Judgment ( 1. ) THE three appellants, above-named, assail the judgment dated 26-11-1996 passed by the learned Eighth Additional Sessions Judge, Jabalpur, in S. T. No. 838/92 by which the appellant Nos. 1 and 2 have been convicted for offence punishable under Section 302 read with Section 34 of the IPC while appellant No. 3, under Section 302 thereof and, each has been sentenced to imprisonment for life and fine of Rs. 5000/ -. In default of payment of fine, they have been directed to suffer further rigorous imprisonment for one year. ( 2. ) THE case relates to an incident in which deceased Dalthamman Singh, husband of acquitted accused Bimla Singh, was murdered on account of his wifes illegitimate intimacy with accused Raju @ Govind @ Satish s/o Mulayam Rajak, who was living in the house across. The prosecution alleged that the said co- accused, wife of the deceased, had eloped with the appellant No. 3 Raju on 2-3 occasions and had spent few days outside despite strong objection and reprimand from her husband Dalthamman Singh. Even though when deceased tried to restrain the accused from visiting his wife, both of them pursued the affair without paying any heed to his warning. It was in this background that in the night of 11th - 12th of March, 1992 while deceased Dalthamman Singh had gone out of his house to pass urine, the three appellants, in furtherance of their common intention, entered the house of the deceased and appellant Chotak and Harish caught hold of him while appellant Raju dealt several blows with a knife. On account of the alarm raised by the deceased, Sangeeta Singh (P. W. 13), daughter of the deceased, Sher Bahadur (P. W. 14), son of the deceased and Mamta (P. W. 6), daughter of the deceased arrived and saw the accused stabbing the deceased. They also cried and persons from the neighbourhood rushed to the place of the incident. A report of the incident (Ex. P-13) was lodged at the Police Station by Sangeeta Singh (P. W. 13), on the basis whereof, "merg" was registered and inquest (Ex. P-4) was prepared. The dead body was forwarded to the Medical College for post-mortem where the autopsy was performed by Dr. D. K. Sakle, who gave report (Ex. P-1 ). A report of the incident (Ex. P-13) was lodged at the Police Station by Sangeeta Singh (P. W. 13), on the basis whereof, "merg" was registered and inquest (Ex. P-4) was prepared. The dead body was forwarded to the Medical College for post-mortem where the autopsy was performed by Dr. D. K. Sakle, who gave report (Ex. P-1 ). In further investigation, the samples of blood stained and control earth were obtained and a black cap lying on the spot was seized. Accused were arrested and from their possession weapons were seized. The clothes of the accused were also seized and the seized articles were sent to the Forensic Science Laboratory. After completion of the investigation, the accused were prosecuted. ( 3. ) THE accused denied having committed any offence and pleaded that they were innocent. The learned Additional Sessions Judge, however, found them guilty and convicted and sentenced them as hereinabove stated. It is against this conviction and sentence that the appellants have appealed to this Court. ( 4. ) WE have heard learned Counsel for the parties and perused the records. ( 5. ) LEARNED Counsel for the appellants, Shri Sakle, has submitted that the entire case of the prosecution is replete with improbabilities and contradictions and the evidence of the witnesses is contradicted by the documentary evidence and it is difficult to reconcile the evidence of the prosecution collected during investigation with the evidence adduced in the Court. His submission is that initially although the FIR (Ex. P-40) was lodged by Mamta Singh (P. W. 6), daughter of the deceased, in which it was alleged that she had mentioned the assailants as appellant Raju and two unknown persons, the requisition sent thereafter, Ex. P-4 states that death had occurred on account of assault by three unknown persons. Learned Counsel, therefore, submits that if the assault had been made by the persons named and the two unknown, there was no reason why the Investigating Agency had come to the conclusion that the persons who were assailants were unknown. He has further submitted that the evidence of the eye-witnesses is also contradictory and unreliable and conviction is, therefore unsustainable. ( 6. ) THE prosecution is depending on the testimony of the eyewitnesses namely Mamta Singh (P. W. 6) and Sangeeta (P. W. 13), both daughters of the deceased, and Sher Bahadur (P. W. 14), his son. He has further submitted that the evidence of the eye-witnesses is also contradictory and unreliable and conviction is, therefore unsustainable. ( 6. ) THE prosecution is depending on the testimony of the eyewitnesses namely Mamta Singh (P. W. 6) and Sangeeta (P. W. 13), both daughters of the deceased, and Sher Bahadur (P. W. 14), his son. Sangeeta (P. W. 13) is said to have lodged the report at the Police Station but she has not supported this fact. In her testimony she has stated that her mother had earlier eloped with accused Raju on few occasions. Enraged by the said behaviour of her mother, her father had sent her to her parents house. On 11-3-92, she heard the alarm raised by her father and rushed outside. Her brother and sister also accompanied her. They saw that 3 or 4 persons were scaling over the wall and only one person was properly seen. She could not recognize anyone. She found that her father had many injuries. He was brought inside the house. Thereafter, the police arrived. She has stated that she did not lodge any report but she has admitted her signatures on FIR (Ex. P-40 ). She stated that because the police asked her to subscribe her signatures, she signed the said report. When the report was read over to her, she denied having lodged the said report and the witness was declared hostile. ( 7. ) THE other two eye-witnesses are Mamta Singh (P. W. 6) and Sher Bahadur (P. W. 14 ). Mamta Singh (P. W. 6), aged thirteen years is also the daughter of the deceased. She has first deposed to her family status and, thereafter referred to the alarm being raised by her father. She stated that they all rushed to the place and saw that Raju Dhobi was assaulting her father. He had caused several injuries. Sher Bahadur (P. W. 14), son of the deceased, has deposed that earlier his mother had run away with accused Raju with her ornaments on one or two occasions. On 12-3-92 at about 12. 00 in the night, the three accused had mercilessly assaulted his father with knives, when he shouted loudly they scaled over the wall and escaped. ( 8. ) CONTENTION of the learned Counsel for the accused that the FIR (Ex. On 12-3-92 at about 12. 00 in the night, the three accused had mercilessly assaulted his father with knives, when he shouted loudly they scaled over the wall and escaped. ( 8. ) CONTENTION of the learned Counsel for the accused that the FIR (Ex. P-40) is antedated is for two reasons (i), that the name of Raju does not find place in the requisition for post-mortem (Ex. P-2) where it is mentioned that there were three unknown persons who had assaulted the deceased and (ii), that Sangeeta (P. W. 13) who made that report also says that she had merely subscribed her signatures. Thus, the possibility of the FIR having been antedated can not be ruled out. There is no evidence on record to show that in compliance of the provisions of Section 157, soon after the receipt of the report, intimation thereof was sent to the Jurisdictional Magistrate. In view of the doubt created by the recital in requisition (Ex. P-2) for post- mortem, it is doubtful that FIR was recorded at the time (at 3. 30 hours on 12-3-92) it purports to have been recorded. ( 9. ) APART from the above infirmity in the prosecution case, we find from the evidence of the eye-witness Mamta Singh (P. W. 6) that it was a dark night and it was not possible to identify the persons standing there. She has repeatedly stated that she could not identify the persons who were engaged in assaulting her father. Sangeeta (P. W. 13) has also admitted that at the time the incident took place it was dark and it was not possible to see. It appears that Rajus name occurred to the witnesses only because there were past incidents of his having eloped with their mother and the suspicion naturally fell on him. It is for this reason that name of Raju was mentioned while others were stated to be unknown. ( 10. ) SHER Bahadur (P. W. 14) has though tried to improve the case of the prosecution, he has frankly admitted in Para 9 that he had gone to the police station to lodge a report and his report was recorded on which his signatures were obtained. This report has not been produced by the prosecution. ( 11. ) LEARNED Govt. ) SHER Bahadur (P. W. 14) has though tried to improve the case of the prosecution, he has frankly admitted in Para 9 that he had gone to the police station to lodge a report and his report was recorded on which his signatures were obtained. This report has not been produced by the prosecution. ( 11. ) LEARNED Govt. Advocate has referred to the test identification parade in which the witnesses had correctly identified the accused persons as the assailants, as recorded in Ex. P-41. Since, in the dark the accused were not identified except accused Raju, who was identified by the witnesses as suspicion fell on him as he lives across, not much weight can be given to the test identification parade. In respect of Raju, as a matter of fact, no identification was necessary as he was known by name and appearance both. ( 12. ) TO sum up, we find that the FIR (Ex. P-40) said to have been lodged by Sangeeta (P. W. 13) appears to have been antedated, firstly, because Sangeeta (P. W. 13) denied having made the said report and secondly, in the report the name of appellant Raju figures though in the subsequent document (Ex. P-2), requisition for post-mortem, accused persons have been mentioned as unknown persons. We may clarify that we have not suggested that it is imperative to mention the names of the accused in requisition for post-mortem, but when a contrary statement is made, it assumes importance. The eye-witness account does not establish the prosecution case more. The incident had taken place outside where apparently there was no light. With these infirmities and improbabilities in the prosecution case, we find ourselves unable to sustain the conviction of the appellants. Accordingly, we set aside the conviction and the sentence passed against the appellants and acquit them of the charges against them. ( 13. ) THIS appeal is thus allowed. The appellants be released from custody forthwith, if not required in connection with any other case.