Judgment :- Ramachandran, J. Accused No.1 in Crime No. 476 of 1999 of the Alappuzha North Police Station is the appellant herein. The Additional Sessions Court, Alappuzha in S.C. No.266 of 2001 had convicted and sentenced him to undergo imprisonment for life for offence punishable under section 302 IPC and to undergo Rigorous Imprisonment for two months for the offence under section 447 IPC. The sentences were to run concurrently. Although there were five accused, the second accused stands acquitted. Accused Nos.3 to 5 were found guilty of offence under Section 447 of IPC alone. 2. According to the appellant, the Sessions Court had entered a perverse finding resulting in gross miscarriage of justice. The evidence adduced by the prosecution materially differed from the charge framed. There was only evidence of PW1 and PW2 forthcoming as supporting the case of prosecution, but inconsistencies were numerous. According to him, unknown miscreants have been party to the crime and because of external influence, innocent persons, including him, had been implicated. 3. Prosecution case is that the deceased Sugathan had been subjected to brutal attack in the evening of 21.9.1999 at Mararikulam in Alappuzha District. He was residing with this wife in a rented house and it appears that he had been drawn out by a few persons and while in Varandah of the house he had been initially attacked by beating with stick and when he had fallen down, he had been hit with a spade, on head, resulting in death within hours. The postmortem certificate indicates that the cause of death was the said injury on the head coupled with the beatings on his legs, resulting in compound fractures. 4. It is alleged that the accused persons had formed themselves to an unlawful assembly 21.9.1999 at 7.30 P.M. with a common object to murder Sri. Sugathan. Armed with weapons (sticks), all five of them had committed rioting in and around the house bearing No.12/1052 of Mararikulam Thekku Panchayat. They had criminally trespassed into the compound of the house and had committed the crime of murder of Sugathan. They had cause hurt to PW2 (wife of the deceased) by kicking and beating her and also caused voluntary hurt to PW1 (the son of the deceased) by beating him with sticks brought by them. 5. They had criminally trespassed into the compound of the house and had committed the crime of murder of Sugathan. They had cause hurt to PW2 (wife of the deceased) by kicking and beating her and also caused voluntary hurt to PW1 (the son of the deceased) by beating him with sticks brought by them. 5. Prosecution claims that Sugathan had been removed to the hospital at the instance of the neighbourers, who had rushed in, hearing the cry of his son and wife viz., PW1 and PW2. A First Information Report had thereupon prepared at 10.45 p.m. on the date, duly taking notice of the First Information Statement made at 9.30 p.m. on the night of the incident, given by PW1. It is indicated that the First Information Report had been presented before the Court at 4. p.m. on 22.9.1999. A crime had been registered as 476/99 under sections 143, 147, 148, 302, 324 and 447 read with section 149 of the Indian Penal Code. 6. Accident Register-Cum-Wound Certificate, issued by the Assistant Surgeon, Medical College Hospital, Alappuzha dated 21.9.1999 certifying the injuries on the person of Geetha (PW2-wife of the deceased) has been made available as Ext.P19, so as to show that she to had been subjected by PW1-Sunil (son of the deceased) had been produced at any time. Excepting the Postmortem Certificate (Ext.P18), the prosecution had not made available the details of the entry made in the Accident Register-cum-Wound Certificate of Medical College Hospital, Alappuzha in respect of Sugathan, though it has come out that he had been taken to the hospital after he sustained injuries on the said date and had been admitted to the operation theatre after a brief stay in the Casualty Department. 7. Reliance had been placed by the prosecution on the sworn testimony of PW1 and PW2. As a matter of fact, though almost 31 witnesses had been examined by the prosecution, excepting the departmental officers, practically no others had supported the story of prosecution and most of them had turned hostile. The prosecution had as well rested their case on a possible motive the accused persons might have had to deal with deceased, in their own way. The version was that in connection with an alleged molestation of PW2 by one Cherian, who was the father of the first accused (Roshan), a few days back they had engaged in a scuffle. The prosecution had as well rested their case on a possible motive the accused persons might have had to deal with deceased, in their own way. The version was that in connection with an alleged molestation of PW2 by one Cherian, who was the father of the first accused (Roshan), a few days back they had engaged in a scuffle. The claim was that on 15-09-1999, Sri. Cherian had visited the house of the deceased in the evening. PW1 was an employee of Cherian, who had a business of coir mat making. After reaching the house, although the deceased was not there at that time, he had engaged himself in a talk with PW2 Geetha, mixed with sexual over tones and had received a rebuff from her. On the arrival of the husband, Cherian had went away from the house. But later at nightfall, when opportunity came in hand, Cherian had molested PW2 and she had run away to her husband. Coming to know of this, Sugathan had engaged Cherian in a fight. Bystanders separated them. Cherian after receiving the beating harboured an ill-will and had actually thrown out a threat. As a result, A-1, the son of Cherian, had come along with his companions to settle the score, which ultimately had ended in the death of deceased Sugathan. 8. We had scanned through the evidence that had been let in, especially the oral evidence. Ext.P18 postmortem report indicates that deceased Sugathan had succumbed to the injuries sustained by him on 21-9-1999, but the question is whether the prosecution has been successful to establish the guilt as against A1. 9. PW-1 and PW-2 are occurrence witnesses. PW-3 Hari Kumar (Ani) had helped Sugathan to reach the hospital, but he has retracted from his earlier statement, implicating the accused while he was in the box. Also there is no suggestion that he was a witness to the occurrence. PW-4 Radhamony and PW-5 Dinesh had reached the spot first, but have turned hostile. But they speak about the power cut during the time. No help forthcomes from the evidence of PW-6 Denis, who also had reached the scene of the assault, immediately after the incident. PW-7 Simpochan and PW-8 Lyju have been examined so as to trace the identity of the assailants, but they had been declared as hostile and have become unhelpful. But they speak about the power cut during the time. No help forthcomes from the evidence of PW-6 Denis, who also had reached the scene of the assault, immediately after the incident. PW-7 Simpochan and PW-8 Lyju have been examined so as to trace the identity of the assailants, but they had been declared as hostile and have become unhelpful. PW-9 has been given up, after the chief examination, as nothing worthwhile was forthcoming from the witness. That is the case with regard to PW-10 Prasad as well. 10. PW-11, Sidhardhan had taken the deceased by a taxi to the hospital. Prosecution had invited him to speak in consonance with his statement to police, but he had declined and he has been declared hostile. Even otherwise, nobody has a case that he had seen any of he activities there. PW-12, Mini, wife of Rajeev had been given up by the prosecution when she came to the court, on 31-8-2002. It is seen that she had attended the Court, on 2-9-2002 as PW-18 and had again been given up. If a witness is not at all examined, it is not known as to why she is assigned such a status, and that to repeatedly. There has been a procedural lapse as far as recording the status to such person. 11. PW-13 Chandran, an autorickshaw driver, was expected to speak about the assailants in the vicinity, but he has been declared hostile. PW-14 Antappan (Kuttan) also did not support the version of Prosecution to throw light into the alleged motive and he is declared hostile. PW-15 Vijayan is examined as a witness to the Ext.P10 inquest. PW-16 Manmadhan Nair is a mahazar witness, and by sating that there was no power supply in the area at the alleged time of occurrence, has made a hole in the prosecution case. PW-17 Babu and PW-19 Vijayakumar have turned hostile, and their evidences are inconsequential. PWs-20, 21, 22 and 23 are mahazar witnesses, but have not in their evidence, supported the case of the prosecution. PW-24 S. Panicker is a mahazar witness, but his testimony is unhelpful to further the charges as against the accused. 12. PW-25 is Dr. Sakaria Thomas, who had proved Ext.P18 postmortem certificate. The cause of death is adequately substantiated thereby. Dr. Vishnukumar, Lecturer in Surgery of the Medical college Hospital, Alappuzha is PW-26. PW-24 S. Panicker is a mahazar witness, but his testimony is unhelpful to further the charges as against the accused. 12. PW-25 is Dr. Sakaria Thomas, who had proved Ext.P18 postmortem certificate. The cause of death is adequately substantiated thereby. Dr. Vishnukumar, Lecturer in Surgery of the Medical college Hospital, Alappuzha is PW-26. His version that PW-2 had been brought to the hospital for examination at 11 p.m. on 21-9-1999, and that she was accepted as an out-patient alone, would be material. When we examine the credibility of the case of the prosecution, we may deal with the above in detail, with reference to Ext.P19 certificate produced by him. 13. PW-27 Sivanandan had prepared the Scene Mahazar. It is not known as to what was the objective in examining PW-28, Sreedevi, who was the owner of the building, rented out to deceased Sugathan. PW-29 had been declared as hostile, about recovery of apparels. 14. Mr. Xavier Sebastian, PW-30 was the Sub Inspector of police who prepared Ext.P21 FIR, and he had also recorded Ext.P1, FIS. The defence has attacked his version, and claims, that the records prepared and proved were manipulated. But, the said contentions could be dealt with on a later stage. B.S. Unnithan, examined as PW-31 was the Circle Inspector of Police, who had taken over the investigation, and had spoken to the statements recorded by him, and recoveries made. He had withstood the cross examination, but the Police had no sufficient explanation as to the delay in submission of the F.I.R. to the Magistrate Court, which was rather surprising. The defence had examined DW-1, a Police Officer, to speak about his part in respect of investigation of another offence, which resulted in S.C. No.222 of 1999 of the Sessions Court. The attempt was to establish that the accused were being falsely implicated for pressurizing them in the matter of tendering evidence in the above proceedings. 15. As could be seen from the stand of the defence, they alleged that it was a case where they had been implicated in false case at the instance of political parties. The attempt was to establish that the accused were being falsely implicated for pressurizing them in the matter of tendering evidence in the above proceedings. 15. As could be seen from the stand of the defence, they alleged that it was a case where they had been implicated in false case at the instance of political parties. A criminal case has been pending during the above period, wherein one of the accused and Cherian referred to earlier had been witnesses and it was at the ingenuity of a political party that coming to know of the incident of attack and death of Sugathan, the investigation had been side tracked and authorities had been forced to implicate the son of Cherian and other accused persons conveniently utilizing the opportunity. Thus, the case is that even though Sri. Sugathan had met with an unfortunate death, accused person had not involved in it and the prosecution witnesses were so tutored so as to speak falsehood, because of political pressure. 16. It is evident that the matter has been considered in detail by the learned Sessions Judge. The court had formulated 10 points and had answered them in an effort to assess the situation of the involvement of the accuse. The court had held that the evidence of the material witnesses (PWs.1 and 2) were silent about the involvement and participation of the second accused in the crime. The Court had, therefore, held that one of the most essential ingredients, viz., the participation of 5 of more persons was conspicuously absent and therefore the charge with reference to formation of the unlawful assembly under section 143 and rioting under section 148 of the Indian Penal Code could not have been sustainable. But, nevertheless, the Court had held that the first accused was answerable to a crime under section 302. 17. As referred to earlier, full reliance had been placed by the Sessions Judge on the testimony of PWs.1 and 2. We may closely examine his version. According to PW1, on the evening concerned, at about 7.30 P.M. he was lying in his room, while his parents were having their dinner. Hearing the barking of the dog, father had gone out, closely followed by himself and mother and they had seen A1, A3, A4 and A5 standing there. We may closely examine his version. According to PW1, on the evening concerned, at about 7.30 P.M. he was lying in his room, while his parents were having their dinner. Hearing the barking of the dog, father had gone out, closely followed by himself and mother and they had seen A1, A3, A4 and A5 standing there. They required the deceased to come out for settling an issue and when the deceased reached the Varandah, A1 had hit him behind his back. As a consequence, he had fell down. Promptly, A1 had taken a spade, which was there in the vicinity and had struck the deceased on the head. On the second strike, the handle of the spade had broken and using the broken piece, the deceased was hit on the leg which resulted in the fractures. 18. He stated that A3 and A4 had prevented himself and mother from going near Sugathan and A4 had hit his mother. The third accused had hit him and they saw to it that he did not get to his father. Both of them had thereafter run to the nearby house of one Rajeev, but on coming to know that Rajeev was not there, had returned. At that time A1, A3, A4 and A5 were seen leaving. They had cried aloud, and neighbourers had come and after arranging for a car the deceased was taken to the hospital. When he was about to go along with them, he had been directed to remain at the spot, as mother was disabled, and had to be looked after. 19. His further case was that he had taken PW2 to the neighbour’s house and thereafter he had gone to his mother’s residence at Poomkavu and went over to the Medical College Hospital in a bicycle. There he had been told that his father had been admitted in the operation theatre. He had thereupon returned in the car to the mother. By that time, somebody has taken the mother to the hospital and he had thereupon went away to his mother’s house at Poomkavu. He knew about the father’s death from the conversation of persons, who came to his mother’s house at Poomkavu and at about 9.30 p.m. Police had come and recorded his version; he identified Ex.P1. 20. He refers to the incident on 15.9.1999, when Cherian had misbehaved with his mother. He knew about the father’s death from the conversation of persons, who came to his mother’s house at Poomkavu and at about 9.30 p.m. Police had come and recorded his version; he identified Ex.P1. 20. He refers to the incident on 15.9.1999, when Cherian had misbehaved with his mother. He had heard about the ensuing quarrel and had stopped going for work for Cherian. According to him, this was the reason for A1 and his friends for attacking them and he had seen the incident in the electric light which was burning in the premises. He had identified the arms used. 21. A suggestion had been there, at the time of cross examination, as to whether this father was involved in other criminal cases and whether he had come away from Kayamkulam to Alappuzha in view of the above. He was unaware of any of such details, and it was years back that they had come away from Kayamkulam. According to him, though power cut was between 7.30 p.m. and 8.00p.m. on during the days. However, he admits that when he had went to Rajeev’s residence, there was no power supply and light came after about 5 minutes. He stated that when he had given a statement, there was no bodily examination made as about his injuries. The duration of the incidents took about half an hour. He had went to the Medical College Hospital in about 15 minutes of his father being taken there and he had gone to Casualty Department. By 8.45 p.m., he had left for his home, but by that time, his mother had been taken to hospital. 22. The suggestion in the cross examination was that he was not available at the scene at all. PW1 had been confronted with the discrepancies as available from the First Information Statement and certain other factual details. The most important was about his claim in Ext.P1 statement that he had attempted to prevent the use of spade from the very inception. But, totally differing from the version in Ext.P1, he had another story when he was cross-examined. 23. PW2 (the wife of the deceased) had stated that the incident had taken place on the date alleged, in her presence. When the dog started barking, she had come out along with husband and son. Accused No.5 had suggested to her husband that he had something to discuss. 23. PW2 (the wife of the deceased) had stated that the incident had taken place on the date alleged, in her presence. When the dog started barking, she had come out along with husband and son. Accused No.5 had suggested to her husband that he had something to discuss. It was at that time he was hit by the first accused and the subsequent injuries had been inflicted on him. The third accused had hit and kicked her and since they were prevented from aiding the deceased, herself and son had ran to the house of Rajeev. As they came back, she saw four of the accused departing still holding the sticks with them. The husband was lying on the floor bleeding. She had cried out and neighbours who came had taken him to the hospital. She was taken to the neighbour’s residence. She was thereafter taken to the hospital and on enquiries she came to know that the husband was in the operation theatre. She was discharged on the following day by 8 A.M. After coming home, she heard that her husband had passed away. She had also referred to the molestation attempted by Cherian and there was a fight between her husband and Cherian. There was threat from Cherian on that score, and possibly because of this incident, the first accused had come to attack him along with his friends. She had identified the sticks as also the spade. 24. In the cross examination, she had referred to certain criminal cases in which the deceased was an accused and she had also admitted that her husband used to participate in scuffles. She denied the suggestion that they had shifted their residence from Kayamkulam to Alappuzha afraid of retaliation. She did not know A3 to A5, nor their names and were seeing them for the first time. She had also not seen A1 before the incident. She refers to the presence of four persons; she does not remember about the blows and the origin thereof. She did not remember as to whether there was power cut during the period in question. She state that she belonged to a CITU led union. According to her, she had been examined by the doctor at 9 a.m. and from the spot of the incident she had been taken to the hospital by the police. She did not remember as to whether there was power cut during the period in question. She state that she belonged to a CITU led union. According to her, she had been examined by the doctor at 9 a.m. and from the spot of the incident she had been taken to the hospital by the police. A suggestion was put to her that she did not know about the identity of persons who had attacked her husband and the case was taken up at the instance of leaders of the Marxist Party. Her answer was that she did not know about it. Further, in cross with permission, she had stated that after crime No.476/99 had been registered, she had compromised the case with Cherian, for personal reasons. 25. The defence had pointed out the discrepancies that were there in the material documents. One of the circumstances pointed out was with reference to Ext.P19. The doctor had entered the date and hour of examination of PW2 as 11 p.m. on 21.9.1999. Column No.8 had been kept unfilled where the Medical Officer was expected to record as to the details of persons who had brought the patient and the date and number of the requisition brought. The other discrepancy was with reference to the history and the alleged cause of injury. There is overwriting and correction. The counsel points out that the initial entry was that three persons had attacked her, but it has been corrected by overwriting as five, in figures. As regards entry No.15, it is clearly written that the admission is as O.P. (Out Patient). The injury was contusion on the right thigh. 26. PW30—Xavier Sebasitan, Sub Inspector of Police was very definite that it was not the police, who had led PW2 from the residence. There indeed is delay in bringing her to the Medical college Hospital after she left her house. The distance is about 6 k.ms., and the time taken is three hours. Suggestion was that a statement had been recorded from her, but so as to tally with later version, it had been suppressed. Of course, this had been denied. He admits that the first Information Report had been submitted to the Court at 4 p.m. on the following day directly, but there was no specific reason pointed out for the delay. 27. Mr. Of course, this had been denied. He admits that the first Information Report had been submitted to the Court at 4 p.m. on the following day directly, but there was no specific reason pointed out for the delay. 27. Mr. Vijaya Bhanu, counsel for the appellant, submits that the discrepancies as above were substantial, and had been highlighted before the Sessions Judge. But it had been observed by him that they are minor discrepancies and do not seriously affect the case of the prosecution. Especially, it has been held that the knowledge of the time of death of the deceased person, as claimed by PW1 was not improbable. Likewise, the correction in Ext.P19 from 3 to 5 also, according to the Sessions Judge, is inconsequential in view of the testimony of the doctor. He was also not prepared to accept the plea that it was highly improbable for PW31, the police officer, who have prepared Ext.P10 with precision as at that time PW1 was not fully aware of the finer details. Likewise, the contradiction as between the statement of PW2 and PWs 30 and 31 (police officers) about the manner in which PW2 had been taken to the hospital also has been ignored by the Sessions Judge pointing out that he did not find any reason to disbelieve them. According to him, in the given circumstances, non-recording of a statement from PW2 relating to the crime was irrelevant. In respect of the delay, that had been admitted in presentation of the FIR to the Magistrate, after adverting to a decision of the Supreme Court, it had been observed that it did not appear to be fatal. The counsel for defence submits that such an approach was perverse, as the prosecution was expected to prove the case beyond any reasonable doubt. 28. The non-recording of the injury on the body of PW1 has been described by the Court, as inconsequential. The counsel submits that this lapse should have been considered as serious. According to the Sessions Judge, the time element spoken to need be only approximate, since no one is expected to look into the clock for finding out the exact time in an incident like this and slight difference is therefore possible. In the matter of power cut also, he submits that the Judge had accepted the version of the prosecution that sufficient light was available at the scene. In the matter of power cut also, he submits that the Judge had accepted the version of the prosecution that sufficient light was available at the scene. The reasoning is that “in response to the barking of the dog the deceased came out for the purpose of identifying the presence of others at that time at his compound. If there was no light, he could not have seen others and in that circumstance, he ought not have come out.” These, the counsel submits have influenced the findings.” 29. The Sessions Court had held that the version of “PW1 and PW2 could be believed with respect to the motive alleged and the wife’s evidence proves the motive. Even otherwise, since there is direct evidence, the motive is irrelevant.” In paragraph 33 of the judgment, the Sessions Court has held that the version of PW2 that she had been admitted in the hospital and discharged on the next day is consistent with medical evidence. 30. Thus, in all essential points, overruling the contentions of the defence, the Sessions Court had held that the prosecution has been successful in establishing the case. Therefore, it had been held that the first accused committed the offence of murder punishable under section 302 of the Indian Penal Code and accused Nos.1 and 3 to 5 committed the office of criminal trespass punishable under section 447 of the Indian Penal Code. Mr. Vijaya Bhanu submits that the verdict as above is bereft of reason, and is on the boarder lines of arbitrariness. 31. We had opportunity to hear Sri. Sajith Mathew, Public Prosecutor on behalf of the State, who had supported the judgment, and controverted the contentions raised by the appellant. 32. We feel that there indeed is merit in the criticism made by the appellant. It is difficult to subscribe to the view of the learned Sessions’ Judge that the charges as against Ext.P1 has been proved to the hilt. From the point of recording the First Information Statement itself, the discrepancies glared compelling one to doubt the prosecution case. In specific terms, it is claimed that the statement was given by PW1, while he was in the mother’s house at Poomkavu on 21-09-1999. Evidence of PW30 is crucial in this respect. The crime was registered on the basis of the above statement (Ext.P21). In specific terms, it is claimed that the statement was given by PW1, while he was in the mother’s house at Poomkavu on 21-09-1999. Evidence of PW30 is crucial in this respect. The crime was registered on the basis of the above statement (Ext.P21). According to the Sub Inspector of Police, he had received a telephonic message, the origin of which was not known to him. He had gone to the hospital and had attempted to speak with the person who suffered the injury, but it was not successful. He states, he had reached the hospital by 8 p.m. and the injured was lying on a stretcher of the Casualty. Persons present there could not enlighten him. Thereafter, he had reached the place of incident at 9 p.m. and to his knowledge nobody had reached the spot before him. Hearing that PW1 and PW2 had left, he had gone over where they were to be expected. PW2 was not there, according to him. He is categoric that he had never met PW2; nor had taken her to the hospital. 33. Now, we may examine the versions of the witness with reference to the documents, which are available. According to PW1, he had left the hospital at 8.45 p.m. and reached his home and finding that mother had been taken away by the police in their jeep, he had gone over to mother’s residence. While there, a statement was recorded at 9.30 from him by police. There is not of much distance as between the house and the hospital. Mother has been taken by the police before his arrival, that is, before 9 p.m. But, Ext.P19 indicates that she was examined by the doctor only at 11 p.m. According to PW2, she was taken in a police jeep to the hospital. However, the gap period of two hours has not been explained. We have to believe her that she was taken to hospital by the police. We have no reason to doubt the version and nobody has come up with a claim that any other person had taken her to the hospital. It is beyond explanation, but as to why the police had not recorded a statement from her, being an eye witness. She has been produced before the Doctor only at 11 a.m., i.e., after two hours. It is beyond explanation, but as to why the police had not recorded a statement from her, being an eye witness. She has been produced before the Doctor only at 11 a.m., i.e., after two hours. PW30 and PW31 denied that PW2 had been taken to the hospital at their instance. But, we have to go by the version of PW2, when she is categoric that the police had taken her to the hospital. In spite of procedural requirement, there is no entry in Ext.P19 (Accident Register-cum-Wound Certificate) about the person, who had brought her to the hospital. Perforce of circumstance, we have to assume that she was in the custody of police for almost two hours and the defence may be justified in alleging that a statement had been given by her, where the details of the actual aggressions might have been named. This circumstance has to be read along with the version of PW1, that he had come back from the hospital by 8.45 p.m. and had disclosed about the details to the police and about the death at 9.30 p.m. PW30 is definite that he had gone to the hospital, and at that time the deceased had not passed away and he was in the casualty. Even the evidence of PW11 is that the deceased was admitted in the operation theatre at about 8.45 p.m. Therefore, it is highly improbable that at 9.30 p.m. when the version of PW1 about the death was recorded, he had no source of knowledge. In any case, he had no occasion to know about it at that time. Therefore, the time shown in Ext.P1 is unreliable. 34. We have also to take notice of the serious circumstance that the prosecution had not produced any documents or certificates pertaining to the deceased any documents or certificates pertaining to the deceased excepting the post-mortem certificate. The certificates would have shown the situation of the patient and also the condition in which he had been admitted and the treatment that had been administered, including those given to him in the operation theatre. Even the time of death of the deceased is not available. It could be assumed therefore that the First Information Statement purported to have been given at 9.30 p.m. was premature when he stated that the deceased had passed away. Even the time of death of the deceased is not available. It could be assumed therefore that the First Information Statement purported to have been given at 9.30 p.m. was premature when he stated that the deceased had passed away. Alternatively, the statement might have been given later only, The F.I.R. on its basis also might not have been recorded at the time shown therein. 35. The further circumstance relating to delay of submission of FIR, which is not explained, also contributes to the contention of the defence that there might have been a possibility of foul-play. The first Information Report had been forwarded to the Court only late in the evening of the following day, and there is no explanation forthcoming at all. Thus, there was occasion for the police to change the versions, and even the authorship of the statements, at leisure. The documents cannot therefore be accepted as authentic and worthy of credence. It is also difficult to concur with the learned Sessions Judge that PW-2 might have been discharged only on the following day, when records were otherwise. It has to be presumed that she had gone back from the hospital after her examination. Thus the credibility of the prosecution story is at stake. 36. Sro. P. Vijaya Bhanu had referred to the two recent decisions of the Supreme Court in Bijoy Singh v. State of Bihar [AIR 2002 SC 1949] and Rajeevan and another v. State of Kerala [2003 (3) SCC 355]. The Court had indicated that the delay in submission of FIR at least in some cases may fatally affect the case of the prosecution. This appears to be one such instance. It is meaningful that there was some attempt for fortifying the prosecution case. A criminal case of molestation against the person of PW2, which was to be projected as a motive at the hands of the father of A1, though allegedly happened on 15-09-1999, has been registered only after registration of Crime No.476/11 (the present case). The said case has been compromised later between the parties. Even though normally it could have been presumed that close relatives would be interested in getting a conviction of the real culprits, because of the conduct attributed to PW2, acceptance of such presumption might not be desirable. The said case has been compromised later between the parties. Even though normally it could have been presumed that close relatives would be interested in getting a conviction of the real culprits, because of the conduct attributed to PW2, acceptance of such presumption might not be desirable. She has chosen not to proceed against the person who had molested her, especially when, according to the prosecution, it alone had resulted in the follow up assault leading to murder. 37. Appellant had pointed out yet another flaw in the version of PW-1, to show that he had no consistent case about his movements on the date of the incident, and thus leads to an inference that he was not actually present when the incident took place. In the F.I. Statement he had stated as following:- The case is that attempted interception was after the attack with the spade. But, when cross-examined, he states:- 38. The contradiction pointed out had not been explained. This also appears to be a circumstance to show that his claims of being present at the place at the relevant time was not substantiated. 39. We are also constrained to observe that the prosecution has supplied ammunition to the arsenal of the defence though by omission, in the following regions:- 1. The incident was after nightfall, and the relevance of sufficient light for identification of assailants was essential. Especially when PW-4 and PW-16 had referred to power cut, the failure to bring in authentic evidence on this point has not been explained, which went into the root of the matter. 2. When version of PW-2 was that she had been removed in a police jeep from the place of incident, and as she was the first eye witness to the incident, whom the police had been able to get in touch with. Failure in obtaining FIS from her is not explained, and if her evidence is to be disbelieved, it is at the risk of the prosecution. The prosecution has not attempted to throw light as to any other person, who had taken her to hospital. 3. PW-1 has claimed that he had reached his house from the hospital, back, after spending ten minutes in the hospital, between 8.30 and 8.45 p.m. and by the time he reached home, his mother had been taken away to hospital. The prosecution has not attempted to throw light as to any other person, who had taken her to hospital. 3. PW-1 has claimed that he had reached his house from the hospital, back, after spending ten minutes in the hospital, between 8.30 and 8.45 p.m. and by the time he reached home, his mother had been taken away to hospital. The hospital records indicate that she met the duty doctor at 11 p.m. The inordinate delay is not explained, thus giving room to the suggestion that possibly the first statement giving a truer version has been suppressed. 4. There is vaccum of evidence as regards the time of admission of deceased in the hospital, his condition, and nature of treatment he had received, and the time of death, which was crucial. The certificates available with hospital have not been attempted to be produced. 5. The prosecution has failed to explain as to why injury sustained by PW-1 had not been recorded, when F.I. statement was taken from him, though he speaks about assault made on him, even in the statement, thus leading to erosion of credibility to the statement. 6. There is no corroborating evidence to show that PW-1 had visited his mother’s house on cycle on his way to the hospital, as it could have effectively countered the defence version that he was not present at the time of the incident. This would have brought in substantial credibility. 40. PW-18 (wife of Rajeev) who could have thrown light to the above circumstance had been given up, even though she had twice attended the court for giving evidence. 41. The yawning gaps show that the prosecution had not taken even rudimentary effort for proving the case as against the accused in any certain terms. This naturally has to go to the advantage of the defence. 42. The involvement of politics and political motivation also has been introduced by the defence which may lead to circumstance where third parties had an axe to grind. However, we are not going to such details. Essentially we are satisfied that there has been basic irregularities in the recording of the FIS, preparation of the FIR and forwarding of the same to the Court. It had suffered vulnerability for being subjected to modifications so as to suit the situation of interested third persons. The evidence on record is insufficient to prove the charges. Essentially we are satisfied that there has been basic irregularities in the recording of the FIS, preparation of the FIR and forwarding of the same to the Court. It had suffered vulnerability for being subjected to modifications so as to suit the situation of interested third persons. The evidence on record is insufficient to prove the charges. Consequently, we are of the view that the accused is entitled to benefit of doubt and therefore becomes entitled to an acquittal. The appeal stands allowed. The bail bonds are cancelled. The accused is to be released forthwith from custody, if not required in connection with any other proceedings.