured Ashok and when they went towards Ashok, all accused fled away. They were not knowing them. He further stated, that by that time, he noticed that Ashok who had gone to ease himself, was lying on the ground, hence they left accused and ran towards injured Ashok and when they went towards Ashok, all accused fled away. He further stated that thereafter they (these witnesses) lifted Ashok, kept him in maruti car, took him to the Government dispensary to Akhada Balapur, which is at a distance of about 12 to 13 kms. away from Waranga Phata, where the theatre is situated, and admitted Ashok in the Primary Health Centre for medical treatment. He further stated that on reaching the Primary Health Centre, Medical Officer called police of Akhada Balapur Police Station and referred the injured Ashok to Nanded Hospital and he, along with Prakash (P.W. 4) and Dayanand (P.W. 10) took him to the Nanded Hospital in the car and at that time, one employee of the Primary Health Centre and Head Constable Gangaram (P.W. 8) were accompanying them. He further stated that they reached at Nanded at about 1.00 a.m. and when Medical Officer examined Ashok, he declared him as dead and thereafter he lodged report with the Police Officer on duty at Nanded Hospital. His report is at Exhibit 41. 18. The narration of the incident by the other two eye-witnesses, namely Prakash (P.W. 4) and Dayanand (P.W. 10) the driver of maruti car, is generally on same lines, as it is to be found in the statement of complainant Gopal (P.W. 2). Now the vital question that arises for our consideration is whether the said evidence inspires confidence to sustain the conviction passed by learned Additional Sessions Judge. Cross-examination of the eye-witnesses and Police Officers reveal several important factors so inextricably connected with the alleged incident which cannot be ignored while testing veracity of these prosecution witnesses. It may be noted at the out set that the alleged incident did take place within the jurisdiction of Akhada Balapur Police Station and first aid was given to him at Primary Health Centre, Akhada Balapur. However, as his condition was critical he was shifted to Nanded Hospital where he was declared as dead. The said hospital comes within the jurisdiction of Vazirabad Police Station Nanded. There is a out post of Vazirabad Police Station at Nanded Hospital and Head Constable Mohd. However, as his condition was critical he was shifted to Nanded Hospital where he was declared as dead. The said hospital comes within the jurisdiction of Vazirabad Police Station Nanded. There is a out post of Vazirabad Police Station at Nanded Hospital and Head Constable Mohd. Rafique (P.W. 9) was on duty on the intervening night of 3rd and 4th September, 1995. There cannot be any doubt that cognizable offence had taken place within the jurisdiction of Akhada Balapur Police Station and Medical Officer informed the Police Station about admission of deceased Ashok in the Primary Health Centre in critical condition and as soon as said intimation was received by Police Station, police started taking entries in respect of the events that had taken place. 19. The learned Counsel for the appellants assailed the evidence of all these witnesses as well as the evidence of the Investigating Officer, by pointing out that their evidence suffers from inherent defects and improbabilities, which cast a cloud of suspicion of credibility of entire warp and woof of the prosecution story. He has drawn our attention to the station diary Entries Nos. 36 and 37 which are at Exhibits 86 and 85, respectively. Station diary Entry No. 36 has been taken at 23.30 hours. This is the first entry which was taken by the Akhada Balapur Police Station in respect of injured Ashok. This entry states that Medical Officer, Primary Health Centre, Akhada Balapur, had informed on phone that Ashok Bangar resident of Hingoli had come to the hospital in an injured condition and, therefore, Head Constable be sent to the hospital. The entry further contains particulars that in pursuance of the said intimation, Head Constable B. No. 155 was being sent to the hospital. Head Constable B. No. 155 has been examined as Head Constable Gangaram (P.W. 8). 20. The next entry i.e. Entry No. 37 has been taken at 23.35 hours. The said entry contains information that at 23.35 hours Prakash, who has been examined as P.W. 4 came to the Police Station and informed the Police Station Officer that Ashok Bangar, the Shiv Sena President of Hingoli taluka was assaulted with gupti by some persons at the theatre at Waranga Phata and they brought Ashok to the Balapur Hospital for medical treatment and that Medical Officer advised him to bring requisition from Police Station. The said entry also contains that in pursuance of this information, Head Constable B. No. 155 has been sent to the hospital for recording the statement of injured. Thus the Entry No. 37 makes it clear that Prakash (P.W. 4) while informing the Police Station Officer did not disclose the names of the assailants, but has categorically stated that deceased Ashok was assaulted by some persons. 21. During cross-examination of the witness Prakash (P.W. 4) when he was asked as to whether had he gone to the Police Station and gave this information to the police, he categorically denied the same. He was confronted with his police statement recorded during investigation under section 161(3) of Criminal Procedure Code, in which he has made categorical statement that he had gone to the Police Station and informed the police. When he was confronted with the said statement, which portion is marked as 'A', he categorically denied the same. In his further cross-examination, he categorically stated that he did not go to the Police Station and did not give statement about the assailants of Ashok Bangar. Complainant Gopal (P.W. 2) has categorically stated that he deputed Prakash (P.W. 4) and the driver Dayanand (P.W. 10) for going to the Police Station to inform police about the incident. He further made it clear that in his presence Prakash (P.W. 4) and the driver Dayanand (P.W. 10) went towards Police Station. The driver Dayanand (P.W. 10) has fairly admitted the fact that he along with Prakash (P.W. 4) had gone to the Police Station and after some time, they came back from Police Station to the hospital. In this background, it is clear that Prakash (P.W. 4) is deliberately suppressing the truth regarding his visit to Police Station and disclosure made by him before the Police Station Officer and this inference finds support in the Station Diary Entry No. 37, which was recorded as per information given by this witness. 22. Thus it is fairly established from the police record and the statements of Gopal (P.W. 2) and Dayanand (P.W. 10) that Prakash (P.W. 4) went to Police Station and gave information about the assault on deceased Ashok by some persons. 22. Thus it is fairly established from the police record and the statements of Gopal (P.W. 2) and Dayanand (P.W. 10) that Prakash (P.W. 4) went to Police Station and gave information about the assault on deceased Ashok by some persons. Now the question arises why he could not disclose the names of assailants before the Police Station Officer, who had taken Entry No. 37, though this witness claimed that accused No. 2 Deepak, on interrogation at the time of the incident, disclosed his identity as Deepak, the Manager of the theatre and also disclosed the identity of the main accused No. 1 as Subhash and that of accused Nos. 3 and 4 to be Vitthal and Manohar. Same story is also disclosed by other two eye-witnesses. It may also be noted that, as discussed above, Gopal (P.W. 2) in his deposition has clearly stated that as soon as they saw Ashok lying at the spot where he had gone for easing, they all ran towards that place and at that juncture, all the accused persons took to their heels. His statement clearly indicates that, disclosure of names of assailants by accused No. 2 was made before the accused persons ran away. If such a disclosure of the names of the assailants is really made by the accused No. 2 Deepak, then the question arises why Prakash (P.W. 4) could not disclose the names of the assailants before the Police Station Officer when Entry No. 37 was taken. Inference can safely be drawn that Prakash (P.W. 4) was not knowing the names of the assailants when he gave information to the police and that is why he told police that some persons assaulted deceased Ashok with gupti. This clearly shows that Prakash (P.W. 4) was not knowing the names of assailants when he went to Police Station. All witnesses claimed the disclosure of identity made by accused No. 2 to be the source of information to know names of assailants. If it is a fact, Prakash (P.W. 4) would have disclosed it to Police Officers. Therefore, the story regarding disclosure of names of accused by one of the accused appears doubtful. It is also difficult to believe that the assailants would come forward to disclose their own identity before they ran away from the spot. If it is a fact, Prakash (P.W. 4) would have disclosed it to Police Officers. Therefore, the story regarding disclosure of names of accused by one of the accused appears doubtful. It is also difficult to believe that the assailants would come forward to disclose their own identity before they ran away from the spot. It has come in evidence of all the eye-witnesses that all the accused were unknown to them by names as well as by faces prior to the incident. 23. The next circumstance, which creates doubt about the time at which police came to know about the names of the assailants is that P.S.I. Alsatwar (P.W. 11) stated that he had also gone to the hospital on that day to see the injured. He stated that before he left the Police Station for the hospital, he made entry to that effect in station diary. The said entry is at Serial No. 38 which is at Exhibit 84, which refers to the time of departure of this officer at 2340 hours for going to the Primary Health Centre. He put his signature below the said station diary entry. In his cross-examination, he admits that he had perused both the entries bearing Nos. 36 and 37 of Akhada Balapur Police Station before his departure towards Primary Health Centre. He admits that when he visited the hospital, Gopal (P.W. 2) and Prakash (P.W. 4) were present in the hospital. He further admits that he did not make any inquiry either with Gopal (P.W. 2) or Prakash (P.W. 4) about the incident and the assailants. It may be noted that he was a responsible officer. On perusal of entry No. 37, he must have noticed that a serious offence that too a cognizable offence had taken place but assailants are unknown. Under such circumstances, such an officer would not have forgotten to enquire Gopal (P.W. 2) and Prakash (P.W. 4), who were accompanying the injured Ashok, to seek information from them about the names of the assailants. It may also be noted that he stated that thereafter he had gone to Waranga Phata during the night and he came to know about the names of the assailants at 2.30 a.m. on 4-9-1995. He stated that he did not record the statement of the person from whom he came to know the names of the assailants of Ashok Bangar. He stated that he did not record the statement of the person from whom he came to know the names of the assailants of Ashok Bangar. In this regard, it is to be noted that there is no entry in the station diary as regards the departure of this Police Officer from police station to Waranga Phata and also regarding arrival to Police Station and again going from the Police Station to Waranga Phata. Had he come to know the names of the assailants from any person, he would not have forgotten to record the statement of such a person. Similarly, he would have definitely taken the entry regarding the names of the assailants when he came to the Police Station. On the contrary, the Station Diary Entry No. 5 dated 4-9-1995 shows that at 2.45 a.m. Police Head Constable Gangaram (P.W. 8) had made inquiry to the Akhada Balapur Police Station as to whether the said Police Station has received information about the names of the assailants and in pursuance of that query, reply was given to him that names of assailants were not ascertained till that time. This clearly indicates that Police Officers of Akhada Balapur Police Station including Gangaram (P.W. 8) were not knowing the names of the assailants till 2.45 a.m. on 4-9-1995. 24. It may be noted that Head Constable Gangaram Gavate (P.W. 8) who made inquiry at 2.45 a.m. about the names of the assailants is the same person who was deputed for recording the statement of the injured Ashok Bangar in the hospital and as he found the injured in unconscious state, he was direrected to go to the Nanded Hospital along with the injured. He was accompanied by Gopal (P.W. 2), Prakash (P.W. 4) and Dayanand (P.W. 10). He has not recorded the statement of any of them to know the names of the assailants. At least he could have collected the information about the names of assailants, as this Head Constable was accompanying these witnesses from 11.35 p.m. onwards for the whole night and if these eye-witnesses were knowing the names of the assailants, there was no difficulty for this Head Constable who was accompanying them to get the information regarding names of the assailants, at least oral information, if he did not want to record the statements of these witnesses. As he was deputed to record the statement of the injured, to know the names of the assailants, it was expected from him to have collected the information either orally or by recording the statements of his friends Gopal (P.W. 2), Prakash (P.W. 4) and Dayanand (P.W. 10). Such a conduct of the witness is fatal to the reliability and acceptance of testimony of such witness. 25. History of injuries could be made available through the medical case papers. Complainant Gopal (P.W. 2) stated that Medical Officer of Primary Health Centre, Akhada Balapur had made inquiry with them as to who had assaulted the injured person and with what weapon and he had disclosed the names of assailants to the Medical Officer and also disclosed the weapon with which Ashok was assaulted. Dr. Durge (P.W. 1) stated that he had taken history from persons namely Prakash (P.W. 4) and Gopal (P.W. 2) about occurrence of injuries to Ashok. However, he admits that he had not mentioned history in case papers. The learned Counsel for appellants contended that this was the first opportunity to prosecution to know the history of injuries and consequently the names of assailants, second occasion was available when Prakash (P.W. 4) went to Police Station, third was available when P.S.I. Alsatwar (P.W. 11) went to the Primary Health Centre, fourth was available when Head Constable Gangaram Gavate (P.W. 8) was accompanying Gopal (P.W. 2) and Prakash (P.W. 4) from Akhada Balapur to Nanded. However, despite of having all occasions to know names of assailants, the station diary entry No. 5, dated 4-9-1995 shows that names were not known till 2.45 hours of 4-9-1995. In this background, the learned Counsel for appellants contended that none of them i.e. police or the eye-witnesses knew the names of assailants till 2.45 hours of 4-9-1995. The learned Counsel for appellants assailed the alleged report Exhibit 41 containing names of accused persons lodged by complainant Gopal (P.W. 2) before Head Constable Mohd. Rafique (P.W. 9), which is placed on record as first information report. According to him, it is a fabricated document brought into existence subsequently by suppressing the original. In support of his contention, he relies on the following factors in addition to the above circumstances: (a) There is no mention of time of writing the said report. (b) It is not in the hand writing of Head Constable Mohd. According to him, it is a fabricated document brought into existence subsequently by suppressing the original. In support of his contention, he relies on the following factors in addition to the above circumstances: (a) There is no mention of time of writing the said report. (b) It is not in the hand writing of Head Constable Mohd. Rafique (P.W. 9), who is alleged to have written the said report. (c) Name of scribe is not mentioned in the said report. (d) Scribe is not examined. (e) Though it is recorded by Police Officer of Vazirabad Police Station, who held inquest on dead body, attached clothes of deceased and referred dead body for postmortem examination, offence is not registered as Zero number at Vazirabad Police Station. In order to appreciate the above contentions raised by learned Counsel appearing on behalf of the appellants, it would be just and proper to refer to the deposition of Head Constable Mohd. Rafique (P.W. 9). 26. Head Constable Mohd. Rafique (P.W. 9) gave evidence that on 3-9-1995, he was on duty at police out post at Nanded Hospital from 8.00 p.m. till 8.00 a.m. on next day i.e. 4-9-1995. He further stated that on receipt of M.L.C. report on 4-9-1995 at about 1.30 a.m., he went there and saw the dead body of deceased Ashok. He further stated that two persons namely Gopal (P.W. 2) and Prakash (P.W. 4) were present near the dead body. He made inquiry with Gopal (P.W. 2) about the incident and Gopal (P.W. 2) narrated the occurrence before him elaborately and he reduced the said report of Gopal (P.W. 2) into writing as per his version vide Exhibit 41, which bears his signature. In his cross-examination, he admits that Exhibit 41 is not in his hand writing. He was not in a position to tell with certainty as to who is the scribe of the said report, however, he admits that the report Exhibit 41 does not bear the signature of the scribe. Though he has stated that he reduced the said report into writing between 1.30 a.m. to 2.30 a.m., he admits that time of recording the report is not mentioned on the report Exhibit 41 though time is required to be mentioned on such report. Though he has stated that he reduced the said report into writing between 1.30 a.m. to 2.30 a.m., he admits that time of recording the report is not mentioned on the report Exhibit 41 though time is required to be mentioned on such report. He stated that he had drawn the inquest panchanama, wrote letter to Medical Officer for postmortem examination and attached the clothes of deceased vide panchanama Exhibit 27 and handed over all the papers to Head Constable of Akhada Balapur Police Station after taking entry of the same in station diary of Police Station Vazirabad Nanded Police Station. In his cross-examination, he further admits that he deposited all these papers, including the report Exhibit 31 with Vazirabad Nanded Police Station and as per the procedure, offence was required to be registered under Zero number, however, he further made it clear that on depositing such papers, no offence was registered under Zero number. No explanation came from this witness as to why the offence is not registered under Zero number, though as per procedure it was required to do so. P.S.I. Alsatwar (P.W. 11) the Investigating Officer has also admitted that it is the procedure that if Police Officer of out post has to take cognizance of the offence, he has to send all the relevant papers to the concerned Police Station, in whose territorial jurisdiction the out post is situated. Fact remains that though the Police Officer of Vazirabad Police Station got the report of complainant Gopal (P.W. 2) recorded, he failed to register the offence. Had he registered the crime even as crime No. Zero that would have been an authentic document disclosing the time of recording the said information and names of assailants. P.S.I. Alsatwar (P.W. 11) stated that the case papers which were prepared by Head Constable Mohd. Rafique (P.W. 9) were not sent to Vazirabad Nanded Police Station and those papers were handed over to him directly. Head Constable Mohd. Rafique (P.W. 9), who prepared the papers, as already mentioned, has categorically stated that he sent the papers to Vazirabad Nanded Police Station and station diary entry was taken to that effect. Therefore, the explanation given by P.S.I. Alsatwar (P.W. 11) cannot be accepted. 27. Head Constable Mohd. Rafique (P.W. 9), who prepared the papers, as already mentioned, has categorically stated that he sent the papers to Vazirabad Nanded Police Station and station diary entry was taken to that effect. Therefore, the explanation given by P.S.I. Alsatwar (P.W. 11) cannot be accepted. 27. It may be noted that P.S.I. Alsatwar (P.W. 11) went to Nanded Hospital at about 7.30 a.m. on 4-9-1995, he left Nanded at about 8.00 a.m., came to Akhada Balapur Police Station at 10.10 a.m. and registered the offence at 10.10 a.m. against the accused persons. Station Diary Entry dated 4-9-1995 to that effect is at Serial No. 40 and this is the authentic record to show at what time the police came to know about the names of the accused persons. Though the Investigating Officer claimed that the accused were arrested during night time, but when the charge-sheet prepared was shown to him, he admitted that arrest of the accused persons was made on 4-9-1995 at 10.10 a.m. 28. Head Constable Rafique (P.W. 9) admitted that he prepared all the papers in his hand writing and he reduced the report of Gopal (P.W. 9) into writing through scribe. Thus, it is very surprising to note that except the report Exhibit 41, all the documents are in his own hand writing. A suggestion was given to this witness in the cross-examination that on arrival of P.S.I. Alsatwar (P.W. 11), report Exhibit 41 which was already written, was brought to him and his signature was simply obtained on it. He denied the said suggestion. However, the conduct of this witness, in the circumstances pointed out above, casts a cloud of doubt as regards the time of recording the report of Gopal (P.W. 2). It may be noted that this witness has drawn the inquest panchanama Exhibit 27 from 2.00 p.m. to 2.30 p.m. This witness claimed that he recorded report Exhibit 41 between 1.30 p.m. to 2.00 p.m. If it is so, then in the inquest panchanama, the names of assailants, on the basis of the information given in Exhibit 41, would have appeared, but though inquest panchanama Exhibit 27 is subsequent to the alleged report Exhibit 41, he is silent about the names of the assailants. On the contrary, it is mentioned that deceased Ashok received injuries at the hands of one person. On the contrary, it is mentioned that deceased Ashok received injuries at the hands of one person. Had the report Exhibit 41 been registered under Zero number at Vazirabad Nanded Police Station, there was no scope for concoction and the appellants would not be in a position to contend that it is a fabricated document. All the above circumstances, together with the other additional factors to be discussed below, therefore, cast a cloud of doubt regarding the genuineness of the report Exhibit 41 to be the first information report. 29. Though Head Constable Mohd. Rafique (P.W. 9), in his examination-in-chief, stated that he reduced the report of Gopal (P.W. 2) into writing and the said report is in his hand writing, but that report which is in his hand writing is not forthcoming. Hence question arises as to where is that report and there is no explanation from the prosecution, in this regard, on the contrary, it tries to create an impression that Exhibit 41 is the same report. If it is so it should be in the hand writing of Head Constable Mohd. Rafique (P.W. 9). Name of the scribe ought to have been mentioned on it and he ought to have been examined by the prosecution. Considering the facts and circumstances, prosecution could disclose the names of the accused authentically for the first time at 10.10 a.m. as per the police record. Considering various factors discussed above, there appears much substance in the contention raised by the learned Counsel for the appellants that Exhibit 41 is brought into existence after a lapse of considerable time to implicate the accused persons. 30. It is pertinent to note that the Investigating Officer has admitted that he has recorded the statements of the Proprietor of the Tamasha theatre. He further admits that he has also recorded the statements of the dancers. It is also pertinent to note that the incident occurred when the dancing performance was going on. It has come in evidence of the complainant Gopal (P.W. 2) that on hearing hue and cry, persons watching the dancing performance, had come out of the theatre and they were about 20 to 30 in number. Not a single dancer, with whom the deceased had conversation, nor any of these 20 to 30 spectators, who came out of theatre and witnessed the assault, has been examined by the prosecution. Not a single dancer, with whom the deceased had conversation, nor any of these 20 to 30 spectators, who came out of theatre and witnessed the assault, has been examined by the prosecution. Therefore, adverse inference can be drawn that if the prosecution examined them, prosecution story would not find support from them. 31. The learned Counsel for the appellants further contended that the genesis of actual occurrence is suppressed by the prosecution. He has drawn our attention to the spot panchanama Exhibit 51 drawn by the Investigating Officer Shri. Alsatwar (P.W. 11) immediately after registration of the offence. The learned Counsel has drawn our attention to the fact that in the panchanama it is mentioned that spot was shown by complainant Gopal (P.W. 2), however Gopal (P.W. 2) in his cross-examination has categorically admitted that he had not gone to the spot and he had not shown the spot to P.S.I. Shri. Alsatwar (P.W. 11) and the panchas. He categorically stated that he was not present at the time of panchanama. It is surprising to note that though three stabs of gupti penetrating the same upto heart and two lungs are inflicted, no blood was found on the spot. Considering the nature of the injures, the blood would have come out with force and sprinkled on the spot. It is also pertinent to note that after receiving the injuries deceased Ashok had gone ahead to ease upto 20 ft. and at that place also there is no reference regarding finding of any blood, so also stools. The learned Additional Public Prosecutor submitted that there is a reference in the panchanama that the soil was found wet. He further submitted that there must have been rains during the night and as such blood stains were washed by rain water. The Investigating Officer has not stated that there were rains during the night. Mere finding of the wet earth during rainy season is not uncommon. It does not mean that there were rains that too during fateful night. Even if there were rains, there was no difficulty in collecting the sample of the earth from the spot of the incident in order to ascertain traces of blood if any. 32. It may also be noted that it has come in evidence that the eye-witnesses shifted the victim from the spot where he was lying and kept him in the maruti car. 32. It may also be noted that it has come in evidence that the eye-witnesses shifted the victim from the spot where he was lying and kept him in the maruti car. If it is so, their clothes must have come in contact with the clothes of the deceased and soaked with the blood. None of the eye-witnesses stated that his clothes were soaked with the blood of deceased. It may be noted that the chemical analyser's report Exhibit 79 shows that the shirt of the deceased was soaked with blood, which indicates that there was profuse bleeding. The Investigating Officer stated that he attached the shirt lying on spot. According to prosecution it was shirt of accused No. 1. Assuming that it belongs to accused No. 1 no blood stains were found on it. There is nothing on record to show that blood was also found in the car in which deceased was carried to the two hospitals. No blood stains were found on the clothes of the other accused also. Considering these circumstances, there appears much substance in the contention raised by learned Counsel for the appellants that genesis and origin of the actual occurrence is suppressed by the prosecution and that the incident did not take place in the manner as stated by the prosecution and it did not take place at the spot referred to in the panchanama. 33. It may be noted that the complainant Gopal (P.W. 2) while deposing before the Court initially stated the same story as revealed in report Exhibit 41 that after watching the dancing performance for 10 minutes when they were coming out of the theatre, one young boy met them just out side the theatre and scuffled with Ashok and the other accused also found scuffling with Ashok and thereafter when they were proceeding towards the car, accused No. 1 came with gupti and gave three blows of gupti on the person of Ashok. As pointed out above, this story which is consistent with the story given in his report Exhibit 41, does not find any reference regarding their visit to the wing of the theatre meant for the dancers. As pointed out above, this story which is consistent with the story given in his report Exhibit 41, does not find any reference regarding their visit to the wing of the theatre meant for the dancers. However, subsequently, he disclosed that before this occurrence, deceased Ashok took them towards the wing of the dancers where the dancers met them and at that place there was exchange of words between accused No. 1 and Ashok and Ashok slapped him and the other accused scuffled with him. Thus, according to him, the incident occurred at two places i.e. near the wing of the dancers and near the car. Said place is situated behind the stage of theatre i.e. back side of theatre and not on the front side of theatre as alleged in report Exhibit 41. In this regard, admission given by Gopal (P.W. 2) in his cross-examination speaks lot. He admitted that there are some rooms towards the back side of the stage and they are meant for residence of dancers and these rooms are having compound wall and they had gone towards back side of stage in one compound and that they had gone there through the gate which is meant for going inside the said compound. Incident of patting dancer and thereafter slapping accused No. 1 by deceased Ashok did take place at that place. This is the place where the accused No. 1 is alleged to have threatened the deceased Ashok. Considering the fact that no blood was found near the spot shown in the panchanama, there appears much substance in the contention that the incident must have occurred at the place other than the spot referred to in the panchanama and there is no evidence as regards the source of light at the place near the wing of dancers. There appears no reason for deceased Ashok to go to that side also and this part of the story is also suppressed in the report Exhibit 41 for the best reasons known to the complainant Gopal (P.W. 2). Complainant admits that he has not narrated this story while giving report Exhibit 41. Under such circumstances, we find much substance in the contention raised by the learned Counsel for the appellants that the prosecution has suppressed genesis and origin of actual occurrence and has not presented the true version. Complainant admits that he has not narrated this story while giving report Exhibit 41. Under such circumstances, we find much substance in the contention raised by the learned Counsel for the appellants that the prosecution has suppressed genesis and origin of actual occurrence and has not presented the true version. It transpires from evidence on record that some incident had probably taken place behind the theatre in or near the rooms of the dancers when deceased Ashok had gone to that room and patted the dancer. Under such circumstances, dancers would be the best witnesses but not a single out of the three dancers has been examined by prosecution to unfold the real story as to what had happened there. Non-examination of dancer is fatal to the prosecution. Under peculiar circumstances, especially the genesis and origin of occurrence is suppressed in report Exhibit 41, probably by shifting the story to the front side of theatre to suit the story putforward by prosecution. 34. The learned A.P.P. has submitted that Dayanand (P.W. 10) is the independent witness and defence could not give any reason as to why his testimony should not be believed, hence he further submitted that his testimony should be believed. In this regard, it is to be noted that he narrated the story in such a manner as if the entire incident occurred in front of theatre and the deceased and his friends did not go to the rooms of dancers. This testimony reveals that as soon as these persons came out of the theatre, the assault on deceased took place in his presence, but established fact is that it is not a factual position, but these persons after coming out of the theatre had gone to rooms of dancers and there the incident started. He had not gone there. As the occurrence in front of the theatre is doubtful and as he suppressed the fact of deceased going behind theatre where incident begins, his evidence fails to inspire confidence. His evidence suffers from material contradictions and discrepancies also. His conduct also appears unnatural. Police were in search of person for knowing names of assailants and this man admits that he did not disclose names of assailants till his statement came to be recorded on 5-9-1995. This type of conduct also supports the contention that his evidence fails to inspire confidence. His conduct also appears unnatural. Police were in search of person for knowing names of assailants and this man admits that he did not disclose names of assailants till his statement came to be recorded on 5-9-1995. This type of conduct also supports the contention that his evidence fails to inspire confidence. Thus while testing the veracity of the statements given by the witnesses before Court in the light of the various factors, they do not permit conscience of Court to accept the version of the witnesses and at any rate their such evidence which suffers from infirmities creates doubt and uncertainty sufficient to give benefit to the accused persons. 35. The prosecution has relied upon the evidence of discovery of the gupti and it's cover under section 27 of the Indian Evidence Act. According to the prosecution, Gupti cover was recovered in consequence of the information given by accused No. 1 the main assailant, but that discovery has no relevance, as it is not the case of the prosecution that accused came with gupti having cover over it, as already discussed, and as such said discovery has no significance. As regards the discovery of the gupti at the instance of accused No. 4 before the panchas, it also loses its significance, because even according to the prosecution eye-witnesses, they caught accused No. 1 who was armed with gupti and brought him to the car. While doing so, it is difficult to believe that these witnesses would have allowed the accused to keep the gupti with him. Under such circumstances, they could have snatched the gupti and without snatching it, it is not possible to over power accused No. 1 to bring him to the car. It is not the case of the eye-witnesses that when accused persons ran away, any of them took the gupti with them. Prima facie, unsustainable truth in prosecution story do not permit the Court to accept the evidence of discovery. In view of these circumstances, the alleged discovery of gupti has no relevance. Moreover, as the occular evidence appears untrustworthy, alleged discovery loses its significance. 36. To sum up, there appears much delay in registration of the offence. Prima facie, unsustainable truth in prosecution story do not permit the Court to accept the evidence of discovery. In view of these circumstances, the alleged discovery of gupti has no relevance. Moreover, as the occular evidence appears untrustworthy, alleged discovery loses its significance. 36. To sum up, there appears much delay in registration of the offence. Offence came to be registered at 10.10 a.m. on 4-9-1995 though police received information of the crime from Prakash (P.W. 4), who visited the Police Station personally at 23.45 hours in respect of which Entry No. 37 had been taken in station diary. The Police Station Officer was duty bound to register the crime according to the provisions of section 154 of Criminal Procedure Code, as the said information reveals undisputedly the cognizable offence. To know the scope of section 154 of Criminal Procedure Code, we can very well refer to the ruling of the Supreme Court in the matter of (State of Haryana v. Bhajanlal)1, reported in A.I.R. 1992 S.C. 604. Their Lordships at para 32 have observed: "It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before the Officer Incharge of a Police Station satisfying the requirements of section 154(1) of the Code, the said Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." Thus it is very clear from the provisions of section 154 of Criminal Procedure Code that when any information is received at the Police Station disclosing the cognizable offence, then police must register the crime and then proceed further as per the provisions of Criminal Procedure Code. Police cannot avoid registration of crime. 37. The learned Counsel for the appellants contended that the Police Station Officer of Akhada Balapur Police Station had deliberately failed to record the first information report on receipt of the information of cognizable offence and the first information report was prepared at very late hours when by that time, much water had already flown. According to the learned Counsel, the investigation is tainted and it would be unsafe to rely upon such a tainted investigation. According to the learned Counsel, the investigation is tainted and it would be unsafe to rely upon such a tainted investigation. In this regard, he relies on a decision of Supreme Court in the case of (State of U.P. v. Punati Ramulu)2, reported in A.I.R. 1993 S.C. 2644, in which it is observed by the Supreme Court at para 5 as under: "Once we find that the Investigating Officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know whether the police officer would have stooped to fabricate evidence and create false clues." 38. Considering the facts and circumstances of the present case, similar situation as observed in para 5 by the Apex Court, appears in the present case and, therefore, the said observations are applicable to the present case, as in the present case the Police Officer instead of registering the cognizable offence on receipt of the information, took only station diary entry and the Investigating Officer visited Waranga Phata twice where the incident occurred and claimed to have made inquiry to know the names of the assailants but even then failed to register crime and there is much delay in registration of crime. Therefore, it is unsafe to treat the report Exhibit 41 as the first information report, as it certainly would be a statement made during the investigation of the case under section 162 of Criminal Procedure Code, as contended by the learned Counsel for the appellants. 39. The learned Counsel for the appellants have also cited the following cases during the course of arguments. (1) A.I.R. 1973 S.C. 863 (State of U.P. v. Iftikhar Khan)3. (2) 1991 Cri.L.J. 452 (Vencil v. State of Rajasthan)4. (3) A.I.R. 1994 S.C. 1651 (Kashmira Singh v. State of Punjab)5. (4) 2000 Cri.L.J. 12 (Ramashish Yadav v. State of Bihar)6. These cases have been cited by Shri Godsay, learned Counsel for the appellants, as the appellants in Criminal Appeal No. 560 of 1996 have been convicted and sentenced by the trial Court with the aid of section 34 of Indian Penal Code. (4) 2000 Cri.L.J. 12 (Ramashish Yadav v. State of Bihar)6. These cases have been cited by Shri Godsay, learned Counsel for the appellants, as the appellants in Criminal Appeal No. 560 of 1996 have been convicted and sentenced by the trial Court with the aid of section 34 of Indian Penal Code. The law seems to be perfectly clear on the point and we are in agreement with the same. We do not think it necessary to deal with these cases as it is held that it is not possible to bring home the guilt to the accused persons. 40. Taking an over all picture of the fundamental aspect of the prosecution case, the evidence on record and the important features which have been noted by us as above led us to the conclusion that the prosecution evidence fails to inspire confidence and at any rate the evidence discussed above creates doubt and uncertainty sufficient to give benefit to all the appellants and, therefore, the order of conviction and sentence passed by the learned Additional Sessions Judge deserves to be quashed and set aside. 41. In the result, both the criminal appeals are allowed. The judgment and order of conviction and sentence, dated 18-9-1996, passed against all the appellants (accused) by the learned Additional Sessions Judge, Hingoli, in Sessions Case No. 16 of 1996, is hereby quashed and set aside and all the accused are acquitted of the offence charged against them under sections 302 r/w 34 of Indian Penal Code. They be released forthwith, if not required in any other case. Criminal appeals allowed. -----