JUDGMENT Arun Kumar Goel, J.—Appellant was found guilty for having committed offence under Section 302 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for life under Section 302 IPC, and also to pay fine of Rs. 5000. In case fine was not paid, he was directed to further undergo simple imprisonment for six months. Appellant filed this appeal from jail. Since he was un-represented, for defending him, Mr. M.S. Guleria, Advocate was appointed as a Legal Aid Counsel. 2. Prosecution case in brief as made out from the record is: That Yash Pal (PW-3) was working as Chowkidar in Income Tax Office at Mandi. Sanjiv Rana (PW-2) was working as clerk in Agriculture Land Development Bank, Mandi. Both of them are related to each other from being the same village. Former is uncle and latter is his nephew. PW-1 Gagnesh Kaushal was running his painter shop at Paddal. On 13.1.2000 deceased Sanjiv Sen friend of this witness had invited him (the witness PW-1) for a party in the house of PW-3 Yash Pal. Sharwan Kumar and Sanjiv Rana besides witness and Rajneesh were sitting in the room of Yashpal. 3. Yashpal and his wife had gone for dinner at Mohalla Paddal. They returned at about 9.30 p.m. Before the return of this couple, all the persons above named had consumed a bottle of liquor. This witness further claim that music was being played on deck at a low pitch. Wife of PW-3 Yash Pal had gone to bed after having returned from the dinner as she was not well. 4. Another salient aspect of this case is that needs to be especially noted here is that PWs 2 and 3 were sharing one room tenement which had the improvised partitioned kitchen in the room itself besides a gallery. 5. On 13.1.2000 around 10.30 p.m. prosecution claims that the appellant knocked at the door of this room. Door was opened by Sharawan. Appellant entered the room and asked as to who had called his name. PW-1 held out that no body had called him and this witness further asked him to leave the room. While having come out of the room, appellant is further alleged to have asked PW-1 to make the deceased understand, otherwise his head will be smashed. Then the appellant is stated to have left the room. PW-1 held out that no body had called him and this witness further asked him to leave the room. While having come out of the room, appellant is further alleged to have asked PW-1 to make the deceased understand, otherwise his head will be smashed. Then the appellant is stated to have left the room. Again PW-1 claims to have bolted the room from inside and then dancing went on. 6. Prosecution claims that around 12/12.30 in the mid night of 13th and 14th January, 2000 deceased Sanjiv Sain came out for urination. The moment he opened the door and- was in process going out, appellant hit him with sharp edged weapon in the area of chest. Deceased returned inside and said that he has been stabbed by the appellant. As per PW-1 an attempt was made by him and others to nab the culprit, but the appellant fled away from the spot. 7. At this juncture, PW-1 claims that he asked Sharwan to press the chest of the deceased to control the bleeding. He brought cotton from nearby house and also gave first aid to the deceased. Then he claims to have rushed for arranging a three wheeler. Finally deceased was taken to Sanjivan Hospital, Mandi by him (PW-1). Sharwan and the others were sent to inform near villagers. Because of non availability of doctor at the private hospital, PW-1 stated that deceased was taken to Zonal Hospital, Mandi. They reached this hospital around 1.20 a.m. Deceased without being admitted was given treatment by the doctor, but he died around 1.30 a.m. 8. In the aforesaid background, PW-1 went to Police Station and lodged the FIR Ex. PW1/A. Thereafter police swung into action. According to PW-13 Inspector Ram Swaroop Sharma, S.H.O. Police Station, Mandi on registration of FIR, he had sent PW-12, ASI Bahadur Singh to the hospital for getting the post mortem conducted on the body of deceased. 9. Needful was done by PWS Dr. R.S: Dhatwalia. Per him, though the deceased had died at about 12.30 a.m. on 14.1.2000 he was brought to the Zoinal Hospital, Mandi at about 10 a.m. on the same day. Deceased was not admitted in the hospital where he died. PW-8 after conducting post mortem, had issued his report Ex. PW8/A. In his opinion death was caused with the knife (churi) Ex. P4, that was shown to him. Deceased was not admitted in the hospital where he died. PW-8 after conducting post mortem, had issued his report Ex. PW8/A. In his opinion death was caused with the knife (churi) Ex. P4, that was shown to him. He had handed over the clothes of the deceased for being dealt with further in accordance with law. Clothes found on the body of the deceased were sealed separately and were handed over by the doctor to the police. 10. After those have been taken into possession by the doctor, they were handed over to the police alongwith Medico Legal Certificate. Those were delivered on 17.1.2000 by-Dr. Dhatwalia (PW-8) to PW-9 LHC Beli Ram as is evident from the statements of police officials. According to PW-9 he deposited all these parcels with Keshav Ram, Additional MHC Police Station Sadar District Mandi. Witness has further stated that parcels so long they remained in his custody were intact. 11. In this case material witnesses are PWs 1 to 3, who claimed to be the persons who had seen the occurrence. Thereafter they claim to have taken the deceased first to the Sanjivan hospital and there being no medical officer available then to Zonal Hospital Mandi, PW-1 has admittedly lodged the FIR. As such the evidence of these three persons and that of the I.O. PW-13 need to be minutely scanned to come to the conclusion whether the prosecution has successfully brought home the guilt against the appellant or not. 12. PW-1 has given the first hand version in the FIR. Per him deceased had gone out for urination. The moment he opened the door Rakesh Kumar attacked the deceased with some weapon in his chest. They immediately made an attempt to catch hold of the appellant, but he fled away. Deceased was brought to the room. Deceased is stated to have said that he should be saved, as he has been stabbed with a knife by the appellant. According to this witness he immediately took the injured in a three wheeler as aforesaid and then he died at Zonal Hospital. Though in his cross-examination he stated that this portion A to A in Ex. PW1/A in FIR was not correct as he did not state so and what he stated in the court is correct. Portion A to A when translated into English reads that "In the meantime Sanjiv Sain came out for urination. Though in his cross-examination he stated that this portion A to A in Ex. PW1/A in FIR was not correct as he did not state so and what he stated in the court is correct. Portion A to A when translated into English reads that "In the meantime Sanjiv Sain came out for urination. The moment he opened the door and came out, Rakesh Kumar attacked him with some weapon in his chest." It is not understood whey he disowned this part of the statement because in court, his version is that "At about 12/12.30 mid night Sanjiv Sain went out from the room to urination. The moment he opened the door and was in the process out, the accused hit him some sharp edged weapon in the area of chest. Sanjiv Sain returned inside and stated that he has been stabbed by the accused." 13. This witness admitted that the blood had spread on the floor of the room although there was no blood outside the room and the gallery He denied the suggestion, that he had not seen the accused stabbing the deceased or he came to know of appellant having stabbed the deceased when the latter stated all this fact after re-entering the room. From his statement blood having spread over the floor of the room is clearly made out. 14. According to PW-2 Sanjiv Rana also, deceased went to urinate outside the room. The moment he opened the door of the room, accused person struck him with some sharp edged weapon in the area of chest, but he escaped. Sanjiv Sain in an injured state was made to lie on the bed when he informed all of them having been given a knife blow by the appellant. Deceased was bleeding profusely from the wound. An attempt was made to control it by wrapping the area of wounded part with dupatta. PW 2 has stated that PW-3 and his wife had gone to the house of Bhupender Pal to dinner. Whereas PW 3 has stated that he had gone to the house of one Pawan. PW-2 has admitted in his cross-examination that the blood was on the floor of the room and near the door. In the statement of this witness, it has also come that neither Sanjiv Sains neighbours, nor police were informed. Whereas PW 3 has stated that he had gone to the house of one Pawan. PW-2 has admitted in his cross-examination that the blood was on the floor of the room and near the door. In the statement of this witness, it has also come that neither Sanjiv Sains neighbours, nor police were informed. Reason given for not doing so was that they were worried about the survival of the deceased. He admitted that house of the deceased was situate at a distance at 40 meters from their quarter, and 10 meters ahead of the house of the deceased was the Police Station. Not only this the deceased was taken via the bus stand, as well as Police Station. Though family members of the deceased and police were not informed but two persons had already gone to inform them who were those, this witness or PW-1 had stated nothing. 15. PW-3 is Yash Pal at whose house this incident had taken place. According to him his wife normally lives at his native place and she was there for the last one and half month prior to this incident. PW-2 was living with him in this quarter. According to him PW-2 had a programme on the fateful day with the deceased, Gagnesh Kaushal PW-1 and his nephew Sanjiv (PW-2) to celebrate Lohri in his quarter. When he left for dinner to the house of Pawan, these persons had not turned up, and Sanjiv PW was then preparing meals. He and his wife returned at about 9.30 p.m. along with Rajnish who was a friend of this witness. Thus deceased, PWs 1, 2 and Sharwan were there at the time of meal. After dinner, they were dancing in the room when the witness and Rajnish also joined them. His wife had gone to sleep as she was unwell. Then he has narrated the incident of appellant having come at about 10.30 p.m. And then later on at about 12/12.30 a.m. midnight deceased went out to urinate and as he opened the room, appellant having attacked to him with a sharp edged weapon on his chest and then ran away from the spot. Deceased was then taken to hospital by arranging a three wheeler. Deceased was then taken to hospital by arranging a three wheeler. Witness and Rajnish went to the house of the deceased to give information and narrated the incident to the elder brother, of Sanjiv Sain whereas other took him to hospital. Rajnish and brother of the deceased reached the hospital at about 1 to 1.30 a.m. There Sanjiv Sain died in the zonal hospital. This witness also admitted in his cross-examination that blood was on the bed sheet as also on the floor of the room, but there was no blood in the gallery. He further admitted in his cross-examination that he did not inform the neighbourhood, police and family members. As according to him they were worreid about the survival of the deceased. 16. In the face of the aforesaid statement of these three eye witnesses, now statement of Investigating Officer also needs to be scanned. According to him, PW-1 at about 2 a.m. on 14.1.2000 came to the Police Station and lodged the FIR Ex. PW1/A. He got it recorded as per version given by the witness who signed the same after its contents were read over to him and he admitted correctness thereof. Witness took over the investigation and sent the ASI PW-12 to go to hospital. While going to the spot, he took with him camera. He took photographs at the spot. He also took into custody blood stained bed sheet Ex. P3 that was lying on the bed. It was taken into possession vide memo Ex. PW4/A and was sealed with seal bearing impression T. After its use, seal was handed over to PW-4 Digvijay Singh. On 14.1.2000 at about 11. a.m. appellant was arrested in the court. While in custody he was interrogated in the presence of Raj Parmar and Param Dev witnesses. While being questioned about the weapon of offence, appellant is stated to have disclosed that he had kept the knife (churi) in the ceiling of his house which was within his knowledge and he could get it recovered. This statement was recorded vide Ex. PW-5/A. Param Dev PW-5 is one of the attesting witness of this statement besides Raj Parmar. Thereafter, Om Parkash and Payar Chand witnesses were associated by him. They all went to the first floor of the house of the appellant. Here appellant is stated to have got recovered the weapon of offence i.e. knife Ex. PW-5/A. Param Dev PW-5 is one of the attesting witness of this statement besides Raj Parmar. Thereafter, Om Parkash and Payar Chand witnesses were associated by him. They all went to the first floor of the house of the appellant. Here appellant is stated to have got recovered the weapon of offence i.e. knife Ex. P4 from the ceiling of his house. Its sketch was prepared being Ex. PW6/A. This was sealed after its recovery with seal N and was taken into possession vide Ex. PW6/ B. Seal impression was taken and it was Ex. PW 13/J. After use seal was handed over to PW-6 Payar Chand. On receipt of the reports from Chemical Examiner Ex. PX and Ex. PY, challan was filed in Court. 17. In his cross-examination salient fact stated by him, which has material bearing in the facts of this case is that there was no blood in the gallery though bed sheet on the cot was found stained with blood. He further stated "there was no blood except on the bed in the room". Ex PW13/A is the spot map prepared by him. When it is seen along with the map prepared to scale i.e. Ex. PW7/A, it is clear that the total area of, the room including kitchen was 2.80 meters x 3.60 meters. It had bed also and in this area. Size of kitchen was 2.80 m. x 1.60 m. The area of the room is left to be 2.80 x 3m. x m. There is one door which opens towards the gallery where the incident had taken place. What is its effect will be dealt with hereinafter. Appellant when examined under Section 313 Cr.P.C. had denied the incident and further stated that he is innocent. Per him, he was not there in Paddal area on the day of incident. As he had gone to the house of Gulshan, DW-1 in the evening in other locality and only returned to Paddal on the next morning. 18. After having gone through the record of this case, and after due consideration of the statements of PWs 1 to 3 and PW-13, in our considered view the judgment impugned in this appeal for reasons to be recorded hereinafter cannot be sustained and appellant needs to be given the benefit of doubt. 19. 18. After having gone through the record of this case, and after due consideration of the statements of PWs 1 to 3 and PW-13, in our considered view the judgment impugned in this appeal for reasons to be recorded hereinafter cannot be sustained and appellant needs to be given the benefit of doubt. 19. It is well known and settled principle of criminal jurisprudence that benefit of doubt wherever available in a case like the present one has to go to the person like the appellant. Simply because he had put up the defence of not being in Paddal area on the day of occurrence and having returned on the next morning, does not in any case either exonerates or discharges the prosecution of its duty to bring home the guilty by leading reliable, cogent and independent evidence in that behalf. Initial burden always remains on the prosecution to prove its case beyond reasonable doubt. Once it is able to establish its case, falsity of the defence like plea of alibi, will be an additional circumstance to hold accused guilty: (i) Admittedly PWs 1 and 3 have categorically stated that blood was there in the room besides the bed sheet Ex. P3. Thus was also taken into possession during investigation by PW-13. Reason being that deceased is stated to have returned to the room from the spot where he was stabbed. During investigation it is the case of the prosecution that weapon of offence Ex. P4 the knife, was got recovered by appellant from the ceiling of floor of his house. Blood was bound to come out of the wound, looking to the vital part of the body where deceased is stated to have been stabbed. On the other, hand PW 13 has stated, that there was no blood found by him at the spot except in the bed in the room. (ii) What happened to the blood that was in the room, PWs 1 to 3 have not said a word in that behalf. It was for prosecution to have explained as to whether the floor of the room had been washed or not, and if so by whom. Sanjiv Kumar, Rajnish and Sharwan and wife of PW-3, were the other persons who were admittedly in the room. These three PWs were given up on 25.9.2000 by the Public Prosecutor "being repetitive and unnecessary". It was for prosecution to have explained as to whether the floor of the room had been washed or not, and if so by whom. Sanjiv Kumar, Rajnish and Sharwan and wife of PW-3, were the other persons who were admittedly in the room. These three PWs were given up on 25.9.2000 by the Public Prosecutor "being repetitive and unnecessary". Possibility of the blood having been washed by the three PWs and by those who were given up including wife of Yashpal PW-3 cannot be completely ruled out. In case incident had taken place in the manner as alleged by the prosecution, it was to be explained by it (the prosecution), where the blood went. (iii) Three given up witnesses were material witnesses. Thus the plea urged on behalf of the appellant forcefully by Mr. Guleria, needs to be upheld though Mr. Pathik, learned Additional Advocate General, stated that PWs 1 and 3 as well as PW 13 had not been cross-examined further on behalf of the appellant on this aspect. This plea cannot be accepted. In fact it was for the I.O. to have looked into this aspect of the case during the course of investigation and explained it in his evidence. (iv) Further according to PW1 he asked Sharwan to press the chest of the deceased with a view to control the bleeding. He brought cotton from nearby house and after giving some first aid, this witness arranged for a three wheeler and then took the deceased to Sanjivan hospital. From whom cotton was brought and what first aid was given, there is not a word said by this witness further. In case he had actually brought the cotton from the nearby, house and what after given first aid as alleged, he would have instantaneously, as well as immediately brought this fact in the FIR. This clearly indicates, that he had given different version in court from the one given before the police. Omission of such material fact in the FIR needs to be seriously viewed. (v) The version of other two PWs also needs to be scanned minutely. This clearly indicates, that he had given different version in court from the one given before the police. Omission of such material fact in the FIR needs to be seriously viewed. (v) The version of other two PWs also needs to be scanned minutely. PW-3 has stated in the cross examination that blood was on the bed sheet and it was also on the floor of the room, whereas PW 2 has stated that deceased was profusely bleeding from the wound and he tried to bring it under control by wrapping the area of wound with a dupatta. Thus after arranging three wheeler deceased was taken to Sanjivan Hospital. Though there is evidence that except Yash Pal PW-3, others had consumed one bottle of liquor. Bottle of glasses were there on the spot, why those were not taken into possession during investigation. Statements of PWs 1 and 2 clearly suggest that they were fully alert. Thus if their version is to be accepted, they did whatever was possible to save the deceased. (vi) According to PW 3, he as well as Rajnish (who was given up), had gone to inform at the residence of the deceased about this incident. And if fact did narrate the occurrence to his elder brother, he has further gone on record to state that Rajnish and brother of the deceased had reached the hospital at about 1.30 a.m. But after sometime, Sanjeev Sain died at the zonal hospital. ASI sent by the I.O. had seen the dead body lying in the hospital. Admittedly, there is nothing on record to suggest that brother of the deceased was ever examined. There is also nothing on record to suggest why the brother of the deceased was not examined. In fact if the facts are truly stated in that behalf of the prosecution, there is no reason why he would not be examined by the prosecution. (vii) Admittedly deceased was taken in a three wheeler by PWs 1 and 2, firstly to Sanjivan Hospital and then to the zonal hospital. During the course of investigation no attempt was also made to examine driver of three wheeler. Similarly no attempt was made to verify the version of PWs 1 and 2 that they took the deceased to Sanjivan Hospital first and then to Zonal Hospital when there was no doctor available. During the course of investigation no attempt was also made to examine driver of three wheeler. Similarly no attempt was made to verify the version of PWs 1 and 2 that they took the deceased to Sanjivan Hospital first and then to Zonal Hospital when there was no doctor available. On the own showing of the prosecution, deceased was treated though was not admitted at the zonal hospital. What was the record of such treatment and who was doctor who had examined the deceased there in is there to evidence is there to that effect. These facts go to the root of the case. As in the absence of any document of treatment, it cannot be said with certainty whether any treatment was given or not and if so what was its nature. 20. Here submission urged by Mr. Guleria assumes significance. According to him, his client is not the perpetrator of the alleged crime attributed to him. According to him, it is the prosecution case as well as the version of its witnesses that the deceased sustained injuries. If he had been actually injured by the appellant as alleged, what happened to the blood that was there on the floor. This was required with certainty to be explained by PWs 1 to 3 and the three given up witnesses. Per Mr. Guleria, after doing to death the deceased, his client has been made the scape goat for the misdeeds/actions of someone else. He even went to the extent of saying that incident had taken place at about 10/10.30 p.m. on the cot itself. And the manner alleged by PWs 1 to 3 and the given up witnesses when they found that the deceased had collapsed, they cooked up the story of shifting the time of incident to around 12/12.30 a.m. to save their skin. In this background in our opinion none examination of the driver assumes significance. 21. Lastly he pointed out that in case Version of the incident had in fact been narrated by PW-3 to the elder brother of the deceased, who had reached the hospital in the ordinary course of things, he was most disinterested and the best person to have narrated the incident. Since nothing of that sort had happened as such prosecution story based on the statements of these three witnesses and other evidence does not inspire confidence at all. Since nothing of that sort had happened as such prosecution story based on the statements of these three witnesses and other evidence does not inspire confidence at all. We are of the view that this submission is not without substance and is thus upheld. 22. On the other hand, learned Additional Advocate General, submitted that the discrepancies pointed out on behalf of the appellant are not of such a character which otherwise either dislodges or disproves the prosecution case against the appellant. According to him the eye witnesses PWs 1 to 3 is natural, and no fault can be found therewith. According to him minor omissions here and there are bound to occur with the passage of time. Because if the statements are identical, then those are criticised being parrot like. Presence of deceased and the appellant at the relevant time and the latter having stabbed the former is clearly proved according to Mr. Pathik. Once these facts were established, coupled with the disclosure statement and recovery of weapon of offence at the instance of the appellant, inferences drawn in this case against the appellant by the trial court holding him (the appellant) need to be upheld. Thus he prayed for confirming the life sencence imposed upon him. 23. We are also aware of the fact that administration of criminal justice cannot be left to the inept handling by the investigating agency. However, we cannot lose sight of the fact that either for inaction or otherwise on the part of an investigator, the appellant cannot be made to suffer as in the present case. Mr. Pathik submitted for doing justice between the parties by referring to Section 172 of the Criminal Procedure Code, the Court should examine this case. He also referred to the statement dated 25.9.2002 made by the Public Prosecutor while giving up three PWs. We are afraid this plea cannot be accepted. Under what circumstances case diaries can be referred to, and by whom is explicity mentioned in the Section itself. None of these circumstances exit in the present case. For ready reference Section 172 of the Code of Criminal Procedure is extracted hereinbelow: "172. We are afraid this plea cannot be accepted. Under what circumstances case diaries can be referred to, and by whom is explicity mentioned in the Section itself. None of these circumstances exit in the present case. For ready reference Section 172 of the Code of Criminal Procedure is extracted hereinbelow: "172. Diary of proceedings in investigation.—(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary; setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be of the Indian Evidence Act, 1872 (1 of 1872) shall apply." 24. After having considered the respective submissions urged on behalf of the parties and for reasons recorded hereinabove, this appeal is allowed and as a consequence of it appellant is acquitted of the charge under Section 302 of the IPC for which he was found guilty by the learned Sessions Judge below in Sessions Trial No. 3 of 2000 vide its judgment dated 27.8.2001. Fine, if deposited be refunded to the appellant. He is ordered to be set at liberty forthwith, unless required in any other case. 25. Before concluding we must place on record the our appreciation to the proper as well as effective assistance rendered by Mr. M.S. Guleria, learned legal aid counsel in this case. -