Judgment Vishnudeo Narayan, J.- This appeal has been directed by the sole appellant named above against the judgment and order dated 5.7.1996 passed in Sessions Trial No. 199 of 1991 by Sri Ram Nath Ram Mahato, 1st Additional Sessions Judge, Dhanbad whereby the appellant was found guilty of the offence punishable under section 304 I.P.C. and he was convicted and sentenced to undergo R.I. for 10 years. 2. The prosecution case has arisen on the basis of the Fardbeyan of informant Sona Manjhi, the injured of this case, who died subsequently in course of the treatment recorded at 1.20 hours in the night between 12/13th of February, 1984 in the house of the informant in village Bansmuri, RS. Tetulmari, District Dhanbad by S.I. Surja Narayan Das of Bansmuri O.R regarding the occurrence which is said to have taken place at 20.00 hours on 12.2.1984 at Village Bansmuri aforesaid. 3. The prosecution case, in brief, is that an altercation took place between the informant and his nephew, the appellant at about 8.00 O'clock in the night on 12.2.1984 in respect of a dispute regarding the land of the house and at that time the informant as well as the appellant were in a drunken state and in course of that altercation the informant had abused him, chid him and slapped him and at this the appellant assaulted him and caused him two bleeding injuries on his back and also injuries on his waist and abdomen by Chhura (dagger). It is alleged that on alarm the Sarpanch of the village and others came at the place of the occurrence. It is also alleged that the appellant has assaulted him with intention to commit his murder. 4. The case was initially instituted against the appellant under sections 307, 326 and 324 of the Indian Penal Code but charge sheet has been submitted under section 302 I.P.C. due to the death of the injured informant in P.M.C.H., Dhanbad. 5. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case out of enmity which is existing and alive. 5. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case out of enmity which is existing and alive. The appellant has taken the alternative defence of exercise of his right of private defence to his life and property in view of the assault on him by the deceased causing grievous injury after criminally trespassing into his house. 6. The prosecution has examined in all six witnesses to substantiate the charge levelled against the appellant. P.W. 1, Rasik Manjhi, P.w. 3, Sumari Manjhian are the son and widow respectively of the deceased of this case. P.w. 2, Dubey Manjhi and P.w. 4 Somar Manjhi have come to the place of occurrence on hearing alarms and P.w. 4 is the nephew of the deceased. P.w.5, Dr. Rai Sudhir Prasad has conducted the post mortem examination on the dead body of the deceased and post mortem report in this case is Ext. 1. P.w. 6, Ashok Kumar is a formal witness, who has proved Fardbeyan (Ext. 2) and formal F.I.R. (Ext. 3). The I.O. has not taken oath in this case for the reasons best known to the prosecution. Ext. A and Ext. S are the certified copies of the forwarding report of the I.O. and certified copy of the injury report regarding the injuries appearing on the person of the appellant respectively brought on the record on behalf of the defence. 7. In view of the oral and documentary evidence on the record the learned court below has found the appellant guilty not for the offence under section 302 I.P.C. but for the offence under section 304 I.P.C. and has convicted him and sentenced him as stated above. 8. Assailing the impugned judgment of the learned court below it has been submitted by the learned counsel for the appellant that there is no ocular witness of the occurrence in question and the testimony of P.Ws. 1, 3, 2 and 4 are not at all worthy of credit as they have no occasion to see the alleged occurrence and there is also no motive for the alleged occurrence and there is also no land dispute between the parties existing and alive at the time of the occurrence. 1, 3, 2 and 4 are not at all worthy of credit as they have no occasion to see the alleged occurrence and there is also no motive for the alleged occurrence and there is also no land dispute between the parties existing and alive at the time of the occurrence. It has also been submitted that Fardbeyan of the deceased informant is itself suspicious and it cannot be said to have been drawn on the statement of the deceased informant, who, as per evidence on the record, was unconscious and there was no question of the I.O. having recorded the Fardbeyan of the deceased informant. It has also been submitted that Fardbeyan (Ext. 2) has not been legally and properly admitted into evidence in the absence of the evidence of the I.O. and the appellant stands seriously prejudiced due to the non-examination of the I.O. in this case as he was debarred from eliciting facts showing his innocence in the cross-examination of the I.O. It has also been contended that no cogent explanation has been brought on the record by the prosecution regarding the injuries appearing on the person of the appellant which makes the manner of the occurrence of the prosecution case as alleged doubtful. It has also been contended that the Chhura, the alleged weapon of assault, though said to have been seized by the I.O. has not been brought on the record. There ought to have been two weapons of assault in view of the evidence of P.w. 5, the doctor that injury no. 3 cannot be said to have been caused by Chhura (dagger), and as such the entire manner of the prosecution case becomes doubtful. Lastly, it has been contended that the deceased informant had criminally trespassed into the house of the appellant and he was assaulted by the deceased of this case causing grievous injuries on his person and in this view of the matter he has the right of private defence in view of the apprehension of eminent danger to his life and property against the appellant and Ext. A & B corroborate this aspect of the defence version. 9. A & B corroborate this aspect of the defence version. 9. The learned A.P.P. has submitted that the deceased was found injured in the house of the appellant and from there the I.O. has brought the deceased to his house where his Fardbeyan was recorded and the deceased informant was throughout conscious and the Fardbeyan is not at all suspicious in this case. It has also been submitted that P.Ws. 1, 2 and 3 are the eye witnesses of the occurrence and the medical evidence on the record fully supports that the informant has died due to injuries sustained on his person caused by appellant and in this view of the matter there is no illegality or any irregularity in the impugned judgment and order and the learned court below has rightly convicted the appellant. 10. P.w. 5, Dr. Rai Sudhir Prasad has conducted the post mortem examination of the deceased and has found the following ante mortem injuries on his person: "(i) Spindle shape incised wound with sharp margins measuring 2" x ½" x cavity deep on back of left side of chest in mid scapular line at the level of nipple. (ii) Spindle shape incised wound with sharp margins measuring 2" x ½" cavity deep on left side wall of abdomen at the level of eleventh rib. (iii) Cut wounds with lacerated margins 1" x 1/3" x muscle deep and ¾" x ¼" skin deep on back of right side of chest 1" away from vertebral column at the level of thorasic tenth vertebra. (iv) Spindle shaped punctured wound with sharp margins measuring 2" x ½" x ½" on upper most level of outer side of right buttock." On dissection the medical witness has found both the lungs of the deceased totally collapsed with one puncture on each lung and no blood was seen in the cavities and the blood must have drained out. The Fardbeyan of the deceased informant was recorded at 1.20 hours in the night between 12/13 of February, 1984 in the house of the deceased informant in the P.O. village Bansmuri. There is no denying the fact that the occurrence of this case is said to have taken place at 20.00 hours on 12.2.1984. The Fardbeyan of the deceased informant was recorded at 1.20 hours in the night between 12/13 of February, 1984 in the house of the deceased informant in the P.O. village Bansmuri. There is no denying the fact that the occurrence of this case is said to have taken place at 20.00 hours on 12.2.1984. It therefore appears that the Fardbeyan of the deceased informant was recorded after five hours twenty minutes by the I.O. P.W 1, the son of the deceased informant, in para 3 of his evidence has disposed that when he has reached the place of occurrence he had found his father conscious. He has also deposed in para 3 of his testimony that his father had never become unconscious till his death. In para 8 of his evidence he has further deposed that his mother (P.W 3) had immediately followed him and came to the place of occurrence. P.W 3 in para 2 of her evidence has deposed that she had found the deceased informant unconscious at the place of occurrence and he had never regained consciousness till his death. P.W 2 has deposed in para 1 of his testimony that he had gone to the place of occurrence and had seen the occurrence and at that time the deceased informant was unconscious. P.W. 4 in para 8 of his evidence, has also deposed that the deceased informant was unconscious at the place of occurrence and he was brought to the hospital in the state of unconsciousness. The evidence of P.W. 1 that his father, the deceased informant, was not unconscious till his death is contradicted by the testimony of P.Ws. 3, 2 and 4. There is evidence on the record to show that the I.O. came to the place of occurrence on information and he has brought the deceased informant from the place of the occurrence to his house. The evidence on the record does not conclusively indicate that at what time the deceased informant was brought to his house from the place of occurrence by the police. The I.O. has not taken oath in this case for the reasons best known to the prosecution. It is the I.O. who has recorded the Fardbeyan of the informant at 1.20 hours i.e., 5 hours 20 minutes after the occurrence. The I.O. has not taken oath in this case for the reasons best known to the prosecution. It is the I.O. who has recorded the Fardbeyan of the informant at 1.20 hours i.e., 5 hours 20 minutes after the occurrence. It is admitted fact that no medical aid was made available to the deceased informant between the period of the occurrence and the alleged recording of his fardbeyan i.e. within 5 hours and 20 minutes of the occurrence in question. In view of the nature of the injuries as found and deposed by P.w. 5, Dr. Rai Sudhir Prasad which is to the effect that both the lungs had one puncture and both the lungs were found collapsed and no blood was seen in the cavities, the deceased informant in all probabilities cannot be said to be conscious after the occurrence for a period of 5 hours 20 minutes. The evidence of P.Ws. 3, and 4 clearly indicates the fact that the deceased informant was unconscious at the place of the occurrence. In such a situation it does not stand to reason that the injured informant was in a position to give his statement to the I.O. for recording his fardbeyan. The non-examination of I.O. in the facts and circumstances of this case has definitely caused serious prejudice to the appellant as he has been debarred from elucidating facts showing his innocence in his cross examination. In view of the discussion above, the fardbeyan of deceased informant, as recorded by the I.O., is definitely suspicious and doubtful and it can never be recorded on the basis of the statement of the deceased informant. The entire prosecution case therefore collapses like a house of cards on this score alone. I, therefore, see substance in the contention of the learned counsel for the appellant that the fardbeyan of this case has not at all been recorded on the statement of the deceased informant and it is a suspicious document. 11. The medical witness has further deposed in para 5 of this testimony that injury nos. (i), (ii) and (iv) were possible by sharp cutting weapon such as dagger but injury no. (iii) was possible by a domestic knife. He has further deposed in para 6 of his evidence that injury no. (iii) had lacerated margins and, therefore, it was not caused by the same weapon which had caused injury nos. (i), (ii) and (iv) were possible by sharp cutting weapon such as dagger but injury no. (iii) was possible by a domestic knife. He has further deposed in para 6 of his evidence that injury no. (iii) had lacerated margins and, therefore, it was not caused by the same weapon which had caused injury nos. (i), (ii) and (iv) and two different weapons were used. According to the prosecution case as averred in the Fardbeyan of the deceased informant and also as deposed by P.Ws. (1), (2) and (3) that weapon of assault is only dagger and there is total absence of any other weapon used in the occurrence in question by the appellant as per the prosecution case. P.w. 1 has deposed in para 3 of his evidence that he along with others had snatched the dagger from the appellant and had handed over the same to the I.O., who has prepared a seizure list in respect thereof. Neither the dagger nor the seizure list has been brought on the record. The I.O. has also not taken oath in this, case causing serious prejudice to the appellant on this score also. To crown all the prosecution is conspicuously silent in explaining as to how injury no. (iii) as deposed by the medical evidence has been caused on the person of the deceased informant. The objective finding of the doctor regarding the use of two weapons of assault in this case causing injury on the deceased informant further casts a cloud of suspicion to the very creditability of the warp and woof of the manner of the prosecution case. 12. According to the prosecution case the deceased informant and the appellant were in a drunken state and due to some land dispute the deceased informant had abused, chid and assaulted the appellant by slaps in the house of the appellant. There is no iota of evidence on the record to give an inkling of fact that there was any land dispute between the parties prior to the occurrence. P.W 1, in para 1 of his evidence, has deposed that the appellant was quarrelling with his wife and the deceased informant was the Pradhan of the village and he had gone there in the house of the appellant to make them understand and not to quarrel and he got the injuries in the said scuffle. P.W 1, in para 1 of his evidence, has deposed that the appellant was quarrelling with his wife and the deceased informant was the Pradhan of the village and he had gone there in the house of the appellant to make them understand and not to quarrel and he got the injuries in the said scuffle. For this the evidence of P.W 1 appearing in para 7 is also referred to P.W 1 in his evidence on oath does not whisper that the deceased informant had assaulted the appellant. However, in para 3 of this evidence he has deposed that when he has reached there he has not found any injury on the person of the appellant. But in the next breath he has deposed that he had seen bleeding injury on the person of the appellant. P.W 3, the widow of the deceased, has deposed in para 1 of her evidence that the wife of the appellant had called the deceased informant to her house. She has also deposed that she has immediately followed the deceased informant, husband. In her evidence on oath she has not whispered the fact of any assault by deceased informant on the person of the appellant. In para 3 of her evidence she has specifically deposed that she has not seen any injury on the person of the appellant. P.Ws. 2 and 4 are also conspicuously silent in their evidence on oath regarding any assault by the deceased informant on the person of the appellant. P.w. 2 has deposed that the appellant was given 2-4 slaps by the people who had assembled at the place of the occurrence. P.Ws. 2 and 4 had deposed not to have seen any injury on the person of the appellant. These witnesses have not also whispered regarding existence of any land dispute between the deceased informant on the one hand and the appellant on the other hand. A new case has been introduced in course of the evidence that the deceased informant had gone to the house of the appellant to pacify the quarrel between the appellant and his wife at the call of the wife of the appellant. A new case has been introduced in course of the evidence that the deceased informant had gone to the house of the appellant to pacify the quarrel between the appellant and his wife at the call of the wife of the appellant. Therefore, the very genesis and motive of the occurrence in question stands shrouded a mystery in the facts and circumstances of this case in the absence of any cogent legal evidence on the record regarding the existence of any land dispute between the parties. Moreover, Ext. B is the requisition dated 13.2.1984 of the I.O. forwarding the injured appellant to the medical officer on duty in C.H.D., Dhanband in which the I.O. has mentioned the following injuries appearing on the person of the appellant 1. One bleeding injury on left above ankle (now bandaged) 2. One bleeding injury on right leg above ankle (now bandaged) 3. Swelling and complain of pain on mouth and bleeding. 4. Swelling and complain of pain on whole body. 5. Swelling and complain of pain on head. The appellant was examined by the doctor, who has found the following injuries on the person of the appellant- (1) Lac. Injury upper lip Rt. Side 05 cm. long. (2) Lac. Injury Rt. Leg 3 cm x 5 cm skin deep. (3) Loose teeth Rt. Upper set (sic). (4) Lac. Injury Lt. leg 3 cm x 5 cm. The injury no. (3) is grievous, rest simple. The age of injuries is within 24 hours. No explanation is forthcoming on the record by the prosecution as to how and under what circumstances the aforesaid lacerated wounds have come into existence on the person of the appellant. In a murder case the non-explanation of the injuries sustained by the appellant at about the time of the occurrence and in course of altercation is a very important circumstance from which it can be inferred that the prosecution has suppressed the genesis and the origin of the occurrence and has, thus, not presented the true version and they are lying on a most material point and, therefore the evidence is unreliable and that in a case where there is a defence version which explains the injuries on the person of the appellant it is rather probable so as to throw the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused appellant assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. Here, the alleged eye witnesses are inter se related and they are the wife, son and nephew of the deceased. They have not whispered regarding the injuries on the appellant and the manner as to how it has been caused. There is defence version that the deceased informant had criminally trespassed into the house of the appellant and he was assaulted by the deceased of this case causing grievous injuries on his person and in this view of the matter the appellant has right of private defence of his person and property due to the apprehension of the eminent danger to his life. Therefore, the defence version in the facts and circumstances of this case appears to be probable. Therefore, the testimony of P.Ws. 1, 2, 3 and 4 and non-explanation of the injuries on the person of the appellant by the prosecution witnesses aforesaid equally shows that the genesis and the manner of the occurrence of the prosecution case are totally false and the testimony of P.Ws. 1 to 4 is unreliable. And to crown all even the place of the occurrence of this case has not been proved in the absence of the evidence of the I.O. which is equally a fatal lacuna of the prosecution case. The learned court below did not meticulously consider the facts, circumstances and materials on the record in this case in proper perspective and has erred in coming to the finding of the guilt of the appellant. It appears that there is no legal evidence on the record to find the appellant guilty beyond reasonable doubts in the facts and circumstances of this case. 13. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned court below is hereby set aside. The appellant is not found guilty of the charge levelled against him and he is acquitted and he is discharged from the liability of his bail bond.