JUDGMENT S.L. Kochar, J. 1. The Appellants named above being dissatisfied by the judgment dated 25.6.1997 passed by the learned Additional Sessions Judge, Manawar, District Dhar in ST No. 326/90, thereby convicting each of them guilty of the offences punishable under Sections 302 read with Sections 149, 148 and 201 of the Indian Penal Code and sentencing them each to suffer imprisonment for life with fine of Rs. 1,000/- in default of payment of fine to suffer additional RI for two years. RI six months and RI six months with fine of Rs. 500/-, in default of payment of fine to suffer additional SI for six months respectively, have preferred this appeal. 2. It would be appropriate to mention here that in all 16 accused persons were prosecuted and tried by the trial Court. The trial Court, however, found the aforesaid nine Appellants guilty, convicted and sentenced them as indicated hereinabove and acquitted seven accused persons namely, Deochand, Narsingh, Versingh, Kaliya, Munna, Jhamariya, Ambu and the State did not prefer any appeal. 3. Briefly stated, the prosecution case as submitted before the trial Court is that the complainant PW3 Kalusingh was residing in village Karondia with his family and doing the work of preparing fence and other articles by bushes and was carrying agricultural work. Deceased Bachchusingh was his cousin brother and residing adjacent to his house. A day prior to the date of incident deceased Bachchusingh and his wife returned back to their house from village Bamanpuri. On 5.3.1990 early in the morning the complainant and all the villagers went to the forest for cutting the bushes (sonti) and returned in the noon between 1:00 and 2:00 p.m. After taking noon-meals, they started preparing fence by bushes. At that juncture, deceased Bachchusingh came running from the side of Patelpura towards his house and the accused persons, sixteen in number, residents of Patelpura came chasing him armed with bow and arrow, axe, lohangi and gofan (sling) in their hands. They were saying to catch Bachchusingh and while pelting stones as well as shooting arrows, reached near the house of Bachchusingh. Bachchusingh was caused arrow shot injury by the Appellant Jagan on his scapula region as also on left leg. The deceased took out the arrow and threw the same. The deceased then went towards the back side of his house and accused persons surrounded him. Bachchusingh was caused arrow shot injury by the Appellant Jagan on his scapula region as also on left leg. The deceased took out the arrow and threw the same. The deceased then went towards the back side of his house and accused persons surrounded him. Accused Kola caused injury to Bachchusingh by lohangi resulting into his fall and thereafter, accused Jagan and Padam chopped off his left hand by axe and all the accused persons assaulted him by lohangi, bow and lathi. On the spot, the accused persons delivered threats to the complainant Kalu not to interfere or else he would also be done to death. From the spot Bachchusingh was lifted and taken towards the Police Outpost Umarban. After half an hour, the witness Ganpat (not examined) reached the village from Umarban school and asked the complainant as to where Bachchusingh was being taken. He also told him that on the way he did not meet the persons residing in Patelpura locality, but in the field of Madiya Baba fire was enkindling and some persons were standing around it. On this information, the complainant and his father Mishriya reached over there and saw that underneath the fuel-wood, a person was burning. The complainant identified the deceased and they immediately rushed to their village and disclosed to the villagers. The complainant Kalu lodged the report at the Police Outpost Amarban Ex.P-3. On the basis of this report at the Police Station Manawar crime was registered vide first information report Ex.P-33 on 6.3.1990 at 9:00 p.m. PW15, ASI R.S. Hateela took up the investigation and prepared inquest report, spot map vide Ex.P-4 and P-22 respectively. He also seized blood stained and controlled earth as well as some ash and burnt bones. The dead body was sent for post-mortem examination and the same was performed by PW16 Dr. D. Badkoor, Joint Diector, Forensic Science Institute, Bhopal on 8.3.1990. His report is Ex.P-34. After completion of investigation, charge-sheet was filed against sixteen accused persons. 4. The accused persons denied the charges. According to them, they have been falsely implicated by the police. They were charged under Sections 148, 302, 302 read with Section 149 and 201 of the Indian Penal Code. They have not examined any witness in defence. 5. We have heard learned Counsel for the parties and also perused the entire record carefully. The accused persons denied the charges. According to them, they have been falsely implicated by the police. They were charged under Sections 148, 302, 302 read with Section 149 and 201 of the Indian Penal Code. They have not examined any witness in defence. 5. We have heard learned Counsel for the parties and also perused the entire record carefully. It emerged from the record that the conviction of the Appellants is based on eye-witnesses account though the prosecution has failed to establish by adducing medical expert evidence about homicidal death of the deceased. Viscera was preserved, but no report was filed in the Court. The report of Forensic Science Laboratory was also not filed by the prosecution for the reasons best known to the prosecuting and investigating agencies. Surprisingly enough, the medical report/post-mortem report Ex.P-34 proved by PW16 Joint Diector, Forensic Science Laboratory and Senior Forensic Scientist Dr. D. Badkoor is disclosing the fact that this report in part of final report and at the top of the report, in column of subject, it is mentioned that this report is "short report". This Court has put a specific question to the counsel for the State as well as the counsel for the Appellants whether there is any other postmortem report filed by the prosecution and is available on record, their answer was in negative. 6. In our considered opinion, Ex.P-34 cannot be considered as postmortem report though the scribe of this report Dr. Badkoor (PW16) has mentioned this report as post-mortem report No. 226/1990 dated 8.3.1990. But, in this report, only opinion is mentioned which is as under : The body is in severely burnt state and some parts are almost completely incinerated/charred. The cause of death remains open as injuries could not be appreciated because of burns. Available Viscera has been preserved. Duration of death appears to be within 2 to 5 days. 7. The same facts have been stated by the expert in the Court and no question was put to him by the prosecutor or the trial Court (as per provision under Section 165 of the Indian Evidence Act) about independent external examination and internal examination of the body. Duration of death appears to be within 2 to 5 days. 7. The same facts have been stated by the expert in the Court and no question was put to him by the prosecutor or the trial Court (as per provision under Section 165 of the Indian Evidence Act) about independent external examination and internal examination of the body. The report Ex.P-34 is nowhere disclosing the fact of dissection of dead body for external examination and at the bottom of the report, in the column of 'Note' it is mentioned that "this report is part of final report". And the entire report is also showing the fact that it is giving only the opinion and not the findings, found on conduction of the post-mortem examination of the dead body when the burnt body was available as per the statement of the witnesses and Investigating Officer PW15 Hateela ASI who prepared the inquest report. The viscera report has also not been submitted by the prosecution and for filing incomplete post-mortem report and non-filing of viscera examination report, no explanation has been offered by the prosecution. 8. The learned trial Court, in para 9 of the impugned judgment, has given finding that on the basis of the medical evidence and the report Ex.P-34, conclusion cannot be drawn that Bachchusingh suffered injuries on his person and the learned trial Court based its judgment of conviction only on the eye-witnesses account. We have considered this aspect of the matter and according to us, when burnt body was available, why the medical expert has not given the finding about external appearance of the body as well as after dissection about internal position and according to us, it is clear case of sheer negligence by the investigating agency. No expert/medical evidence is available as to whether the deceased met homicidal death or otherwise. 9. PW3 Kalu who lodged the first information report Ex.P-3 first in point of time has deposed in para 6 of his cross-examination that the police party first inspected the spot and recorded the report in the same line and thereafter obtained his signature. This positive admission of the witness is showing the fact that the report Ex.P-3 was not recorded as shown to be recorded. This positive admission of the witness is showing the fact that the report Ex.P-3 was not recorded as shown to be recorded. What information was given by this witness to the police is not on record, on the basis of which the police party reached on the spot and inspected the same, thereafter, drawn the first information report and obtained the signature of this witness. In this situation, the first information report Ex.P-3 cannot be considered as a genuine document and honestly recording of the information given to the police by the witness about the incident. This view of ours is fortified by material contradictions, omissions and embellishment occurring in the statement of the complainant/eyewitness PW3 Kalu and other witnesses. This witness has admitted that the deceased was facing a number of criminal cases and was absconding. There is omission in the first information report Ex.P-3 about the names of the eye-witnesses Kalu, Gulab and Richhiya which he has disclosed in the Court for the first time. There is also material omission in the first information report which amounts to contradiction that the accused persons collected fuel wood and thereafter set fire to deceased Bachchusingh. According to the Court statement of this witness acquitted accused Deochand played a major role and he ablazed the deceased. This witness has further admitted that the place of burning of the dead body was not visible from the village and they reached on the spot after half an hour. He was not knowing as to who collected the fuel wood. He was also not knowing the name of the owner of the land. He was contradicted by his case diary statement Ex.D-2 and D-3 wherein it is mentioned that the dead body was burning in the field of Madiya Baba. This witness also admitted that when he reached on the spot, none of the accused persons was present over there and the body was burning. He has also admitted that immediately thereafter he proceeded to the police outpost and the police told him that first they would inspect the spot and only thereafter, they would record the report and on two motor cycles PW15 ASI Hateela, Constable Chandra Prakash and Surendra reached on the spot. They extinguished the fire. This witness and other persons fetched water from the well. 10. They extinguished the fire. This witness and other persons fetched water from the well. 10. At this stage, it would be apt to refer to the statement of the Investigating Officer PW15 ASI R.S. Heteela. The say of this witness is that on 5.3.1990, he was in charge of police outpost and had recorded the first information report on zero number. He proved its report as Ex.P-3 and sent the same to the main Police Station Manawar where Crime No. 124/90 was registered. He reached on the spot and prepared the inquest in presence of the witnesses and also prepared the spot map Ex.P-22. He also seized burnt bones and ash from the spot through seizure memo Ex.P-6. In cross-examination para 6, he has admitted that he did not prepare any document on 5.3.1990. We have perused the inquest report, spot map, seizure memo and all the documents showing the date of its preparation as 6.3.1990. The report Ex.P-3 was recorded on 5.3.1990 at 5:30 p.m. The distance of place of incident is shown at 5 Kms. If this date and time of recording of the first information is taken to be correct and immediately thereafter, PW15 Hateela reached on the spot, why he did not prepare the inquest and spot map, seizure of blood stained and controlled earth, ash and burnt bones of the deceased on 5.3.1990. In para 3, he has admitted that after recording the first information report Ex.P-3, within ten to fifteen minutes he reached on the spot. He has also admitted that he found the dead body burning and with the help of the villagers he extinguished the fire. Thereafter, on the same day, he issued notice to the witnesses for preparing the inquest and also prepared the inquest and spot maps. This statement is incorrect at the face of the document seizure memo and spot map as well as the positive evidence of this very witness in para 6 that he did not prepare any document on 5.3.1990. 11. Now we advert to the statement of other witness PW2 Dalsingh, whose statement was recorded by the police after nine days and no reason has been assigned any this witness as well as the Investigating Officer for delay in recording his statement. According to this witness Dalsingh, he saw deceased Bachchusingh running towards his house and being chased by the Appellants Jagan and Sadiya. According to this witness Dalsingh, he saw deceased Bachchusingh running towards his house and being chased by the Appellants Jagan and Sadiya. The house of Bachchusingh was situated adjacent to the house of this witness and he had not seen anybody while assaulting the deceased Bnachchusingh. This witness has also admitted that the police was visiting Bachchusingh very oftenly and he was facing a number of criminal prosecution. In his case diary statement Ex.D-1, there is omission of the fact that the Appellants Jagan and Sadiya stopped Bachchusingh who was going on bicycle. There are other omissions and contradictions at portion marked 'A to A' to 'D to D' which have been denied by this witness. He is in relation of the deceased. PW4 Rambha, the brother of deceased Bachchusingh, has also claimed to be an eye-witness of the incident, but in para 4, he admitted that the police reached in the village on the date of incident and also on the second and third day he and his sister-in-law PW5, Kalabai, wife of the deceased, were in the village and the police recorded their statements on the third day. Prior to that, he did not disclose about the incident to anybody. He admitted that in his police statement, he did not mention about war-cry made by the accused persons saying that Bachchusingh must be done to death. In para 4, he has also admitted that he came to know about killing of Bachchusingh by the accused persons on the next day from the villagers and the moment he came to know about the death of his brother, he fell unconscious. In view of this statement, his whole statement in examination-in-chief with regard to witnessing the incident stands wiped off and the prosecution has not re-examined this witness. 12. PW5 Kalabai is the wife of the deceased. According to this witness, on the date of incident, her husband Bachchusingh came running to the house in injured condition. He had arrow shot injuries, may be 22 to 25 in number on his leg, abdomen and other parts of his body. At that time, her sister-in-law Ramabai (PW4) was also present. PW5 Kalabai is the wife of the deceased. According to this witness, on the date of incident, her husband Bachchusingh came running to the house in injured condition. He had arrow shot injuries, may be 22 to 25 in number on his leg, abdomen and other parts of his body. At that time, her sister-in-law Ramabai (PW4) was also present. According to this witness only she herself and Ramabai were present and they saw the accused persons chasing Bachchusingh and the Appellant Jagan had caught him whereas the Appellant Kola dealt a lathi blow, because of which, the deceased fell down on the ground and the Appellant Padam chopped off his left hand by axe. She intervened in the quarrel, but even then her husband was taken away by the Appellants and set fire to his body in a pit situated in front of her house. She also stated that she was a house wife and was not supposed to know so many Appellants by names. In her cross-examination, she identified the accused Jhamariya as Vishram and at the time of incident, 100 to 200 persons of village Patelpura were there and all were saying "maar do, maar do". She has given just contrary statement to the other witnesses about the place of burning of the body of the deceased as well as the presence of number of persons and specific overt act of the accused persons. She has been contradicted with her case-diary statement on specific overt act and identification of the accused persons and she failed to identify the accused persons in the Court. She denied the fact mentioned in her police statement Ex.D-3 at portion marked 'B to B' that she received information from Kalu and Ganpat after half an hour about burning of the deceased. This shows that she was not present when the deceased was set fire. 13. All the prosecution witnesses ae close relatives of the deceased, i.e., father, brother, wife, sister and cousin brother. Their statements are contradictory to each other on specific overt act of the Appellants and acquitted co-accused persons as well as with their case diary statements. The learned trial Court acquitted seven accused persons and we do not find sufficient reason in the judgment for distinguishing the case of the present Appellants from that of the acquitted co-accused persons. Their statements are contradictory to each other on specific overt act of the Appellants and acquitted co-accused persons as well as with their case diary statements. The learned trial Court acquitted seven accused persons and we do not find sufficient reason in the judgment for distinguishing the case of the present Appellants from that of the acquitted co-accused persons. The star witness, cousin brother of Bachchusingh PW3 Kalu has levelled major allegations against the acquitted co-accused Deochand. As discussed hereinabove, the medical evidence and the first information report Ex.P-3 which was not recorded as stated by the Investigating Officer as well as the witness on the date, time and place and it is established that the same was prepared later on after due consultation. In such situation, the Supreme Court has observed in the case of Marudanal August v. State of Kerala AIR 1978 SC 638, as under : The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated, or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. 14. In the instant case, in view of the absence of positive opinion about homicidal death and doubt on genuineness of the first information report, there is no evidence to check the prosecution case which may overcome this major and material defect. We also find difficulty to separate the grain from the chaff which is inextricably mixed in this case. 15. As a result of the discussion as aforesaid, the appeal of the Appellants succeeds and consequently it is allowed. Their conviction and sentences as awarded by the trial Court are hereby set aside. The Appellant No. 9, Vishram is in jail. He is directed to be released forthwith if not required in any other case. All the remaining Appellants are on bail. Their bail and surety bonds are hereby discharged. Let a copy of this judgment be transmitted to the trial Court along with the record for immediate compliance. Appeal allowed