JUDGMENT S.K.Agarwal, K.K.Misra 1. HEARD learned counsel for the appellants and learned A.G.A. 2. BOTH these criminal appeals arise from a judgment passed by the then Ist Additional District Judge, Basti dated 30.6.1984. By the said order and judgment, the appellants were convicted and sentenced to undergo under Section 147, I.P.C. 6 months R.I., under Section 342/149, I.P.C. 6 months R.I., under Section 325/149, I.P.C. one year's R.I. and under Section 302/149, I.P.C. life imprisonment. Criminal Appeal No. 1770 of 1984 was filed by Ashwani Kumar Pandey. Hari Om Srivastava, Arun Kumar Tiwari and Sri Prakash Bhar and Criminal Appeal No. 1771 was filed by Raj Kumar Pandey alone. BOTH these appeals are disposed of by a common judgment. Brief facts of the case are that on 26.12.1980, plinth was got dug during the day hours by the labour of Sahdev Dhar Dwivedi, father of the informant. At about 5.30 p.m. when they went there to pay the day's wages to the labour, they found that Ashwani Kumar Pandey and his son Raj Kumar Pandey, Arun Kumar Tiwari, Hari Om Prakash and one of the servant of Ashwani Kumar were filling their plinth by pushing back mud which was stacked beside the dug-up plinth. When Sahdev Dhar Dwivedi asked them to desist from doing so, Ashwani Kumar Pandey exhorted his companions "Maaro Salo ko and inter them in the plinth". On this exhortation, all the accused started belaboring his father with lathis. A lathi blow by Raj Kumar struck his father on his head. As a result of this injury, he fell down. When the informant Raghvendra Dhar Dwivedi, P.W. 1, rushed to save him, he too was assaulted. Their alarm attracted Nanhau, Phoolram and Ram Charan and other labour to the site of occurrence. They saved his father from further assault. The assailants thereafter took injured Sahdev Dhar Dwivedi into their custody and brought him to police station. On their way to police station also, they assaulted him. The F.I.R. of the incident was lodged by Raghvendra Dhar Dwivedi, P.W. 1 at P. S. Kotwali, district Basti on 26.12.1980 at about 8.30 p.m. i.e., 3 hours after the occurrence. The police station is placed at 4 kms. from the place of occurrence. A case under Sections 147/323/307/342, I.P.C. was registered at the above said police station. The investigation was entrusted to Raj Dev Rai, P.W. 9. The police station is placed at 4 kms. from the place of occurrence. A case under Sections 147/323/307/342, I.P.C. was registered at the above said police station. The investigation was entrusted to Raj Dev Rai, P.W. 9. He took up the investigation and on its completion, submitted a charge-sheet which had ultimately resulted into conviction of these appellants as stated above. 3. INJURED Sahdev Dhar Dwivedi was medically examined by Dr. G. P. Shukla, P.W. 5 on 26.12.1980 at 7.05 p.m. He found following injuries on his person : (1) Lacerated wound 8 cm. x 1 cm. x bone deep on left side head 8 cm. above left ear, bleeding present. (2) Abrasion 2 cm. x 0.5 cm. on shin right leg 14 cm. below right knee joint. (3) Abrasion 2 cm. x 0.5 cm. shin of right leg 11 cm. below right ankle joint. According to him, injury No. 1 was kept under observation. It was caused by some hard blunt object. Advise for X-ray. A. P. was made. Rest of the injuries were simple. The duration of the injuries was fresh. 4. RAGHVENDRA Dhar Dwivedi was examined at 10.30 p.m. by Dr. P. K. Misra on the same day. This doctor was not examined in the trial court. His medical examination report is Ex. Ka-20 on record. According to the medical officer, these injuries were simple. Injury Nos. 1 and 5 was caused by some hard blunt object whereas injury Nos. 2, 3 and 4 caused due to friction. No advise for any X-ray examination of injury No. 5, i.e., contusion was made by the doctor. However, the injured, according to him, got himself X-rayed by a private radiologist Dr. R. N. Chaudhary, P.W. 11 after 2 days of the first medical examination. Dr. R. N. Chaudhary found lowest end of fibula fractured. It is Ex. Ka-19 on the record. He had prepared the report on its basis. The deceased, Sahdev Dhar Dwivedi, breathed his last in the District Hospital, Basti at 5.20 a.m. on 28.12.1980. His post-mortem was conducted by P.W. 6 Dr. S. J. Tekriwal on the same day at 2.30 p.m. Following injuries were noted by the doctor : (1) Stitched lacerated wound (5 stitches) : 8 cm. x 1 cm. x bone deep, scalp, left side, 8 cm. above ear ; 4 cm. from midline oblique. (2) Contusion 8 cm. x 6 cm. S. J. Tekriwal on the same day at 2.30 p.m. Following injuries were noted by the doctor : (1) Stitched lacerated wound (5 stitches) : 8 cm. x 1 cm. x bone deep, scalp, left side, 8 cm. above ear ; 4 cm. from midline oblique. (2) Contusion 8 cm. x 6 cm. top of scalp, right side, just lateral to midline, oblique. (3) Contusion 6 cm. x 4 cm. around medial part of right eye. (4) Abraded contusion 5 cm. x 1.5 cm. on neck right side 3 cm. above clavicle, oblique. (5) Contusion 10 cm. x 4 cm. on left forearm, right hand. (6) Abrasion 2 cm. x 0.5 cm. right leg front, 14 cm. below knee joint. (7) Abrasion 2 cm. x 0.5 cm. right leg front, 4 cm. below injury No. 6. (8) Contusion 9 cm. x 4 cm. chest left side, oblique, crossing nipple. Injury No. 1 was also noted in the medical examination report (Ex. Ka-20). Injury Nos. 6 and 7 were also there in the medical examination report. Rest of the injury Nos. 2, 3, 4, 5 and 8 were not noted by Dr. G. P. Shukla, P.W. 5. They were not there in his medical examination report. In the internal examination, scalp has ecchymosis in an area of 25 cm. x 18 cm., readiating multiple fracture of left parietal, temporal and frontal bone in an area of 12 cm. x 10 cm. under injury No. 1 and depressed fracture left temporal bone 6 cm. x 3 cm. under injury No. 1 was also detected. This injury apparently was the cause of death. The post-mortem examination report is Ex. Ka-4. 5. THE defence in this case has pleaded their false implication on account of enmity and had not adduced any evidence in support of their case of denial. 6. THE prosecution in support of its case examined eye-witnesses P.W. 1, Raghvendra Dhar Dwivedi, he is son of the deceased, P.W. 2 Ram Charan and P.W. 3, Phool Ram, they are labour who claimed to have dug the plinth on his plot on the day of occurrence. THEse two eye-witnesses turned hostile and have not supported the prosecution case. In the circumstances, this Court is left with the evidence of P.W. 1, Raghvendra Dhar Dwivedi alone. All other witnesses are formal in nature. P.W. 4 is Dr. THEse two eye-witnesses turned hostile and have not supported the prosecution case. In the circumstances, this Court is left with the evidence of P.W. 1, Raghvendra Dhar Dwivedi alone. All other witnesses are formal in nature. P.W. 4 is Dr. R. C. Verma, who had conducted X-ray examination of the scalp injury of the deceased. P.W. 5 is Dr. G. P. Shukla, who medically examined Sahdev Dhar when he was alive. Dr. S. J. Tekriwal, P.W. 6, conducted the autopsy on the dead body of the deceased. Chattradhari Singh, P.W. 7, is a Sub-Inspector, who conducted the inquest on the corpus of Sahdev Dhar Dwivedi. He belonged to P. S. Kotwali where the F.I.R. was registered. P.W. 8, Bipin Bihari Singh is Head Moharrir. He has prepared the chick report and other documents pertaining to the registration of the F.I.R. lodged by Raghvendra Dhar Dwivedi. P. W. 9, Raj Dev Rai, is the Investigating Officer. P.W. 10, Ram Bahadur escorted the dead body to mortuary for post-mortem. P.W. 11, Dr. R. N. Chaudhary, is the private radiologist who examined radiologically the injury of Raghvendra Dhar Dwivedi and noted a fracture in the lower end of fibula bone. P.W. 2, Omkar Nath Shukla is the pharmacist who proved the handwriting of Dr. P. K. Misra, who prepared injury report of Raghvendra Dhar Dwivedi. This in the nutshell is the entire prosecution evidence. Mr. A. D. Giri, Senior Advocate, for the appellants submitted that the injuries of Raghvendra Dhar Dwivedi cannot be accepted by the Court as genuine. In his opinion, these injuries are fabricated and manufactured at the behest of Dr. Ojha, a Government Medical Officer posted at Shahjahanpur, who reached this district within 24 hours on receiving a telephone communication. He was present during post-mortem examination also. He is eldest son-in-law of the deceased. Deceased was a compounder with Dr. Shukla, a close relation who is a private medical practitioner and wielded considerable influence in the district medical fraternity. Both these persons have influenced the local medicos. It is further asserted by him in this connection that the radiological examination report, Ex. Ka-19, of this injured witness was fabricated later on. According to him, it is not possible for this witnesses to walk a distance of 4 Kms. with fractured fibula especially at its lower end. One kilometre is his house from the spot and then another 3 Kms. Ka-19, of this injured witness was fabricated later on. According to him, it is not possible for this witnesses to walk a distance of 4 Kms. with fractured fibula especially at its lower end. One kilometre is his house from the spot and then another 3 Kms. is the police station from there. He went to lodge the report on foot which is an improbability almost. He has also challenged the general conduct of this witness very seriously. The deceased was his father. He himself was the only male issue to him. He did not make any attempt to find out where his father was taken away, what is his condition and whether he has been provided any medical attention though such anxiety was most natural for him. He had not exhibited any such care and caution inspite of the fact that many advocates' residences fell on his way to his house from the spot of occurrence. He himself is an advocate, yet he did not go to any one of them seek their help. Even Collectorate fell in between this distance and availability of a telephone there is not denied by him. He did not think of the use of any telephone to inform the police. These facts lead to the conclusion that the informant, in all likelihood, was not present at the spot when this incident occurred and was not aware of the events. It is further asserted by him that in this assault, only 5 persons are the participants according to the F.I.R. and all of them were armed with lathis. During, trial participation of only 3 accused was alleged. Some labour certainly were present on the spot. They came to dig the plinth for the construction of a residential house on the concerned plot and, therefore, they must have some instruments like spade and kudal, etc. with them yet none of them tried to protect the deceased. The distance between the plot of occurrence and the village of the deceased was about 30-40 Kms. In these facts and circumstances, his contention in the nutshell is that it will not be safe to place any implicit reliance on the testimony of P.W. 1, Raghvendra Dhar Dwivedi to uphold the conviction of these appellants. The distance between the plot of occurrence and the village of the deceased was about 30-40 Kms. In these facts and circumstances, his contention in the nutshell is that it will not be safe to place any implicit reliance on the testimony of P.W. 1, Raghvendra Dhar Dwivedi to uphold the conviction of these appellants. Lastly in the alternative, it was submitted that the conviction of these accused persons under Section 302 read with Section 149, I.P.C. may not be sustained. The injury on the scalp, according to the F.I.R., was attributed to Raj Kumar Pandey alone. The discrepancy between first medical examination and the post-mortem examination report on number of injuries has also been made use of in this context by learned senior advocate Sri A. D. Giri to the advantage of the defence. 7. LEARNED A.G.A. in response to these submissions, asserted that it is not possible to disbelieve P.W. 1, who is an injured witness. The deceased was his father and he had no motive against the accused persons to nominate them falsely in the incident. 8. AS earlier stated that we are for the present left with the testimony of P.W. 1 and the attending circumstances alone for his corroboration. In the result, we prefer to examine the evidence of P.W. 1 in the light of the submissions made from both sides. It is admitted by P.W. 1, Raghvendra Dhar Dwivedi, that when he tried to save his father, he was also beaten. His injuries were examined at 10.30 p.m. The deceased was taken to the police station by the accused persons. They had also lodged a report under Section 380, I.P.C. against him. This report was neither brought on record nor its contents were proved and placed by either these accused persons or the prosecution. In the circumstances, we are unable to make use of that report in evidence against the appellants. None of the appellants had even alleged this as a fact in their statements under Section 313, Cr. P.C. It is also a fact that there is discrepancy in number of injuries between the first medical report of the deceased and the post-mortem examination report. As many as 5 contusions were noted down by Dr. G. P. Shukla, P.W. 5. This discrepancy has not been resolved at all by the prosecution. P.C. It is also a fact that there is discrepancy in number of injuries between the first medical report of the deceased and the post-mortem examination report. As many as 5 contusions were noted down by Dr. G. P. Shukla, P.W. 5. This discrepancy has not been resolved at all by the prosecution. This discrepancy, in our opinion, has a bearing upon the prosecution story and the evidence of P.W. 1, who had stated in the Court as well as in his F.I.R. and in Section 161, Cr. P.C. statement that all the 5 persons assaulted his father by lathis and Raj Kumar gave a lathi blow on the head of the deceased. After the assault while he was carried to the police station by the accused persons, he was also beaten. This factum is not corroborated if we go by the first medical examination report. No suggestion has been made from the side of the prosecution to Dr. G. P. Shukla that injuries were minimised or incorrectly noted by him. The deceased was medically examined by P.W. 5 at 7.05 p.m. Apart from it, coming to the injuries of the injured itself, a different conclusion is flowing. We have perused his injuries carefully and it appears that these injuries were manufactured. Injury No. 1 was a lacerated wound 0.75 cm. x 0.25 cm. x muscle deep on the outer and upper part of right upper eye lid, 1 cm. above the outer angle of right eye bleeding present with swelling 2 cm. x 1 cm. However, the injury Nos. 2, 3 and 4 are linear abrasion that hardly could be caused by a lathi blow. It may be probable due to some fall which is not the case of prosecution. On the contrary, any fall, either his or his father's in the plinth, is denied by this witness. According to him, the assault had taken place about a feet and half from the plinth and none of them fell in it. Injury No. 5 is a contusion 9 cm. x 2 cm. on the back of right leg on outer aspect, 14 cm. below the popliteral fossa. According to P.W. 11, Dr. R. N. Chaudhary, radiologist, lowest end of the fibula bone was found fractured in the case of P.W. 1. He very clearly admitted that he did not accept medico legal cases. x 2 cm. on the back of right leg on outer aspect, 14 cm. below the popliteral fossa. According to P.W. 11, Dr. R. N. Chaudhary, radiologist, lowest end of the fibula bone was found fractured in the case of P.W. 1. He very clearly admitted that he did not accept medico legal cases. It is further admitted to him that he had not obtained any thumb impression of the person on the X-ray plate whose X-ray was done by him. X-ray plates are on the record. He had also not noted any mark of identification of this witness. According to him, he had taken the X-ray in an ordinary manner. He was not conversant with the medico legal formalities, therefore, he did not observe them. It is further admitted to him in cross-examination that some other person may have posed himself as Raghvendra Dhar Dwivedi and got X-rayed himself, he would have done his X-ray. He did not know Raghvendra Dhar Dwivedi personally and apparently no one had produced him in that capacity before him. As earlier discussed that after a small fracture in lower end of fibula bone, it shall be impossible for this witness to walk such a long distance, i.e., 4 Kms. He could not move on foot, without feeling the pain and swelling is sure to occur on this injury once anyone shall attempt to cover the above distance, but Dr. R. N. Chaudhary did not state about the presence of any swelling around this injury. It shall be relevant to consider that Dr. P. K. Misra, who examined this witness, had not found any of his injuries including injury No. 1 to have any fracture. He did not advise X-ray for any of his injuries. Dr. R. N. Chaudhary thus falsely reported this injury to be grievous, despite the fact that the injuries were simple. In these circumstances, at least the X-ray plates and the report based on this examination cannot be believed. The circumstances discussed above leave sufficient room to doubt the genuineness of P.W. 1's X-ray plate and consequent report. Further, radiological examination of P.W. 1 was conducted on the 3rd day. Admittedly this witness did not feel any pain in his movement due to this fracture for two days before radiological examination was underwent by him. The circumstances discussed above leave sufficient room to doubt the genuineness of P.W. 1's X-ray plate and consequent report. Further, radiological examination of P.W. 1 was conducted on the 3rd day. Admittedly this witness did not feel any pain in his movement due to this fracture for two days before radiological examination was underwent by him. It clearly shows that the X-ray evidence and the opinion about fracture was ingenious and cannot be given any credence by us. The injury on the eye lid is also difficult to accept. Had it been a Lathi blow injury, some internal damage to the eye itself ought to have been there. It is not found there. There was not even any redness noticed during his medical examination inside. Rest of his injuries are abrasions. All these may have been suffered with friendly hands. Due to the influence of the maternal uncle of the witness, whose presence has been claimed by the defence at the police station though not admitted by this witness in the circumstances is available to us as a fallout from the evidence. We are of the opinion that Dr. K. D. Tripathi must have come to police station after the incident. It is unbelievable that he was not contacted at all. He is very closely related to this witness. He is Sarhoo of his father. The deceased worked for many years as his compounder. We are not prepared to accept the statement of this witness that he went to lodge the first information report all alone. He did not meet any one including Dr. Dubey before going to police. It is also rendered doubtful from evidence of P.W. 2, Ram Charan. He had admitted in paragraph 3 in cross-examination that he was called by Shahdev Dhar Dwivedi to dig the plinth at the relevant plot for the construction of his house from his village. His brother-in-law Dhoolram and Mahadhar were also there. When the incident occurred he was not present at the spot. He came down to the house of Sahdev Dhar Dwivedi in Mohalla Beriahava. Sahdev Dhar Dwivedi was already taken to the hospital. He, however, claimed that he did not know the assailants from before. He had denied that he had seen the incident. When the incident occurred he was not present at the spot. He came down to the house of Sahdev Dhar Dwivedi in Mohalla Beriahava. Sahdev Dhar Dwivedi was already taken to the hospital. He, however, claimed that he did not know the assailants from before. He had denied that he had seen the incident. Thus, from the statement of P.W. 2, Ram Charan, it is apparent that labour had come to the house of Sahdev Dhar Dwivedi probably to claim the fruits of their day's work. They belong to the village of the deceased. By that time. Sahdev Dhar Dwivedi was already sent to hospital. He did not state that any payment to him was made at the plot by Sahdev Dhar. He was declared hostile. In cross-examination, no such questions were put to him by the prosecution to show his collusion with accused. Therefore, the factum of going of this witness, P.W. 1 Raghvendra Dhar Dwivedi to the spot of occurrence along with his father for the payment to labour was also not proved by the prosecution beyond reasonable doubt. This witness in his F.I.R. had stated that after the assault on him, he ran away from the spot but in the evidence, he had stated that he ran away for a distance of 50 steps only and then returned to the spot. This fact of his return to the spot has not been stated to the Investigating Officer also. Thus, he had tried to prove himself a witness for the later part of the version as given out in the F.I.R. that the accused took his father to some unknown destination and the assault on him continued even in this process of removal as well. This is not corroborated by medical examination report of his father. Only three injuries were noted therein. Presence of his own brother-in-law, a medical officer on posting at Shahjahanpur is admitted at the mortuary to this witness at the time of post-mortem examination of the deceased, his father. He was present during his X-ray examination. In our opinion, during post-mortem, number of injuries were swelled under his influence and that of Dr. K. D. Tripathi. 9. Presence of his own brother-in-law, a medical officer on posting at Shahjahanpur is admitted at the mortuary to this witness at the time of post-mortem examination of the deceased, his father. He was present during his X-ray examination. In our opinion, during post-mortem, number of injuries were swelled under his influence and that of Dr. K. D. Tripathi. 9. IN these circumstances, we are not prepared to accept that he had witnessed the assault and taking away of the deceased by the appellants to the police station from where the deceased was sent for his medical examination. He admitted that he did not follow his father at all nor made any effort to buy his freedom when the accused persons were removing him to some unknown destination. He did not know where they were going to take him. He did not call the labour who were present there to save his father from being taken away by the accused persons. This further shows that no labour was present there. He admitted that he had made no attempt to even inform the police on telephone. At a distance of 300 paces from the road, tehsil headquarter was there. Telephone facility was available at this place. Some police picket was likely to be there. It was suggested to him but he denied this fact and said that no policemen were posted in the tehsil. He admitted that he raised no alarm when the accused persons were taking away his father. It is further admitted to this witness that from the spot of occurrence upto his house, several houses of advocates fell in the way but he did not go to any advocate's house to avail any help or inform the advocates that accused persons had taken away his father. He first came to his house and informed his family members and thereafter all alone went to the police station to lodge a report. None of the family members accompanied him. Admittedly his family members came to the hospital where his father was admitted soon afterwards. The deceased reached the district hospital at about 2.45 p.m. By then, he was examined by Dr. G. P. Shukla, He did not know when the labour had gone for digging the plinth. What was the price of the contract? Who was the contractor? Admittedly his family members came to the hospital where his father was admitted soon afterwards. The deceased reached the district hospital at about 2.45 p.m. By then, he was examined by Dr. G. P. Shukla, He did not know when the labour had gone for digging the plinth. What was the price of the contract? Who was the contractor? When the contractor along with labour visited his house, he did not know anything about these facts? According to him by that time, he had already gone to his senior advocate. After attending the Court, he must have gone to the office of his senior and in all likelihood, he was called upon from there. It cannot be ignored in the facts and circumstances of the present case. This further goes to suggest that the injuries of this witness are self-suffered or manufactured. There was no animosity of this witness or his father with the family members of Ashwani Kumar, although he denied the suggestion that no incident occurred and he had not suffered injuries in any such incident. The injuries were all manufactured. We are of the firm opinion that his injuries were either self suffered or suffered through friendly hands or manufactured. It is further fortified from the fact that there is huge discrepancy in the injuries between post-mortem examination report and the first medical examination report. The post-mortem examination was conducted in the presence of his brother-in-law who is also a medical officer posted at Shahjahanpur. If the injuries could be swelled during post-mortem, then his injuries could easily be manufactured. It is further supported by the fact that his medical examination was held 5 hours after the occurrence. He had also not disclosed the name of appellant Prakash Bhar in his F.I.R. He has been shown only as the servant of Ashwani Kumar. It is admitted to this witness that there are other servants also at the house of Ashwani Kumar. How had he identified and nominated later on this appellant is not disclosed by him. He admitted that he did not know any of his servants. IN these circumstances, the testimony of this witness, in our opinion, is not reliable. His presence on the spot is highly doubtful. The probability that the incident may have occurred in some other manner and the assailants may be or may not be these accused cannot be ruled out. He admitted that he did not know any of his servants. IN these circumstances, the testimony of this witness, in our opinion, is not reliable. His presence on the spot is highly doubtful. The probability that the incident may have occurred in some other manner and the assailants may be or may not be these accused cannot be ruled out. The plinth was dug on the plot which bears No. 160 and his plot bears No. 161/1. This clearly shows that plot No. 160 has been partitioned and it has several portions. May be he had encroached upon some one's land and the incident may have taken place on that score. Even the map for his house was not approved by the local municipality. The construction, therefore, was going to be raised without any approval from the local body. He had litigations with several other persons. Admittedly he had also litigation with one Ramesh Chandra Chaudhary, Advocate on the property of his maternal grandmother. Although he denied that his father had procured property in district Basti on the basis of fake sale-deeds. Litigations were going on in respect of such lands is admitted to him. He had admitted that enmity was there but it was not so serious as to cost any one his life. It is also admitted to him that Dr. K. D. Dubey came on 26.12.1980 in the evening and also on 27.12.1980 to the district hospital to see his father. He had denied that Dr. Dubey had visited police station Kotwali and also gave him any letter. 10. ASHWANI Kumar Pandey, appellant's nomination appears to be on account of some litigation between Dr. K. D. Dubey and the ancestors of this appellant. It is also admitted to him that he had gone to the plot for the first time on that date. He had taken some Rs. 250 to Rs. 300 but nothing was found from the possession of the person of the deceased when he was taken to the police station by the accused persons. The report was not prepared at the house but it was prepared at police station Kotwali is also evident from his evidence. He pleaded that he cannot say whether C.O. was present there or not because he did not know him. The report was not prepared at the house but it was prepared at police station Kotwali is also evident from his evidence. He pleaded that he cannot say whether C.O. was present there or not because he did not know him. He did not receive the carbon copy of the report till the date of his deposition in the trial court. He did not make any enquiry about his father even at the police station on his arrival. It is admitted to him that despite the fracture of the fibula bone on the lowest end, he never felt any pain and he could know about the fracture only after the X-ray. This is wholly improbable and unbelievable. We have already dealt with this piece of evidence at length earlier. Thus, we find that his evidence is full of half truth, falsehood, embellishments and improvements which makes it impossible for us to sever any grain from chaff. In the inquest memo, we have noticed that no date of the lodging of the F.I.R. is given and even the weapon with which the assault was made was not disclosed therein. Neither the offence nor the names of the accused were mentioned. There is cutting also in the name of Raghvendra Dhar Dwivedi, P.W. 1, in the inquest memo as the maker of the F.I.R. These facts lead to the irresistible conclusion that at the time of preparation of the inquest memo, no such F.I.R. was in existence. It was prepared, in all probability after the arrival of Dr. K. D. Dubey. His coming to the hospital is admitted to the witness on the date of occurrence. Though he had denied his going to the police station but, in our opinion, Dr. K. D. Dubey must have been instrumental in getting the F.I.R. registered. The constable who brought the dead body had admitted that though papers relating to the dead body were handed over to him on 28.12.1980 but he produced them before the doctor after 12.00 p.m. next day but the accurate time is not in his memory. Admittedly he reached the mortuary at about 12.00 p.m. and when the doctor came to the mortuary, he did not remember. The doctor had mentioned his arrival at 3.00 p.m. He received the post-mortem examination report at about 5.00 p.m. Thus, the F.I.R. also appears to be at least ante-timed if not ante dated. Admittedly he reached the mortuary at about 12.00 p.m. and when the doctor came to the mortuary, he did not remember. The doctor had mentioned his arrival at 3.00 p.m. He received the post-mortem examination report at about 5.00 p.m. Thus, the F.I.R. also appears to be at least ante-timed if not ante dated. 11. SO far as Onkar Nath Shukla, P.W. 12, is concerned, he has proved the injury report prepared by Dr. P. K. Misra, who is now dead. His statement in cross-examination is that this injury report and the entry was not made by Dr. Misra in his presence. He has proved the handwriting of doctor P. K. Misra and not the injuries. His evidence cannot help the prosecution in establishing that the injured was examined by Dr. Misra for these injuries because at that time, he himself was not present. 12. SO far as the Investigating Officer is concerned, his conduct is reprehensible. An important piece of evidence has not been brought on record by him, i.e., the report lodged by one of the appellants under Section 380, I.P.C. against the deceased before the report by Raghvendra Dhar Dwivedi could be lodged. The deceased was taken to the police station in an injured condition. The report certainly was of theft. Its contents ought to have been proved by the prosecution and it at least would have enabled us to have a different look in the case of Raj Kumar Pandey, appellant in Criminal Appeal No. 1771 of 1984 but in the absence of that, we are unable to use its contents in any manner. The prosecution has conducted the case in the most negligent manner. Even the learned Sessions Judge has not put the contents of this report to this appellant nor had cared to see that this report is exhibited on record. The Investigating Officer has admitted that he had seen the X-ray report of Raghvendra Dhar Dwivedi but clearly admitted that he was not referred either by him or by the doctor for any X-ray. He did not find any blood on the spot. He did not record the statement of the labour other than Ram Charan and Phool Ram under Section 161, Cr. P.C. He could not know their names. He could not know even the name of the contractor. He did not find any blood on the spot. He did not record the statement of the labour other than Ram Charan and Phool Ram under Section 161, Cr. P.C. He could not know their names. He could not know even the name of the contractor. He did not exhibit any length and width of the plinth in the site plan. It is admitted to him that Sadar Tehsil is admittedly 1-1-1/2 furlong from the spot of occurrence. He also admitted that armed guards were posted there for the security of the cash. There is no out-post. He had not recorded the statement of Dr. Chaudhary, P.W. 11. He did not even record the statement of radiologist of the district hospital. The injury report does not say that Sahdev Dhar Dwivedi was unconscious when he was medically examined. It is admitted to him that there are many shops at a distance of 40-50 yards from the place of occurrence on the road. By the side of place of occurrence in the North, there was a cattle house. There are one or two houses also. He did not make any attempt to record the statement of any one of them. There is no mention of the fact that none of them could be available to him in the case diary. He had not recorded the statement of the Lekhpal. He had also not recorded the measurement done by the Lekhpal where the plinth was dug. The first parcha of the case diary was submitted to C.O. on 28.12.1980. He denied that 29 was made 28. He admitted that on the parcha of 29.12.1980 date was under the signature of C.O. On other parchas, no date is there. He denied to know Dr. Kamla Dutt Dubey. He also denied that he cooked up a false case under his pressure. He made no entry in the case diary about the search of the witnesses (labour). 13. IN the circumstances discussed above, both these appeals are allowed. The conviction of the appellants for the offences for which they were charged, convicted and sentenced is hereby set aside. They are acquitted of all those charges. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged.