JUDGEMENT PRABHAT KUMAR SINHA and BRAJ NANDAN PRASAD SINGH, JJ. ;- Both the appellants aforesaid stand convicted under section 302 read with section 34 of the Indian Penal Code (hereinafter referred to as 'the Code') and under section 201 of the Code having been sentenced for rigorous imprisonment for life for former offence and for five years' rigorous imprisonment, in the latter, each. The sentences were ordered to run concurrently in the judgment recorded by the 7th Additional Sessions Judge, Patna, in Sessions Trial no. 681 of 1986. 2. The case of prosecution, in brief and as coming out from the fardbayan of Vijay Kumar, son of the deceased (Exhibit-1), is that while he was at Patna, being a student there, on 16.8.1978 his brother-in-law, Kaushal Kishore Sinha (P.W.6) informed him that the appellants, his uncles, had murdered his father where after on 17.8.1978 he reached at his house and came to know from his mother, sister (P.W.5), his uncle Ram Krit Singh (P.W.2) and co-villagers that on 15.8.1978 at about 5.00 and co-villagers that on 15.8.1978 at about 5.00 P.M. when his father, who was posted as Sepoy at Kahalgaon Out Post, was returning to his home for some urgent work and had reached at Fatehpur Canal, the appellants having seen him coming, came there and assaulted on his head with several lathi blows at which he fell down, and raised hulla. On hulla the nearby people, namely, Ram Nandan Singh (P.W.4), Lalan Kahar (P.W.7), Tapeshwar Singh (P.W.3) and son of Mauji Sao (not examined) arrived there and carried away his father to his house. At the house also the appellants attempted to assault him but better sense prevailed and on the pretext of getting him treated took his father on a jeep to Khagaul and got him treated by one Dr. Mahendra Prasad but since he was not treated properly the father expired on 16.8.1978 at 5.00 P.M. Further allegation in the first information report is that the appellants forcibly took him to the cremation ghat at Patna and cremated him along with his blood - stained dress for which they forced Ram Krit Singh to consigne him to fire where after the appellants fled away. They also threatened to kill anyone who informed the Police. A formal first information report was drawn up and investigation proceeded. They also threatened to kill anyone who informed the Police. A formal first information report was drawn up and investigation proceeded. Ultimately trial took place in which the appellants, as aforesaid, were convicted. 3. It will appear that in the lower court the plea of the appellants was of innocence and that while the deceased was coming to his village by a Bus, while boarding - down he fell and injured himself which subsequently proved fatal. 4. P.W.1 is the informant himself who, as already seen, had given a hearsay account of the occurrence. Ram Krit Singh, full brother of the deceased and the appellants, also did not support the prosecution case in full as result of which he was declared hostile and so were P.Ws. 3, 4 and 7. P.W.S, brother-in-law of the informant, also has given evidence about hearing of the death of the deceased and to have informed the informant. He also was not the witness to the occurrence. P.W.8, Chandra Mohan Prasad, is a formal witness who has proved the formal first information report. 5. Coming to the evidence of witnesses, P.W.1 has said about receiving information from his brother-in-law and has proved Exhibit-1. He said that his father and his brothers were joint and the properties were being looked after by Ram Krit Singh, P.W.2. In the last he admitted that he had learnt about the incident from Kaushal Kishore Singh and in that context he had not named his sister, P.W.5. 6. The main evidence is that of P.W.5, Malti Sharma, the daughter of the deceased who has said that on the date of occurrence while she was at home she saw the appellants proceeding from their house with "Patti" of cot at which she and her mother followed them. When they reached west to the village she saw that the appellants were assaulting her father at which they raised hulla and co-villagers came. Here she claimed that when the father was brought to home it was Ram Krit Singh, P.W.2 who had take, him for treatment. About motive of assault he said that the appellants were insisting for partition for which the deceased had not given his consent for which reason he was assaulted. She also said that it was Ram Krit Singh who had cremated his father. About motive of assault he said that the appellants were insisting for partition for which the deceased had not given his consent for which reason he was assaulted. She also said that it was Ram Krit Singh who had cremated his father. She further admitted that before that day there had been no quarrel between the brothers for partition which lands were looked after by Ram Krit Singh whereas her father was in service. She said that in the village there were Dafadar and Chaukidar but she did not tell them about the incident. However, she claimed that on the date of occurrence though she did not go to the police station, but her mother had gone with Sanichar Musahar to the police station on 15th August, 1978 and had given her statement. She claimed that mother and Sanichar Musahar had expired. She has claimed that before Police she also had claimed having seen the occurrence and having told the Police that the appellants had proceeded from their house with the "Patti", (wooden-legs) of the cot and she and her mother had followed them. She admitted in cross-examination that she came to know that her father was coming from Bus but denied the suggestion that having fallen down from the Bus he had sustained injury on the head. She admitted that the father was taken for treatment by Ram Krit Singh and the people of the village. In that context she did not name the appellants, as claimed in the first information report. 7. P.W. 9, M.N. Chaudhary is the Investigating Police Officer who though has not said anything about the mother of the informant having gone to the Police Station on the date of occurrence and having told about the occurrence though he admitted that on that day he was the Officer-in-charge of Naubatpur Police Station. He said about the informant meeting him in the way and giving him a written report on the basis of which a case was instituted. He also has described the place of occurrence which was near a canal but he also admitted that till he visited the place of occurrence no eye-witness had turned up before him. He admitted that Ram Krit Singh had told him that the dead body was cremated at Bansghat, Patna. He also has described the place of occurrence which was near a canal but he also admitted that till he visited the place of occurrence no eye-witness had turned up before him. He admitted that Ram Krit Singh had told him that the dead body was cremated at Bansghat, Patna. When asked this witness said that Malti Devi did not tell him that the appellants had proceeded from their house with "Patti" of the cot rather had said that they had gone with lathi. He also said that she had not said that on raising hulla, co-villagers had assembled there. 8. Confronting this is the evidence of defence witness, Shiv Pujan Singh who claimed that on the date of occurrence he was working in the house of Khaderan Singh, father of the deceased. He said that the deceased had fallen down from the Bus for which reason he had expired. He also claimed that had seen him falling down from the Bus. He asserted that he was taken on jeep for treatment but could not survive. In cross-examination he said that he was living in the house of the deceased. He also claimed that he and other witnesses also hold told the Police that the deceased had died of the injuries suffered from his fall from the Bus. In cross-examination nothing of importance had been taken from this witness. 9. It may be noted that P.W.7, Lalan Ram who claimed that he was working as Khalasi and who also was declared hostile by the prosecution in cross-examination, admitted that Raj Nath Singh had fallen down while coming out from the Bus and had suffered a head injury where after people took him to his house and thereafter people had taken him to Khagaul for treatment. 10. The evidence on which the learned lower court has relied for convicting the accused is that of Malti Sharma, P.W.5. So far her evidence in the court is concerned, she has supported various contentions as coming in the first information report lodged by her brother who had claimed that he had come to know of the incident also from her. She admitted that the deceased was cremeted by P.W.2. So far her evidence in the court is concerned, she has supported various contentions as coming in the first information report lodged by her brother who had claimed that he had come to know of the incident also from her. She admitted that the deceased was cremeted by P.W.2. She has claimed that the assailants had gone with a "Patti" of the cot with which they had assaulted the deceased, though not only as per the first information report but also in her statement before Police, as admitted by P.W.9, she had said that the deceased was assaulted by the appellants with lathi. The "patti" of a cot and a lathi are so, different that there can hardly be any occasion to confuse between the two. This witness also admitted that the co-villagers had taken away the deceased for treatment. She has not supported that the appellants had come back to the house and wanted to assault further which was prevented by other people, where after they also took the deceased for treatment, but he died for want of proper treatment. 11. P.W.2 is Ram Krit Singh. He even denied having given any statement to the Police. When his attention was drawn by the prosecution towards his alleged statement before the Police, he denied having said those facts. He also denied that he had attended the cremation or had lit his pyre. 12. Therefore, it will be seen that no other witness claimed to be eye witnesses in the first information report, or even P.W.2, has supported the prosecution case. Rather one witness supported the defence version that the deceased had fallen down from the Bus, and sustained injuries, which was also the evidence of D.W.1. There also appears to be a vital contradiction between statement of P.W.5 before Police and in the court about the weapon of assault. 13. It was argued on behalf of the appellants that though occurrence is said to have taken place on 15.8.1978 at about 5.00 P.M. fardbayan by the informant was given on 17.8.1978 at about 4.00 P.M. which delay has not been explained. It was pointed out that many persons including, P.W.5, and her mother are said to have seen the occurrence but no one informed the Police that day. It was pointed out that many persons including, P.W.5, and her mother are said to have seen the occurrence but no one informed the Police that day. About the claim of P.W.5 that her mother had gone to the Police Station that day with Sanicher Paswan, no evidence has been brought on the record to substantiate that. As per evidence of P.W.6, Kaushal Kishore Sinha, brother-in- law of the informant, when he had come to know of the incident, he had informed the informant on 16.8.1978 itself but neither he nor the informant on that day filed any case. Even on 17.8.1978, as per Exhibit-1, written information was given to the Police officer at 4.00 P.M. No cogent evidence has come on the record to satisfactorily explain this delay. Learned counsel for the appellants has argued that when the informant side came to now that the deceased had died having fallen from the Bus, two days thereafter, taking advantage of that incident they had cooked up this case. This delay in filing the case before Police raises further doubts about the veracity of the prosecution case. 14. Learned counsel for the appellants also pointed out that nowhere it has come in the evidence that it was known to anyone that the deceased on that day was coming to his house. Therefore even if P.W.5 had seen the two appellants going out from their house with "Patti" of the cot or with lathi, there was hardly any occasion for her to follow them. There is force in the argument and in view of the contradictions we do not find that appellants could be convicted on the basis of the sole evidence of P.W.5 as it stands on the record. 15. However, it will appear from the judgment of the learned lower court that the statements of the P.W.5 and other witnesses made before Police, as noted in the case diary, have been used as substantive evidence in order to find that the prosecution had proved its case against the appellants beyond reasonable doubts. For this it will suffice to quote a paragraph from the judgment- "22. For this it will suffice to quote a paragraph from the judgment- "22. The evidence of Malti and her statement in the case diary went to disclose that after her clandestine movement behind the rush of her two uncles in compagin (sic) to inflict assault on her father which she had scented immediately before on rush of Rambabu in hot haste where he had whispered to Shyambabu "Sipahiya is coming, let us rush and kill him" she had rushed at the western side of her village and seen the two accused inflicting lathi blows over the head of her father which led to bleeding and thrashing him on the ground raising alarm of 'save save'. Several villagers including the witnesses rushed and saved him. The factum of rush and rescue at the hands of villagers and the witnesses declared hostile before the court gets corroboration from their previous statement before the police which has been admitted by the I.O. in his evidence in para 8, 9 & 10 as well. Not only that previous statement of Ram Krit Singh as well contained in case diary also went to reflect that he had seen bleeding injuries at the head of deceased Rajnath lying on cot on 15.8.78. So, the factum of existence of injuries caused by the two assailants with the help of lathis stands substantiated." 16. The entire judgment is replete with such examples of employing statements under section 161 of the Code of Criminal Procedure as substantive evidence. Obviously the learned lower court could have relied only on the evidence that was adduced in the court and could not have considered the statements of the witnesses including that of P.W.5 recorded by the Police in order to fill up the lacunae in the prosecution case. Learned Additional Public Prosecutor also admitted this fact but has argued that if the evidence of P.W.5 is believable, then discarding those statements made before the Police, the appellants could be convicted. 17. From what has already been discussed it cannot be said that the prosecution had proved its charges against the appellants beyond reasonable doubts. 18. This being so, this appeal is allowed, the conviction and the sentence awarded to the appellants are set aside and they are acquitted of the charges framed against them. The appellants are on bail. They are also discharged from the liabilities of their bail bonds.