Judgment SUNIL KUMAR SINHA, J. (1) Challenge in these appeals is to the judgment dated 10-2-2004 passed by the Fourth Additional Sessions Judge (F.T.C.), Janjgir (C.C.) in Sessions Trial No. 435/2005, whereby, the appellants have been convicted and sentenced in the following manner with a direction to run the sentences concurrently :- Conviction Sentence u/S. 302, IPC Imprisonment for life and fine of Rs. 100, in default of payment of fine to further undergo R.1. for 1 month. u/S. 325, IPC R. I. for 3 years and fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for 1 month. u/S. 460, IPC R. I. for 7 years and fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for 1 month. u/S. 120-B, IPC Imprisonment for life and fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for 1 month. (2) The facts, briefly stated, are as under:- Sangeeta Sharma (RW. 7) is the wife of Yogesh Sharma (RW. 9). Deceased Jagatram was the father of Yogesh Sharma. They were residing together in village Jogideepa. On 14- 10-2002 at about 10.45 p.m. deceased Jagatram was sleeping in his room on the ground floor of their house and Yogesh Sharma (P.W. 9) and his wife Sangeeta Sharma (P.W. 7) were sleeping in another room on the first floor. Yogesh Sharma and Sangeeta Sharma heard the groans of deceased Jagatram. When they rushed to his room, they saw that two unknown persons with covered faces were strangulating and assaulting the deceased. They also started assaulting Yogesh Sharma. Yogesh Sharma said his wife to escape from that place. His wife rushed back to the first floor and closed the doors. She made hue and cry from the terrace, on which, her neighbour Durga (P. W. 11) and his brother came there. They advised her to jump from the terrace. She jumped from the terrace and went to the house of Durga. After sometime Yogesh Sharma also came to the house of Durga in injured condition and fell down. The villagers were called. They told that Jagatram has died. The assailants while assaulting Yogesh Sharma, had also snatched his golden chain. The matter was reported to the police by Sangeeta Sharma (P.W. 7), on which, a Merg intimation (Ex. P/7) and a First information Report (Ex. P/8) were recorded. The villagers were called. They told that Jagatram has died. The assailants while assaulting Yogesh Sharma, had also snatched his golden chain. The matter was reported to the police by Sangeeta Sharma (P.W. 7), on which, a Merg intimation (Ex. P/7) and a First information Report (Ex. P/8) were recorded. Based on these documents, regular Merg intimation and First Information Report (Ex. P/39 and P/40) were recorded in the concerned police station. Injured Yogesh Sharma (P.W. 9) was sent to Primary Health Centre, Pamgarh for his medical examination under Ex. P/15(A), where he was examined by Dr. R. D. Gupta (P.W. 15), who prepared his report Ex. P/15. He noticed one incised wound, 4 lacerated wounds and abrasions etc. on the body of Yogesh Sharma and referred him for further treatment to Dharam Hospital, Bilaspur on 15-10-2002, where he was treated by Dr. Manoj Jaiswal (P.W 25). The bed-head-ticket of the hospital is Ex. P/9. The Investigating Officer reached to the scene of occurrence, gave notice (Ex.P/1) to the Panchas and prepared inquest (Ex. P/2) on the body of the deceased. Blood stained soil, plain soil and other articles were seized from the place of occurrence under Ex. P/3. Site plan was prepared under Ex. P/4. The dead body of the deceased was sent for postmortem to Primary Health Centre, Pamgarh under Ex. P/13, where the post-mortem examination was conducted by Dr. R. D. Gupta (P.W. 15), who gave his report Ex.P/14. The Autopsy Surgeon noticed many injuries on the body of the deceased and opined that the cause of death was asphyxia, due to excessive bleeding and neurogenic shock and it was homicidal in nature. On 19-10-2002,161 statement of Yogesh, Sharma (Ex. D/3) was recorded by the police, in which, he disclosed that apart from the two assailants as mentioned in the FIR, two more assailants had entered into the house and they had also participated in commission of crime. He added that out of four assailants, two assailants with covered faces were looking like appellants Chitra Vijay Singh and Vishmbhar and the remaining two were appellants Rajesh Sharma and Dharmesh Sharma. In further investigation, the appellants were taken into custody and their memorandum statements (Ex. P/23, P/26, P/27 and P/28) were recorded on 20-10-2002 and clothes etc. bamboo-stick and tangia were seized on their instances under Ex. P/24, P/25, P/29, P/30 and P/31. In further investigation, the appellants were taken into custody and their memorandum statements (Ex. P/23, P/26, P/27 and P/28) were recorded on 20-10-2002 and clothes etc. bamboo-stick and tangia were seized on their instances under Ex. P/24, P/25, P/29, P/30 and P/31. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex. P/44, from where, a report Ex. P/45 was received. According to the FSL report, blood stains were found on all the articles except T-shirt and full-pant seized from the possession of appellant Dharmesh Sharma. The articles were also sent for serologist examination to laboratory at Calcutta but the report regarding origin and group etc. could not be produced. After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Janjgir, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fourth Additional Sessions Judge (F.T.C.), Janjgir (C.G.) who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. The conviction of the appellants is based on the testimonies of Sangeeta Sharma (P.W. 7) and Yogesh Sharma (P.W. 9). (3) Learned counsel appearing on behalf of the appellants would argue that the FIR contains about only two assailants. The story relating to involvement of four assailants, including their names, came for the first time on 19-10-2002 when 161 statement of Yogesh Sharma, (P.W: 9) was recorded. They would argue that the FIR was lodged by Sangeeta Sharma (P.W. 7) after meeting with her husband Yogesh Sharma therefore, the story regarding assault by four persons would have come in the FIR. They would further argue that there is ample evidence to show that Yogesh Sharma was throughout in conscious condition and he had talked with his wife Sangeeta Sharma (P.W. 7) on many occasion prior to lodging of the FIR, therefore, omission about mentioning the names and numbers of the assailants in the FIR was fatal to the prosecution and the story with relation to involvement of the appellants appears to be doubtful. They would also argue that Yogesh Sharma P.W. 9) stated that the two assailants were looking like appellants Chitra Vijay Singh and Vishmbhar by their personalities and on this only, it has been held that they were involved in crime in question. They would also argue that Yogesh Sharma P.W. 9) stated that the two assailants were looking like appellants Chitra Vijay Singh and Vishmbhar by their personalities and on this only, it has been held that they were involved in crime in question. (4) On the other hand learned Additional Advocate General appearing on behalf of the State, opposed these arguments. He would submit that Yogesh Sharma (P.W. 9) was throughout unconscious, therefore, he had no opportunity to disclose the names of the assailants to anybody else particularly prior to lodging of the FIR and the Merg intimation. Therefore, the omission was not fatal to the prosecution. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (5) SANGEETA Sharma (P.W. 7) deposed that "she does not know the accused persons who were present in the Court. The incident took place at about 10/10-45 p.m. on 14-10-2002. They heard noise of her father-in-law Jagatram, and came on the ground floor in his room. One stout boy attacked her husband. He threw him on the ground and started assaulting him. The assailant had covered his face by a mask. He was wearing brown full- pant and T-shirt. Another assailant was beating her father-in-law. Her husband said her to escape away from the room, on which, she went to the first floor and closed the doors. Then she went to the terrace and started making cries. Durga (P.W. 11) and her brother came near the terrace and said her to jump from the terrace, on which, she jumped from the terrace and went to the house of Durga. Her husband also came to the house of Durga, he was in injured condition. He became unconscious in the house of Durga. Later on Durga called the villagers, who took his husband on a tractor to the hospital. The assailants had taken golden chain of her husband. Her father-in-law had died. Police personnel met them in village Jogideepa itself. She had lodged the report in Government Hospital, Pamgarh. When her husband became conscious in the hospital at Bilaspur, he told that the two assailants, who had entered into the house first, were appearing like appellants Chitra Vijay Singh and Vishmbhar on their heights and personalities. Her father-in-law had died. Police personnel met them in village Jogideepa itself. She had lodged the report in Government Hospital, Pamgarh. When her husband became conscious in the hospital at Bilaspur, he told that the two assailants, who had entered into the house first, were appearing like appellants Chitra Vijay Singh and Vishmbhar on their heights and personalities. He also told that after departure of the said two assailants, who were looking like Chitra Vijay Singh and Vishambhar, appellants Rajesh Sharma and Dharmesh Sharma entered into their house and assaulted her husband and father-in-law." (6) The FIR (Ex. P.8) was lodged by this witness at 6.45 a.m. on 15-10-2002. Her first 161, Cr. P.C. statement (Ex.D/1) was recorded on 16-10-2002 and a supplementary statement (Ex. D/2) u/S. 161 was also recorded on 19- 10-2002. Neither in the FIR nor in her first 161 statement (Ex. D/1), she tells about the involvement of the four assailants. She only tells that two assailants having covered their faces by mask entered into her house and assaulted her husband and father-in-law. In the second statement (Ex.D/2), she stated that her husband told her that two persons were looking like appellants Chitra Vijay Singh and Vishmbhar and two other appellants namely Rajesh Sharma and Dharmesh Sharma also came later on and assaulted the deceased and her husband. Omission regarding mentioning the names of the assailants in the FIR and in the first 161 statement were fatal to the prosecution because it comes in her cross-examination in para 17 that when her husband was being taken to the hospital in the tractor, he was conscious but he did not tell the names of the assailants to her. In para 18, she admitted that her husband was treated in Pamgarh Hospital for about one hour and during this period he was asked by the police officer as to who were the assailants, but he did not disclose the names of the assailants to him. She also admitted in para 15 of the cross-examination that on 17-10-2002, her husband had disclosed the names of the assailants to her and his nephew (Bhanja) Manish Tiwari in the hospital at Bilaspur. She was confronted by her police case diary statement on many points. She also admitted in para 15 of the cross-examination that on 17-10-2002, her husband had disclosed the names of the assailants to her and his nephew (Bhanja) Manish Tiwari in the hospital at Bilaspur. She was confronted by her police case diary statement on many points. If Yogesh Sharma (P.W. 9) was knowing the names of the assailants as he mentioned later on in his police case diary statement on 19-10-2002, he would have certainly made disclosure to his wife and other villagers and also to the police officer who had asked about the incident while his treatment in Pamgarh Hospital on 15-10-2002. We are unable to accept the arguments advanced by the learned counsel for the State that Yogesh Sharma (P.W. 9) was throughout unconscious till 17-10-2002, therefore, the names of the assailants or the suspects were not disclosed by him either to his wife or to the villagers or to the police officer. Sangeeta Sharma (P.W 7) has categorically admitted that Yogesh was conscious in the tractor-trolley while on the way to the hospital. It also comes in the bed-head-ticket of Government Hospital Bilaspur that Yogesh Sharma was conscious at the time of his admission on 15-10-2002. His pulse rate was 86 per minute and blood pressure was 120/80 MMHg. Dr. R. D. Gupta (P.W. 15) specifically mentioned in the bed-head-ticket that his speech was normal. The bed-head-ticket has been proved as Ex. P/9. The injury report of Yogesh Sharma (Ex. P/15) would show that at the time of his first medical examination in Pamgarh Hospital, Dr. R. D. Gupta (P.W. 15) has also recorded his pulse rate as 80 per minute and the blood pressure as 110/72 MMHg. Not only this, it comes in the evidence of a child witness, Yogeshwar (P.W. 3) that Yogesh Sharma (P.W. 9), after the incident, firstly went to the house of Chitra Vijay by walking and thereafter he came to their house and at that time he was fully conscious and was talking. (7) DIL Singh (P.W. 29) is the father of Yogeshwar (P.W. 3). The case of the prosecution is that just after the incident, firstly Sangeeta came to their house and then Yogesh came there in injured condition. (7) DIL Singh (P.W. 29) is the father of Yogeshwar (P.W. 3). The case of the prosecution is that just after the incident, firstly Sangeeta came to their house and then Yogesh came there in injured condition. In paras 1 and 5 of his evidence, he deposed that he had given shelter to Yogesh Sharma (P.W. 9) in his house and where he asked as to who assaulted him and his father ?, Yogesh stated that he could not identify the assailants on account of darkness. (8) ALL the above facts show that in fact, Yogesh (P.W. 9) was throughout conscious from 14-10-2002 to 19-10-2002 when his 161, Cr. P.C. statement (Ex. D/3) was recorded. He had talked with the villagers, his wife Sangeeta Sharma (P.W. 7) and Dil Singh (P.W. 29) as also with the police officer in Government Hospital, Pamgarh but he did not disclose the names of the assailants to them. This shows that Yogesh Sharma (P.W. 9) could not identify the first two assailants, who had covered their faces by mask and about whom he said that they were looking like Chitra Vijay Singh and Vishmbhar and further that he falsely adding the names of remaining two appellants i.e. Dharmesh Sharma and Rajesh Sharma who were brothers and residents of same locality. Yogesh Sharma (P.W. 9) deposed that "when he reached to the room of his father in the ground floor, he was assaulted by two assailants who had covered their faces by mask. The assailant who attacked over him was appellant Vishmbhar, whereas, the other was Chitra Vijay Singh who was assaulting his father. When these two persons ran away from his house, appellants Rajesh and Dharmesh came there. Appellant Dharmesh was armed with tangia. They assaulted his father by tangia. Rajesh also assaulted him on his head by tangia. He further deposed that thereafter he went to the house of Durga (P.W. 11) and became unconscious. When he gained consciousness, he found that he was on the tractor-trolley of appellant Rajesh and was being taken to Pamgarh. His wife Sangeeta (P.W. 7), Durga (P.W. 11) and other villagers were also accompanying him. Later on, he again became unconscious and gained consciousness in Bilaspur Hospital. He had narrated the story to his wife and nephew Manish Tiwari in Bilaspur Hospital. His wife Sangeeta (P.W. 7), Durga (P.W. 11) and other villagers were also accompanying him. Later on, he again became unconscious and gained consciousness in Bilaspur Hospital. He had narrated the story to his wife and nephew Manish Tiwari in Bilaspur Hospital. Pamgarh police came to him in Bilaspur Hospital and recorded his statement on 19-10-2002." He has been cross examined by the defence. He admitted in para 15 that he did not state to the police as mentioned in portion 'A to A' and 'B to B' on his case diary statement (Ex. D/3) which shows that one person was looking like Chitra Vijay Singh and the other person was looking like Vishmbhar. How this statement is written, he cannot tell the reason for the same. He deposed in para 18 that he did not tell the names of the assailants to his wife on account of fear. He also admitted in para 19 that in fact, Dharmesh and Rajesh had taken him for treatment to Pamgarh Hospital on their own tractor and trolley. They came by tractor and trolley once or twice for seeing him. He categorically admitted that prior to 17-10-2002, he did not tell the names of the assailants to anybody else. The conduct of this witness appears to be unnatural. The explanation for not telling the names of the assailants to the villagers and also to his wife on account of fear appears to be false and after thought explanation. If we examine the testimony of this witness in light of the evidence of the other witnesses, particularly Dil Singh (P.W. 29), he had given explanation to him that he could not identify the assailants because of the darkness. It comes in the evidence of Sangeeta Sharma (P.W. 7) that the police party had accompanied them to Government Hospital, Pamgarh and the police officer had asked him about the assailants but there also he did not disclose the names. When the police party was present with them, there was no question of fear. How this fear vanished on 17-10-2002 or 19-10-2002 when he disclosed the names of assailants to his wife and nephew Manish Tiwari as also to the concerned police officer who recorded 161 statement. (9) IN appreciation of entire evidence on record, we find that Sangeeta Sharma (P. W. 7) and Yogesh Sharma (P.W. 9) were not reliable witnesses. How this fear vanished on 17-10-2002 or 19-10-2002 when he disclosed the names of assailants to his wife and nephew Manish Tiwari as also to the concerned police officer who recorded 161 statement. (9) IN appreciation of entire evidence on record, we find that Sangeeta Sharma (P. W. 7) and Yogesh Sharma (P.W. 9) were not reliable witnesses. There are many discrepancies in their Court evidence. Yogesh Sharma (P.W. 9) even being in conscious condition, did not disclose the names of the assailants till 17-10- 2002. He got many opportunities to disclose about the assailants to his wife, to the villagers and even to the police officer. Theory of the prosecution that he remained throughout unconscious is falsified by the evidence of other witnesses as also in light of the medical evidence and the theory of fearness which Yogesh Sharma develop in the Court evidence, is unacceptable. Yogesh Sharma (P.W. 9) and Sangeeta Sharma (P.W. 7) could not identify the two assailants who entered into their house having covered their faces by mask and adding two other accused persons namely Rajesh Sharma and Dharmesh Sharma by P.W. 9 appears to be a false implication. (10) Learned Additional Advocate General lastly argued that blood stained clothes, lathi and tangia were seized from the possession of the appellants on their disclosure statements, therefore, the same were incriminating against them. We note that according to the F.S.L. report, it is only said that the blood was there on the above articles but neither the origin nor the group of the blood could be determined. Therefore, it was not proved as to whether it was the human blood or it was the blood of the group of the deceased. The articles, which have been seized, are the common articles (clothes, lathi and tangia) which are found in every house in the village. Therefore, in absence of any other evidence, this evidence alone would not be sufficient to connect the appellants with crime in question. For the foregoing reasons, we are of the considered view that the conviction and sentences awarded to the appellants cannot be sustained. (11) ACCORDINGLY, the appeals are allowed. The conviction and sentences awarded to the appellants u/Ss. 302, 325, 460 and 120-B, IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are in jail since 21-10- 2002. (11) ACCORDINGLY, the appeals are allowed. The conviction and sentences awarded to the appellants u/Ss. 302, 325, 460 and 120-B, IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are in jail since 21-10- 2002. They be set at liberty, forthwith, if not required in any other case. Appeal allowed.