JUDGMENT The appellants are aggrieved by their conviction and order of sentence passed against them by learned Additional Sessions Judge in Sessions Trial No.177 of 1995. All the appellants have been found guilty and convicted under Sections 341, 379, 148, 302/149 of the Indian Penal Code. The appellant No. 3 Surai Mardi, in addition, has also been convicted under Section 323 of the Indian Penal Code. For the offences under Section 302/149 I.P.C. they have been sentenced to undergo life imprisonment; under Section 379 rigorous imprisonment for two years; under Section 148 rigorous imprisonment for one year and under Section 341 rigorous imprisonment for six months. Surai Mardi has been additionally sentenced under Section 323 to undergo rigorous imprisonment for three months. The sentences are to run concurrently. 2. The prosecution case, as disclosed in the Fardbayan of Bikram Mardi (P.W. 7), in brief, is that on 14.11.1994 at about 11 AM he got information that several persons including the appellants were harvesting the paddy crops grown by them (informant’s family) over the Plot No. 1352 and 1554 under Khata No. 37 nearby the crusher machine. On such information the informant along with his uncle Ramjit Mardi (deceased), cousin brother Asman Mardi (P.W.6) and Kartik Mardi (P.W.9) went there and saw that Madhav Mardi, Anant Mardi, Master Mardi, Surai Mardi, Dasrath Mardi, Daroga Mardi, Kanhu Soren along with 20-30 others were harvesting paddy crops from the said plots. They were severely armed with bow and arrows, sword, sickle and lathi etc. When the informant protested and accosted, the accused persons defied them. Madhav Mardi then exhorted the other accused persons to attack and finish the informant and others. Accused Anant Mardi was armed with sword, Master Mardi with tangi, Dasrath with bow and arrow, Madhav Mardi and Surai Mardi were armed with lathi and rests were armed with sickle (Hasuwa). When the accused persons rushed with their arms, the informant and others tried to escape and save their lives, but in the meanwhile Surai Mardi overtook the informant and gave two lathi blows on his head. The informant (Bikram Mardi) fell down on the ground. The accused Madhav Mardi and Dasrath Mardi then caught hold of Ramjit Mardi and Anant Mardi chopped off his neck with a sword blow. He threw the blood stained sword at the place of occurrence. The accused persons, thereafter, removed the harvested paddy crop. The informant (Bikram Mardi) fell down on the ground. The accused Madhav Mardi and Dasrath Mardi then caught hold of Ramjit Mardi and Anant Mardi chopped off his neck with a sword blow. He threw the blood stained sword at the place of occurrence. The accused persons, thereafter, removed the harvested paddy crop. According to the informant, the deceased Ramjit mardi had purchased the land in question from Ranga Mardi by a registered sale deed and had been in cultivating possession of the same. As usual he had grown paddy crop in the said land but the accused persons forcibly harvested the same and committed the said crime. 3. On the said fardbeyan a formal F.I.R. was drawn and the Police took up investigation. On completing investigation Police submitted chargesheet against the accused persons for the aforesaid offences. 4. The accused-appellants denied the charges and claimed to be tried. 5. In order to prove the charges against the accused person, the prosecution altogether examined seventeen witnesses. P.W. 2-Tuna Hansda, P.W.3-Thakur Hansda, P.W. 4-Huding Murmu and P.W.11 Bikram Mardi son of the deceased Ramjit Mardi were tendered by the prosecution. P.W. 1 Ratan Lal Kisku and P.W. 8 Lakhan Murmu are the seizure list witnesses prepared on seizure of 105 bundles of paddy crop – they proved their signatures Ext 1/1 and Ext ½ respectively. P.W. 14 Bibhushan Mahto and P.W. 15 Prasad Mahto are the witnesses to the inquest report (Ext-6) and proved their signatures as Ext 1/3 and 1/4 respectively. P.W. 12 is the witness to the seizure of blood-stained earth and blood-stained axe P.W.6 Asam Mardi, P.W. 9 Kartik Mardi son of the deceased Ramjit Mardi, P.W. 10 Bahadur Murmu, P.W. 7 Bikram Mardi-the informant – injured are the eye witnesses to the occurrence. P.W. 13 Dr. Satish Kumar Pathak had examined the injured Bikram Mardi and P.W. 16 Dr. Arun Kumar Gupta had conducted post-mortem of the deceased-Ramjit. The Investigating Officer was examined as P.W.17. 6. The accused persons in their examination under Section 313 took defence of the false implication. According to them no such occurrence took place. Story of their role is concocted and frivolous. One of them namely Narayan Mardi was on his duty in Block Development Office, Raj Nagar and was not even present in the village on that day. 6. The accused persons in their examination under Section 313 took defence of the false implication. According to them no such occurrence took place. Story of their role is concocted and frivolous. One of them namely Narayan Mardi was on his duty in Block Development Office, Raj Nagar and was not even present in the village on that day. D.W. 1-Laxmi Narain Gupta – then Nazir of Raj Nagar was also examined to prove Attendance Register marked Ext A and signature of Narayan Mardi Ext A/1 and that of the B.D.O. Ext A/1 in support of the said defence. 7. Learned trial court on conclusion of the trial mainly relied on the testimonies of P.W.6, P.W. 7, P.W. 9, P.W. 10 and the medical evidence of .P.W. 13 and P.W. 16 as also on the evidence of the Investigating Officer .P.W. 17 found the appellants guilty of the said charges and convicted them, as aforesaid. 8. The appellants have assailed their conviction and sentence on the following grounds : i) The Fardbeyan on the basis of which the prosecution was launched against the appellants, i.e. the statement of Bikram Mardi, in fact, is not a Fardbeyan. It has come on the record that the information regarding the occurrence was first given by Asman Mardi, which was recorded by the police in the Police Station and on that basis the Police had proceeded to the village where the said statement of Bikram Mardi was recorded. The actual fardbeyan of Asman Mardi has not been brought on record and the very basis of the prosecution is vitiated. The statement made by Bikram Mardi (P.W.7) at the village was subsequent one (as would be evident from the statement of Investigating Officer (P.W.17) made in paragraph-1) can be treated as statement under Section 161 of the Cr.P.C. The entire prosecution case is based on the statement of P.W. 7, which, in law, is not a Fardbeyan. The conviction and sentence of the appellants are, thus, liable to be set aside on that ground alone. ii)The prosecution witnesses could not prove the allegations made against the appellants. There are fatal contradictions in their statements regarding the place of occurrence, mode of occurrence, seizure(s), etc. and the same are not worthy of any credence. The conviction and sentence of the appellants are, thus, liable to be set aside on that ground alone. ii)The prosecution witnesses could not prove the allegations made against the appellants. There are fatal contradictions in their statements regarding the place of occurrence, mode of occurrence, seizure(s), etc. and the same are not worthy of any credence. All the material witnesses are related to each other and all are inimical to the appellants due to the land dispute and their testimony cannot be relied upon. iii)Though the P.Ws. have stated about presence of other persons, those independent witnesses have not been examined. The alleged sword used for chopping off the neck of the deceased, has not been produced and exhibited as admitted by the Investigating Officer. The same was also not sent for chemical examination. Adverse inference has to be drawn for withholding those evidences. iv)Out of the eight appellants, specific allegation has been made only against Anant Mardi, but even against him no legal evidence has been adduced to establish the charge. v)Laxmi Narayan Gupta, D.W.1 -an official of Block Development Office and an independent witness, proved that Narayan Mardi was on duty on that day during the relevant period, in the Block Development Office, which is 10 K.M. away, but the same has not been properly considered by learned court below. vi)The prosecution, though failed to substantiate the charges against the appellants, learned court below has taken contrary view and has erroneously passed the impugned judgment and order of sentence. 9. In order to appreciate the grounds taken in these appeals, it is necessary to discuss and consider the evidences adduced by the prosecution. 10. Out of seventeen prosecution witnesses, four witnesses i.e. P.Ws. 6, 7, 9 and 10 are said to be the eye-witnesses. 11. P.Ws.1 and 8 are the formal witnesses. P.W.1 has proved the seizure list (Exbt.-1); P.W.8 has proved his signature on the seizure list. 12. P.Ws.2, 3, 4 and 5 have been tendered and they have not stated anything worth mentioning. 13. P.W.6 is the son of the deceased and said to be one of the eyewitnesses. In paragraph-1 he has stated that Surai assaulted Bikram with Lathi and Anant had chopped off the neck of the deceased with sword while Dasrath and Madhav had caught hold of his father. They, thereafter, proceeded towards the field and removed the paddy crops. 13. P.W.6 is the son of the deceased and said to be one of the eyewitnesses. In paragraph-1 he has stated that Surai assaulted Bikram with Lathi and Anant had chopped off the neck of the deceased with sword while Dasrath and Madhav had caught hold of his father. They, thereafter, proceeded towards the field and removed the paddy crops. In paragraphs-4 and 5 he has stated that he, thereafter, met with several persons of the village, but he did not disclose the incident. He further stated that for the first time he had informed the Police about the occurrence. His statement was recorded in the police station, but the same, however, was not read over to him. The Police, thereafter, had come to the village with him. 14. P.W.7 is the informant. In paragraph-1 he has stated that he does not remember the date of occurrence. He has stated that Anant, after chopping off the head of his uncle, had thrown the blood stained sword at the spot. This witness has not supported the version of the F.I.R. that Dasrath and Madhav had caught hold of Ramjit. He also has not supported the prosecution version regarding removal of the harvested crops. This witness has stated that the Police came to the village and his statement was recorded there. That statement was read over to him and he had signed the statement. He has identified his signature on Exbt.-4 (Fardbeyan). His signature has been marked as Exbt.-1/1. In quick succession of his statement he contradicted in paragraph-6 about the recording of very fardbeyan. There he has stated that his statement was taken in the Police Station in presence of Asman who was there from before. He has also stated that no further statement was given by him. In paragragh-10 he has stated that Madhav alone had enmity with his uncle. In paragraph-22 he has stated that he was assaulted and pushed on the ground and that Ramjit was killed at the distance of about 300 meters from that place. In paragraph-24 he has said that the incriminating sword was handed over to the Police at the Police Station. In this paragraph he has contradicted the earlier statement and has said that Asman Mardi was not there when he reached to the Police Station. In paragraph-25 he has said that he reached the Police Station at about 5 PM. In paragraph-24 he has said that the incriminating sword was handed over to the Police at the Police Station. In this paragraph he has contradicted the earlier statement and has said that Asman Mardi was not there when he reached to the Police Station. In paragraph-25 he has said that he reached the Police Station at about 5 PM. Besides, the said notable contradictions, there are other contradictions in his statement. 15. P.W.-9, who has been projected as an eye-witness, has stated in paragraph-1 that Dasrath and Madhav caught hold of Ramjit and severed the neck of his father with sword. In paragraph-5 he has stated that he did not disclose about the said incident to any villager. He had told about the same only to one Tala (Tala has not been examined by the prosecution). In paragraph-14 he has stated that Asman had gone to Police Station but in paragraph-19 he has added that no other information was given to the Police. 16. P.W.-10 is also said to be an eye-witness. In paragraph-1 he has stated that Madhav and Dasrath caught hold of his uncle Ramjit. They pushed Ramjit on the ground and then Anant cut through and severed his neck with sword. In paragraph-6 he has stated that he has not seen any accused persons harvesting the paddy crops. He had stated before the Police that the accused harvested the paddy crops. In paragraph-14 he has stated about the scuffle and ‘mar-peet’ between the parties. This witness has shown his relationship with the informant as being the brother-in-law in paragraph-10 of his statement. 17. P.W.11 is said to be the son of deceased Ramjit, but he has not said anything worth mentioning. This witness was tendered by the prosecution. 18. P.W.12 has come to depose that blood stained eath and sword were seized in his presence and that he had put his signature on the seizure list. He has stated that the Police was present from before when he went to the place of occurrence at about 3 O’clock. 19. P.W.13 is the Doctor who examined the injuries of Bikram Mardi. In paragraph-4 he has stated that such injuries can also be caused by fall. 20. P.W.14 is a formal witness. He has proved his signature on the inquest report. P.W.15 has proved signature on the inquest report. 21. 19. P.W.13 is the Doctor who examined the injuries of Bikram Mardi. In paragraph-4 he has stated that such injuries can also be caused by fall. 20. P.W.14 is a formal witness. He has proved his signature on the inquest report. P.W.15 has proved signature on the inquest report. 21. P.W.16 is the Doctor, who had conducted the autopsy of the deceased Ramjit and prepared the post-mortem report. He has proved the post-mortem report-Exbt.3. 22. P.W.17 is the Investigating Officer. In paragraph-1 he has stated that he heard a floating rumour about the occurrence and then proceeded to the village. There, he recorded Fardbeyan of Bikram Mardi. He has proved the Fardbayan (Exbt.-4), inquest report (Exbt.-6) and seizure list of sword and blood stained earth (Exbt.-7). He has proved the formal F.I.R. as Exbt.-8. In paragraph-7 he has admitted that one report was earlier recorded, but the same has not been produced. He contradicts Asman (P.W.6) by saying that he had not gone to the village with him. In paragraph-10 he has stated that the sword and the blood stained eath were not sent for chemical examination. In paragraph-13 he has stated that he does not know Santhali language. He has further contradicted the version of P.Ws. in his statement made in paragraphs16 and 17. 23. On appraisal of the said evidences of the prosecution witnesses, we find that there are fatal contradictions in their testimonies regarding manner of the occurrence, recording of Fardbeyan, the alleged seizure, as also the removal of paddy crops. No independent witness has been examined in this case. Several persons are said to be present in the village but the incident was not disclosed by the informant or other P.Ws. said to be the eye witness. P.W. 9 has stated that he had told about the occurrence to one Tala, but said Tala has not been examined by the prosecution. 24. Besides that, there is a vital legal lacuna in the prosecution case. First statement (Fardbeyan) of Asman Mardi is said to be recorded in the Police Station. But the said Fardbeyan has been suppressed by the prosecution. The Investigating Officer has admitted the recording of the earlier information in the Police Station in his deposition. The same has not been produced. 25. First statement (Fardbeyan) of Asman Mardi is said to be recorded in the Police Station. But the said Fardbeyan has been suppressed by the prosecution. The Investigating Officer has admitted the recording of the earlier information in the Police Station in his deposition. The same has not been produced. 25. Section 154 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the Code) prescribes that “Every information relating to the commission of a cognizable offence, if given orally to an officer incharge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.” (emphasis supplied). 26. Sub-Section (2) of the said Section provides for giving a copy of the information as recorded under sub-section (1) of Section 154 of the Code forthwith, free of cost, to the informant. 27. Section 157 of the Code lays down the procedure for investigation. The provision casts a duty upon the Investigating Officer to forthwith send the report of the concerned Magistrate in order to keep him informed of the cognizable offences, so that he may be able to control the investigation and if required, to issue appropriate direction. 28. Section 161 of the Code provides for examination of witnesses by Police, the Section is reproduced below :- “(1)Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2)Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (2)Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3)The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.” 29. From the said legal provisions it is clear that there is distinction between the statement which is recorded as an F.I.R. and the statement recorded in course of investigation under Section 161 Cr.P.C. 30. If the Investigating Officer fails to record the first information given to him regarding commission of an offence and records subsequent statement and treats the same as first information and based his investigation on that subsequent information it gives rise to serious legal lacuna and investigation becomes tainted and doubtful. It is unsafe to rely on such statement and investigation which is not free from the possibilities of deliberation, consultation and concoction. Conviction founded on such statement/investigation is tainted and unsustainable. 31. In this case the first information was the statement of Asman Mardi, but the same has been suppressed. The prosecution was initiated on the basis of the statement of Bikram Mardi (P.W.7) taken in course of the investigation after lapse of several hours in the village when the police reached there after getting information given by Asman Mardi. 32. Learned Court below has miserably failed to take into consideration the vital legal aspects and has accepted the statement of P.W.7 -Bikram Mardi, as the Fardbeyan which, according to law, is a statement taken under Section 161 of the Code in course of investigation. 33. Learned court below has lost sight of the fact that most of the F.I.R. witnesses have shut their mouth at the time of their examination and said nothing about the occurrence. The witnesses, who have been produced as the eye-witnesses, have made contradictory statements as has been discussed about. The Investigating Officer has demolished the case of the prosecution by contradicting the statement of the informant and other material witnesses. 34. The witnesses, who have been produced as the eye-witnesses, have made contradictory statements as has been discussed about. The Investigating Officer has demolished the case of the prosecution by contradicting the statement of the informant and other material witnesses. 34. The testimony of the witnesses is full of doubts and that benefit of doubt must have been given to the accused persons. 35. In spite of the said legal infirmities in the prosecution case, learned trial court believed the same and erroneously held the appellants guilty of the said serious charges. 36. We are unable to get a ground to uphold the impugned judgment. 37. In the result, these appeals succeed and are, accordingly, allowed. The impugned judgment and conviction and the sentence of the appellants passed by the learned court below in S.T. No. 177 of 1995 are set aside. The appellant No. 1 Anant Mardi and appellant No.8 Madhav Mardi in Cr. Appeal No. 76 of 1998(R) and the appellant Dasrath Mardi in Cr. Appeal No. 115 of 1998(R) in custody, they are ordered to be set at liberty forthwith. The appellants No. 2 to 7 in Cr.Appeal No. 76 of 1998(R), who are on bail, are discharged from liabilities of their bail bonds.