Judgment SHIVA KIRTI SINGH, J. 1. This appeal arises out of the judgment and order dated 4.2.1988 passed by the learned Additional Sessions Judge VI, Munger in Sessions Case No. 620/82 whereby out of 24 accused persons on trial he acquitted three and convicted 21 accused persons for the offence under sections 302/149 of the Indian Penal Code for which the appellants have been awarded life imprisonment. They have further been convicted under Sec. 436/149 I.P.C. for which they have been awarded rigorous imprisonment for ten years. Further conviction is under Sec. 380/149 I.P.C. for which sentence is seven years and lastly their conviction is under Sec. 201/149 for which sentence is three years rigorous imprisonment to each of the appellants. The sentences are to run concurrently. Initially the appeal was preferred by all the 21 convicted accused persons but in view of death of original appellant no.4 Ram Wali Yadav, original appellant no.8 Jag Narain Mahto, original appellant no. 10. Palo Mahto and original appellant no.20 Parmeshwar Mahto, their names have been expunged and the appeal is confined only to 17 appellants. 2. The fardbeyan of Lalo Yadav (P.W.1) was recorded on 22.4.1977 at 2.30 P.M. at village Bariahi against 28 named accused persons including the appellants giving rise to Alauli P.S. Case No.4 dated 22.4.1977. According to the fardbeyan, the prosecution case, in brief, is that Basa of the informant is situated in village Anandpur Maran, east of river Hadnah. On 21.4.77 at about 1.30 P.M. informant along with his uncle Gohal Yadav (deceased) and O.P. alias Upendra Mahto (deceased) was sitting in the Basa. From the west a mob of 30-35 persons armed with gun, bhala and lathi came in which he identified 28 persons including the appellants. Out of the said mob appellant no.1 Chandra Shekhar Yadav, Ramu Yadav (acquitted), appellant no. 17 Padam Lai Mahto, Surendra Yadav (not put on trial), appellant no.9 Kamli Mahto, appellant no. 10 Sukho Mahto and appellant no.7 Upendra Mahto had gun in their hands, Bato Mahto had lathi and rest were armed with bhala/farsa. The persons armed with gun began indiscriminate firing which caused injuries to Gohal Yadav who died inside the Basa and Upendra also received fire-arm injuries and died after going to some distance towards the south of the Basa. The informant on seeing the aforesaid incident went to Bharath Basti towards south. The persons armed with gun began indiscriminate firing which caused injuries to Gohal Yadav who died inside the Basa and Upendra also received fire-arm injuries and died after going to some distance towards the south of the Basa. The informant on seeing the aforesaid incident went to Bharath Basti towards south. The accused persons lighted fire in the Basa. They carried two dead bodies after wrapping the same in blanket etc. on a horse belonging to the informant. After accused persons had left, the informant came back to the Basa and found several articles including beddings, grains and utensils missing from the Basa. The occurrence was witnessed by 11 persons named in the fardbeyan including Bishundeo Yadav (P.W.2), Ramnandan Yadav (P.W.3) and one Udilal Yadav. No motive was disclsoed in the fardbeyan but the informant claimed in the fardbeyan that on the same morning he had filed a case in relation to the said occurrence at Khagaria Police Station. 3. Although Investigating Officer has not been examined nor the case diary has been exhibited or kept on record but it appears that after investigation police submitted chargesheet against 26 persons out of whom Bato Yadav and Dashrath alias Daso Mahto appear to have died during the trial. After cognizance the case was committed to the Court of Session. The accused persons pleaded not guilty to the charges and hence they were put on trial. Thereafter they have been convicted and sentenced by the judgment and order under appeal, as noticed earlier. 4. The defence of the accused persons, as appearing from the trend of cross-examination and arguments is of false implication on account of previous criminal cases pending against the father and uncle of the informant which the informant has admitted in his cross-examination as P.W.1. It has also been suggested by the defence that not only the deceased Gohal Yadav uncle of the informant was facing two criminal cases for murder but the father of the informant was also accused in one of the murder cases of 1975 and was traceless even till deposition of P.W.1 in Court in 1987. Hence, the defence has questioned the genuineness of the alleged occurrence suggesting that the alleged deceased might have absconded on account of involvement in the criminal case like the father of the informant. However, no defence witnesses has been examined nor any document has been exhibited on their behalf. Hence, the defence has questioned the genuineness of the alleged occurrence suggesting that the alleged deceased might have absconded on account of involvement in the criminal case like the father of the informant. However, no defence witnesses has been examined nor any document has been exhibited on their behalf. 5. The prosecution in order to prove its case has examined altogether four witnesses. P.W.1 Lalo Yadav is the informant. P.W. 2 Bishundeo Yadav is named in the fardbeyan as witness of the occurrence but he has been tendered only for cross-examination. P.W.3 Ram Nandan Yadav is named in the fardbeyan as witness and he has deposed as an eye-witness and has tried to corroborate the prosecution case. P.W.4 Rajendra Prasad Yadav is a formal witness a constable who has proved the fardbeyan as Exhibit 2 and the formal F.I.R. as Exhibit 3. The signature of the informant on the fardbeyan has been proved by P.W.1 the informant as Exhibit 1. 6. It is noticeable that in this case the Investigating Officer has not been examined and from the materials on record it appears that neither dead bodies were recovered nor any articles were seized at the place of occurrence nor the case diary has been made available to the-court so that the court could look into the same for finding out-whether omission to examine the Investigating Officer has prejudiced the defence of the accused or not. None of the witnesses have claimed that any burnt ariticle or any incriminating articles like blood at the place of occurrence was seized by the police. In cross-examining P.W.3, the defence has put several questions regarding earlier statement by this witness made before the Investigating Officer under Sec. 161 of the Code of Criminal Procedure. In order to show contradictions or vital omissions the Investigating Officer was required to be cross-examined as regards the earlier statement of P.W.3. The defence could not get the said opportunity on account of non-examination of the Investigating Officer. 7. On going through the evidence of P.W.1 it is found that in court he has changed his earlier version given in the fardbeyan in many respects including the names of the accused persons and those who were with guns, the manner of occurrence relating to the burnings of the Basa by the accused persons. 7. On going through the evidence of P.W.1 it is found that in court he has changed his earlier version given in the fardbeyan in many respects including the names of the accused persons and those who were with guns, the manner of occurrence relating to the burnings of the Basa by the accused persons. In court he has not named the 3 acquitted accused and included new names and has claimed to have seen full details of burning of the Basa so as to name specific persons who allegedly poured kerosene oil and set fire to the Basa by match-box. He has denied to have filed any case at Khagaria Police Station and has claimed that he went to Khagaria in the morning hours on the next day of the occurrence and lodged a complaint case in court. Thereafter he has claimed to have gone back to his Basa at about 4.30 in the evening and according to him, his fardbeyan was recorded by the police at his Basa in the evening. The fardbeyan contained in Exhibit 2 shows that it was recorded not at the Basa of the informant which is in another village but at his native village i.e. village Bariahi at 14.30 hours. He has failed to give any appealing explanation for not lodging the case on the date of occurrence and it is strange that even after admitting that he had filed a complaint at Khagaria, the facts of that case have been suppressed and the complaint petition has not been brought on record. Clearly, the earliest version of the occurrence has been suppressed and kept away from the court. In such circumstances, the learned counsel for the appellants has rightly submitted that adverse inference must be drawn against the prosecution for suppressing admitted earliest version of the occurrence in the form of a complaint petition. 8. On going through the evidence of P.W.3, it is clear that he has given a new story that the informant had gone to the Police Station in the morning but his case was not recorded because the Officer Incharge was not available. This has not been claimed by P.W.1. 8. On going through the evidence of P.W.3, it is clear that he has given a new story that the informant had gone to the Police Station in the morning but his case was not recorded because the Officer Incharge was not available. This has not been claimed by P.W.1. P.W.3 has further stated that he was available with the informant at the time of recording of the fardbeyan and thereafter also but inspite of his repeated attempts, the investigating officer recorded his statement only after 2-3 days and that also differently and not the way he had given statement. He has admitted that he is involved in a case of arosn from before and his father is also involved in several criminal cases and has gone to jail several times. On careful scrutiny of the evidence of P.W.3 it is found that he is not a reliable witness and only on the basis of his corroboration to some extent in respect of the case alleged by the informant, it is not safe to accept the version of the informant as true. 9. There is apparent inordinate dealy in recording of the fardbeyan of the informant and no plausible explanation is available on the record, in the fardbeyan it is mentioned that the miscreants went away along with dead bodies on a horse. It is also mentioned in the fardbeyan that at least 11 witnesses were available and had seen the occurrence. It appears that after the occurrence the informant was in the company of his own people either at his own Basa or at his village and hence it is clear that there was no good reason for the delay in giving the fardbeyan to the police. This also creates a doubt that the prosecution version is belated and an afterthought in order to implicate the enemies or their friends. P.W.1 has admitted in paragraphs 4 and 5 of his cross-examination relating to old murder cases in which relations of some of the accused of this case have been killed and some of the accused were witnesses. It has also come in the evidence of P.W.1 that one Udilal was assaulted by one of the accused persons by lathi in course of the alleged occurrence. No injury report of the said witness is available nor he has been examined in court to support the prosecution case. It has also come in the evidence of P.W.1 that one Udilal was assaulted by one of the accused persons by lathi in course of the alleged occurrence. No injury report of the said witness is available nor he has been examined in court to support the prosecution case. Hence, there is merit in the submission advanced on behalf of the appellants that important and independent witnesses have not been examined although they are named in the fardbeyan. We also agree with the submission advanced on behalf of the appellants that non-examination of the Investigating officer has caused prejudice to the accused persons and it has also left a lacuna in the prosecution case because the place of occurrence has not been proved by objective findings of the Investigating Officer. 10. In view of the aforesaid discussions, we find that the appellants cannot be convicted on the basis of evidence available on record. Hence their conviction and sentence by the impugned judgment and order for the charegs under Sections 302/149, 436/149, 380/149 and 201/149 of the I.P.C. are set aside. The appeal of these appellants is hereby allowed. They snail stand discharged from the liabilities of their bail bonds.