Mrs. Poonam Srivastav, J. Appellants Mairaj Ahmad son of Subedar Khan and Shamsuddin son of Qamar Uddin have challenged the judgment and order dated 23.12.1980 passed by IInd Additional Sessions Judge, Aligarh in Session Trial No. 245 of 1973 connected with Session Trial No. 330 of 1973, convicting the appellants under Section 326/34 I.P.C. and sentencing them to eight years R.I. In fact three accused including the two appellants and one Abdul Hai faced the trial but Abdul Hai was acquitted as he was not named in the F.I.R. 2. Sri V.P. Srivastava, Senior Advocate, assisted by Sri Brijesh Sahai Advocate appears for the appellants and learned A.G.A. for the State. Before embarking on the facts and evidence of the case, a brief history of the Session Trial which was initially conducted in the Court of the then IVth Additional Session Judge, Aligarh Sri B.N.Mohale recorded the evidence and trials were completed. The entire records of the two session trials were taken home by Sri B.N. Mohley but they were lost from his house and, therefore, judgment was not pronounced. A long hunt for the record of two session trials was conducted but to no avail and, therefore, the judgment was not pronounced. Subsequently vide order dated 11.11.1974 the trials were transferred to the court of Sri R.R. Agrawal, the then IInd Additional Session Judge, Aligarh for denovo trial. This order was challenged by the accused in Criminal Misc. Writ Petition No. 6179 of 1974 which was dismissed by this Court on 6.2.1975. Since Sri Agrawal was transferred, two session trials came to the court of Sri H.P. Pathak, Additional Session Judge, Aligarh. There was a request on behalf of the accused that these trials be conducted in the court of Sri R.R. Agrawal which was once again not accepted. Meanwhile, Sri H.P. Pathak was also transferred. Finally the trials came up in the court of Sri R.C. Verma. He took over charge. The accused once again filed a Criminal Misc. Writ Petition No. 3360 of 1977 which was dismissed on 5.7.1977. Previously after institution of the said writ petition, proceedings were stayed but subsequent to the vacation of the stay order, Sri R.C. Verma proceeded with the trial, charges were re-framed and two session trials were consolidated vide order dated 7.9.1977. 3. The prosecution in support of its case examined 18 witnesses. Previously after institution of the said writ petition, proceedings were stayed but subsequent to the vacation of the stay order, Sri R.C. Verma proceeded with the trial, charges were re-framed and two session trials were consolidated vide order dated 7.9.1977. 3. The prosecution in support of its case examined 18 witnesses. PW-1 Risal Singh proved missing of the record. Mohd. Naseem Khan PW2 is first informant, PW-3 Aftab Ahmad has proved the motive. PW-4 Ram Babu Sharma is the record keeper. PW-5 Head Constable Mahavir Singh proved G.D. regarding arrest of Mohd. Hai. PW-6 Abuzar injured witness, PW-7 Fateh Uddin Khan is an eye witness, nephew of the deceased and also alleged to be accompanying the deceased on rickshaw. PW-8 H.P. Hidayat Ali Khan scribe of the report, PW-9 Dr. J.P. Agrawal examined injuries of the injured. PW-10 Dr. Hasan eye witness. However, he has been declared hostile. Dr. J.P. Goel PW-11who conducted post mortem. PW-18 Sri H.P Dhawan is the Investigating Officer. The rest of the witnesses PW-12 to PW-17 are formal witnesses. The occurrence is alleged to have taken place on 26.4.1973 at 8.30 P.M. and the F.I.R. was lodged on the same date at 9.47 P.M. at Police Station Civil Lines by Mohd. Nasim Khan PW-2. The place of occurrence is Kothi Chamanistan situated at a distance of six furlongs from the police station. The deceased in the instant case is one Mudiruddin. Post mortem was performed on 27.4.1973 at 10.25 A.M. by Dr. J.P. Goyal PW-11. 4. The defence examined six witnesses. Krishna Murari Lal Advocate Clerk DW-1, Abdul Hamid DW-2 challenged the arrest of Abdul Hamid, DW-3 Wasin Uddin, DW-4 Bal Kishan and DW-5 Rama Shanker are light Inspector and DW-6 Onkar Singh is Advcoate clerk. The facts of the case are that the accused Shamsh Uddin is maternal uncle of accused Mairaj Ahmed who is employed in the University. Deceased Mudiruddin Khan originally belonged to Qayamganj of district Farrukhabad, but since quite some time he had been residing in Zohra Bagh, Police Station Civil Lines, Aligarh. His house was at a distance of about a furlong from the house of Mohd. Nasim Khan PW-2 who was well acquainted with each other. The accused had good relations even with Aftab Ahmed PW-3 Smt. Shaukat Musharraf Jahan was the sister of Aftab Ahmed and she owned a house in Mohalla Tantanpara, Aligarh city. His house was at a distance of about a furlong from the house of Mohd. Nasim Khan PW-2 who was well acquainted with each other. The accused had good relations even with Aftab Ahmed PW-3 Smt. Shaukat Musharraf Jahan was the sister of Aftab Ahmed and she owned a house in Mohalla Tantanpara, Aligarh city. Accused Mairaj Ahmed lived as a tenant in her house. There was litigation between accused Mairaj Ahamed and sister of Aftab Ahmed and it was carried upto Hon'ble High Court. A decree was passed in favour of the sister of Aftab Ahmed. In execution of the decree, a commissioner was appointed for 'Dakhal Dehani'. Aftab Ahmed, his brother Sultan Ahmed and his friend Mudir Ahmed deceased used to do pairvi in that case. Dakhal was taken on the spot by ejectment of Mairaj Ahmed, but he illegally re-occupied the house by force along with Shamsh Uddin. The deceased and Aftab Ahmed went to the police and report was lodged against both these accused through Abdul Ghaffar who had given information to Aftab Ahmed about re-occupation of the house. This report was lodged one or two days prior to the murder. Aftab Ahmed along with the deceased took the police to the house, but the accused persons had run away. On that account, these two accused bore enmity against Aftab Ahmed and the deceased. 5. Fateh Uddin Khan is the real nephew of the deceased, and at the time of occurrence he was living with the deceased in his house in Zohra Bagh because Fateh Uddin was University student studying in pre-University Course. On 26.4.1973 at about 8-30 P.M. the deceased proceeded from his house with Fateh Uddin on a rickshaw of one Yasin Khan in order to pay a visit to Nasim Khan PW-2. At the time of occurrence, the deceased along with his nephew had reached near Zahir Manzil in the rickshaw. There was light of electricity in that street as there are two poles of electricity, on one of which there was electric bulb and on the other there was electric rod. They met accused Mairaj Ahmed and Shamsh Uddin along with one unknown companion who was having a beard. Accused Mairaj Ahmed called upon the deceased to get down from the rickshaw. The deceased as well as Fateh Uddin got down from the rickshaw. They met accused Mairaj Ahmed and Shamsh Uddin along with one unknown companion who was having a beard. Accused Mairaj Ahmed called upon the deceased to get down from the rickshaw. The deceased as well as Fateh Uddin got down from the rickshaw. Just then the bearded man caught hold of the deceased, and both Mairaj Ahmed as well as Shamsh Uddin made assault with knives. An alarm was raised on which Dr. Ahsan, Abuzar and Nasim Khan rushed to the place of occurrence. Abuzar tried to rescue the deceased and in that process received knife injury in his finger. Both the accused gave knife blows to the deceased who fell down. Accused Mairaj Ahmed and Shamsh Uddin and their bearded companion ran away. Their faces were clearly seen by the witnesses in electric light. The witnesses did not know the bearded person from before. When the deceased fell down on the ground, blood from his injuries had fallen on the g round. Witnesses then took injured Mudir Uddin in the rickshaw to Medical College. By the time they reached Medical College Hospital, Mudir Uddin breathed his list. The hands and clothes of Fateh Uddin had become blood-stained. 6. Mohd. Nasim prepared written report of the occurrence in Urdu language, copy of which is material Ex. 1. The original report is no longer available as it was filed in the Sessions Trials in the court of Sri B.N. Mohley and was lost due to theft of files. Mohd. Nasim had presented the report in the police station on the basis of which F.I.R. was recorded by PW-8 clerk-constable Hidayat Alii at 9-47 P.M. vide F.I.R. No. 26, and copy of the same is Ex. Ka-2. A case in the general diary was registered and investigation was taken up by S.H.O. Sri H.P. Dhawan. Sukhbir Singh PW-13 was posted as S.I. in P.S. Civil Lines on that date. The investigating officer deputed him to hold the inquest. He reached Medical College where he found the dead body. After appointing Panches, he prepared Panchayatnama Khaka Nash and challan Nash, all of which have since been lost due to theft of files in court. He sealed the dead body and handed over the same to constables Ummed Singh and Ishwar Chand with relevant papers. These constables reached the dead body in the mortuary, and Dr. J.P. Goel PW-11 performed post-mortem examination on 27.3.1973. He sealed the dead body and handed over the same to constables Ummed Singh and Ishwar Chand with relevant papers. These constables reached the dead body in the mortuary, and Dr. J.P. Goel PW-11 performed post-mortem examination on 27.3.1973. 7. On external examination, Dr. J.P. Goel found that the deceased was about 55 years old with well-built body and time since death was about half a day. In his opinion it was possible that death took place in the night between 26/27.4.1973 around 8.30 P.M. Rigormortis had passed off from the neck but was present in the rest of the body. He found the following ante-mortem injuries:- 1. Abrasion 1/3" x 3/10" over left side of nose in the middle. 2. Stab wound 3/4" x 1/3" x chest cavity deep, tailing off towards right side over the chest in front, 2 1/2" above right nipple, directed backwards and medially; margins were clean cut. 3. Incised wound transverse parallel to the ribs 2 3/4" x 1/2" x chest cavity over right side chest, 3 1/2" below right axila, tailing of towards right side. Margins were clean cut. 4. Abrasion 1" x 1/4" over epigastric fossa region. 5. Linear abrasion 1 1/4" over left fore-arm. 6. Linear abrasion 1 1/2" over left hand back. 7. Abrasion 1/2" x 1/3" over left leg in front and middle. 8. Abrasion 1/3" x 1/4" over back of root of right thumb. There were corresponding cuts in right half of Baniyan in relation to injury Nos. 2 and 3. 8. On internal examination the following dates were found:- There was extra vasation of blood in soft tissues of right side chest wall in relation to injuries 2 and 3. There was a wound through and through in intercostal space between second and third right rib which was cut. There was penetrating wound through inner one-third portion of right upper lobe of lung in relation to injury no. 2. Right side chest cavity contained about 2 pints of clotted and fluid blood. Right side 9th rib had been cut near sternum in relation to injury no. 3. Diaphragum had been cut on right side on upper surface in relation to injury no. 3. Stomach contained about 4 ounces of dirty fluid. Intestines contained some gas and faecal matter. In the opinion of doctor, death was due to shock and haemorrhage resulting from the injuries; injuries no. 3. Diaphragum had been cut on right side on upper surface in relation to injury no. 3. Stomach contained about 4 ounces of dirty fluid. Intestines contained some gas and faecal matter. In the opinion of doctor, death was due to shock and haemorrhage resulting from the injuries; injuries no. 2 and 3 were sufficient to cause death in the ordinary course of nature. Injuries had been caused by some sharp-edged and pointed weapon like knife, and the abrasions were possible from friction against some hard substance. The shirt, Baniyan, pant and underwear of the deceased were put in a sealed bundle and handed over to the constables concerned. The post-mortem report was duly drawn up and its copy is Ex. Ka-4. 9. Abuzar was sent by the Investigating Officer for medical examination. He was examined by Dr. J.K. Agarwal at 2.00 A.M. on the night between 26/27.4.1973, and the following injury was found:- Abrasion 1/10" x 1/10" on the back of right little finger at the last inter-phalangeal joint; copy of injury report is Ka-3. The Investigating Officer Sri H.P. Dhawan PW-18 started investigation soon after the case was registered in general diary at serial no. 46, copy of which is Ex. Ka-7. In the same night he examined witnesses Nasim Khan, Mohd. Ahsan, Abuzar etc. This Abuzar is the same person who was sent for medical examination and was examined by Dr. Agarwal. He made spot inspection and prepared site plan. Inspection note was recorded in the case diary also. At the place of occurrence he found blood on the ground from where he collected blood-stained and ordinary earth; the same were put in separate tin containers and were sealed. Investigating Officer reached Medical College also where Panchayatnama had been completed by S.I. Sukhbir Singh, there he recorded the statements of Fateh Uddin and Yasin Khan witnesses. Fateh Uddin produced his blood-stained clothes which were sealed and Fard was drawn up. The rickshaw was found to have been washed recently and so there was no blood on it. The blood stained articles were deposited in the police station with seals intact and entry in general diary was made vide copy Ex. Ka-9. Search for the accused persons was made but without any success. On the same day, Nalni Kant witness was examined. 10. The blood stained articles were deposited in the police station with seals intact and entry in general diary was made vide copy Ex. Ka-9. Search for the accused persons was made but without any success. On the same day, Nalni Kant witness was examined. 10. The argument advanced on behalf of the accused is that the basis of the entire prosecution story which is the F.I.R., has not been proved. Admittedly, the F.I.R. given by the complainant was written in Urdu. This is admitted by him but since the record was lost, original F.I.R. was not available. PW-8 Hidayat Ali stated that the F.I.R. on record is in Hindi and was translated and written in handwriting of one Shiv Narayan who has not been examined, therefore, the submission is that no reliance can be placed on the First Information Report for want of proof in accordance with law. Sri V.P. Srivastava, Senior Advocate has placed Section 63 of the Evidence Act in support of his argument that in the event, original F.I.R. was lost and copy produced was in a different script that is Hindi which was according to the prosecution admittedly not the original. The F.I.R. on record was in the handwriting of Shiv Narayan who has not come forward to prove the F.I.R. Thus the F.I.R. produced during trial was not primary evidence. Section 63 of the Evidence Act deals with the secondary evidence which defines; (1) Certified copies given under the provisions of the Act, (2) Copies made from the original by mechanical process which in themselves show accuracy of the copy and copies compared with such copies, (3) Copies made from or compared with the original, (4) Counterparts of documents as against the parties who did not execute them and, (5) Oral accounts of the contents of a document given by some person who has himself seen it. 11. In the instant case, Sri Srivastava has emphasized that neither original was there nor Hindi version was got compared from the original, not even the person who had translated in Hindi was examined who could come forward and depose that he had compared the translated copy with the original. Besides the G.D. copy at the police station was also not brought and produced before the court. The explanation for not producing the G.D. was that on 27.2.1998 G.D. record of the concerned police station was weeded out. Besides the G.D. copy at the police station was also not brought and produced before the court. The explanation for not producing the G.D. was that on 27.2.1998 G.D. record of the concerned police station was weeded out. Sri Srivastava has emphasized that initial order for denovo trial was approximately five years before i.e. on 11.11.1974 and, therefore, it was the duty of the prosecution to ensure preservation of the G.D. record at the police station specially when the fresh trial was ordered because the entire record was lost. Nothing has been done and conviction is recorded very casually accepting the translated copy of the F.I.R. without even making an effort to examine the said translator i.e. Shiv Narayan in the instant case. 12. Sri V.P. Srivastava has drawn my attention to the illustrations of Section 63(c) of the Evidence Act which is as under:- "(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original." H.C. 128 Sri Hidayat Ali Khan, Reader C.O. Banla, S.S.P. Office was examined during the trial who has come forward to prove the F.I.R. and stated that the original G.D. is not before him. In cross examination he has admitted that the original report and register chik are also not before him and Ex. Ka-2 which he has proved, is in the handwriting of Shiv Narayan. He was confronted with his statement of the previous trial, record of which was lost and he has expressed his inability to give any detail. In this context, learned counsel has placed the statement of PW-2 who has stated that the original report was in Urdu script though he has tried to say that whatever was read out in Hindi version was the same what he has stated in the report, but once again it has been pointed out by the learned counsel appearing on behalf of the appellant that neither it fulfills the requirement of Section 63 (3) and also illustrations (c) of the Act and therefore, the F.I.R. is not worthy of reliance whatsoever. In this context, learned counsel has cited a decision of the Apex Court in the case of State of Kerala Vs. Anilchandran @ Madhu and others, 2009(2) JIC, 525 (SC). In this context, learned counsel has cited a decision of the Apex Court in the case of State of Kerala Vs. Anilchandran @ Madhu and others, 2009(2) JIC, 525 (SC). The Apex Court has not accepted the F.I.R. for the reason the corner of the original report bearing signature of the first informant was torn. The submission is that the genesis of the incident is not proved. It is immaterial whether the defence has been able to substantiate his evidence or not. No benefit can be given to the prosecution and no inference could be drawn against the accused. 14. The next submission is regarding injured witness Abuzar PW-6 who is said to have received injuries at the time of incident. Specific case of the prosecution is that he had received knife injury. PW-6 has also specifically stated in his examination-in-chief that while trying to save the deceased he received knife injury on his finger and his injuries were also examined in the hospital itself on the same night. Dr. J.K. Agarwal PW-9 was one who examined his injuries. Learned counsel placed his cross examination, he has admitted that the injury of PW-6 can be self suffered and it cannot be caused by a knife. He has gone to the extent of submitting that knife injury will be an incised injury or a linear abrasion. It is submitted next that the injured has further stated in his cross examination that when he had gone to the Medical College and he came to know that the deceased has died he came home, thereafter a constable came to call him at 9.30 P.M. and he took him to the place of occurrence where the Investigating Officer was present. Neither Fateh Uddin was present nor rickshaw wala Yasin was present at the place. He has also stated that no blood stained earth was taken from the place of occurrence and thereafter he left at 10 or 10.30 P.M. and arrived for examination of his injuries at 11.00 P.M.. His injuries were examined in between 12.30 and 1.00 A.M. 15. Sri V.P. Srivastava has tried to discard the evidence of injured witness for the reason that he had not received injuries as alleged by the prosecution. Besides that he is working in the Medical College and he had gone on a dinner invitation of one Yusuf Sahab and while returning he witnessed the occurrence. Sri V.P. Srivastava has tried to discard the evidence of injured witness for the reason that he had not received injuries as alleged by the prosecution. Besides that he is working in the Medical College and he had gone on a dinner invitation of one Yusuf Sahab and while returning he witnessed the occurrence. Yusuf Sahab was living in Kothi Sabstan Manzil and not Chamnistan which is the place of occurrence. His reply to a specific question was also pointed out by Sri Srivastava where he has admitted that it was a dark night and not moon light. He further admitted that there was very less light and he did not know the witnesses since before. In support of the argument while trying to discard the evidence of injured witness and presence of light, learned counsel has placed notes of local inspection conducted by IInd Additional Session Judge, Aligarh on 7.12.1980 between 10.00 A.M. and 11.00 A.M. along with counsel for State Sri Sobaran Singh and counsel for the accused Shiv Hari Singhal and F. Rahman. The map produced by counsel on behalf of the accused was almost confirmed after due verification and according to the said local inspection report, it was substantially reproduced and correct position on the spot was found. It was also seen that the boundary of Zaheer Manzil. From the passage there is 13 ft. 7" between southern gate of Zaheer Manzil and that point is in front of the passage of Kothi of Mohd. Nasim. Thus it was found that total length of passage is 220 ft. and if it has to cover the area from Verandah of Mohd. Nasim, one has to walk a distance of 220 ft. to come to the Pucca road to Zaheer Manzil. It was also found that there was no electricity poles. There is a point of electricity light outside the portico of Mohd. Nasim from the place where a rod was burning on the electric pole and another bulb was burning at a distance of 142 ft. In between there is a boundary and an old hedge. It was also found that there was no electricity poles. There is a point of electricity light outside the portico of Mohd. Nasim from the place where a rod was burning on the electric pole and another bulb was burning at a distance of 142 ft. In between there is a boundary and an old hedge. On this basis, learned counsel has tried to point out that according to the prosecution, the assailants had come, given knife blows and ran away, it cannot be possible for anyone to witness the occurrence specially when the first informant who was in the Verandah to Kothi Chamnistan has to cover a long distance to arrive at the place of occurrence. The first informant has admitted in his cross examination that his vision was less and he used to bear dark glasses even at night which was bifocal and on the basis of these facts and circumstances it is submitted that PW-2 who has given an eye witness account in the F.I.R., cannot be believed. Besides, he has not even proved the F.I.R. and, therefore, there is no evidence whatsoever to upheld the conviction. Statement of PW-2 is once again placed viz a viz spot inspection to substantiate his argument that there was no occasion for the complainant to have recognized the assailants specially when he had a bad vision. 16. Learned counsel has tried to further substantiate his argument that stomach consists of four ounces of dirty fluid. Small intestine contains some gas and faecal matter and large intestine contains some gas and faecal matter. These contents do not tally with the time of occurrence 8.30 P.M. The submission is that in fact the occurrence has taken place at a later time and not as alleged by the prosecution. Besides, the time of lodging of the F.I.R. is 9.47 P.M. whereas the injured witness has admitted that he had gone to Medical College with the deceased, came back to his house and thereafter called by constable at 9.30 P.M. when he went to the place of occurrence. Since the F.I.R. has come in existence only at 9.47 P.M. the statement of PW-6 injured witness does not stand to reason and also do not tally with the time claimed by the prosecution. Sri V.P. Srivastava stated with great emphasis that the time alleged by the prosecution is manipulated. Since the F.I.R. has come in existence only at 9.47 P.M. the statement of PW-6 injured witness does not stand to reason and also do not tally with the time claimed by the prosecution. Sri V.P. Srivastava stated with great emphasis that the time alleged by the prosecution is manipulated. The F.I.R. is anti-timed and witnesses have not given out a correct version. Sri V.P. Srivastava has lastly argued that in fact PW-3 Aftab Ahmad who has come forward to establish the motive is a witness, cannot be relied upon. He happens to be brother of Shaukat Musharraf Jahan who was married to one Musharraf. He was the original landlord of the accused appellant Mairaj. He used to live in his house. Musharraf had huge property and in those good old days his property fetched approximately Rs. 6,000-/,000/- as rental. He married sister of PW-3 Shaukat Jahan at an old age after he was retired from police service. At the time Musharraf married Shaukat Jahan, she was 20 years of age. He died at the age of 90-93 years. He had a son from his first wife who was subsequently declared an imbecile. He had created a waqf Alal Aulad. Litigation had started during life time of Musharraf. His son died before the incident and Shaukat Jahan also died thereafter. Thereafter accused Mairaj was also litigating with Aftab for the tenanted accommodation where he was living and it is also submitted that the deceased Mudeeruddin was an accused in a murder case relating to an incident that took place in Kaimganj and he was given a capital sentence but finally his Excellency the President of India commuted the sentence to life imprisonment. In fact it has also come in evidence of PW-2 that the property of Musharraf which was a waqf Alal Aulad, was previously looked after by Aftab, now the University is taking care being the beneficiary. These facts have been emphasized to elaborate the argument that it was the property of Musharraf which came to the sister of PW-3 Aftab and after her death was in the hands of the University and Aftab was vying for it. These facts have been emphasized to elaborate the argument that it was the property of Musharraf which came to the sister of PW-3 Aftab and after her death was in the hands of the University and Aftab was vying for it. The accused was in occupation despite objection by owners and had reoccupied subsequent to his ouster from the accommodation and his false implication is only with a view to oust him from the property and the deceased was killed by some one else in the darkness of the night who himself was a hardcore criminal. 17. Learned A.G.A. has disputed the arguments of Sri V.P. Srivastava and has supported the prosecution case and judgment of the learned Session Judge. In reply to the first argument for non reliability of the F.I.R. and relating to Section 63 of the Evidence Act, Sri Jain learned A.G.A. has placed Section 65 of the Evidence Act which only enumerates condition and the facts and circumstances for accepting secondary evidence. Section 65 of the Evidence Act is quoted below:- "65. In reply to the first argument for non reliability of the F.I.R. and relating to Section 63 of the Evidence Act, Sri Jain learned A.G.A. has placed Section 65 of the Evidence Act which only enumerates condition and the facts and circumstances for accepting secondary evidence. Section 65 of the Evidence Act is quoted below:- "65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) when the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it, (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India], to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. The submission of the learned A.G.A. is that since the original has been admittedly destroyed and lost therefore, the F.I.R. was rightly accepted by the court below as secondary evidence. Besides, it was also proved by PW-2. The next argument is that presence of injured witness PW-6 cannot be doubted and presence of dirty fluid in the stomach as shown in the post mortem report is sufficient to establish that the deceased had taken food quite some time before. This alone cannot dislodge the prosecution case. Besides, time and place of occurrence, weapon of assault and participation of the accused are all substantiated by evidence of the witnesses who were known and though there might be less of light but still sufficient for the witnesses to have recognized the known assailants. Besides, the F.I.R. was also prompt and, therefore, the argument of Sri V.P. Srivastava is without any basis and the judgment of conviction is liable to be upheld. 18. After hearing the respective counsels at length and considering the entire facts and circumstances and also evidence placed before me, it is surprising that the State agency though challenged all the writ petitions as well as application under Section 482 Cr.P.C. on behalf of the accused challenging the order dated 11.11.1974 for denovo trial but did not even make slightest effort to preserve the record or to procure the record from other source which was admittedly not lost with the record, from the house of the learned Sessions Judge. The G.D. was weeded out after five years of the order of the denovo trial. Besides, copy of the F.I.R. sent to the concerned authorities after the murder was also not procured despite order of denovo trial was passed approximately within a period of one year of the incident. If the copies of the original F.I.R. could not be procured then at least Shiv Narayan who had translated the Urdu script in Hindi should have been examined and sufficient requirement of Evidence Act was to be fulfilled. If the copies of the original F.I.R. could not be procured then at least Shiv Narayan who had translated the Urdu script in Hindi should have been examined and sufficient requirement of Evidence Act was to be fulfilled. In the case of State of Kerala Vs. Anilchandran @ Madhu and others (supra) the Apex Court had taken a view against the State only when small portion of the F.I.R. was torn which contained the signature of the informant. In the present case, authenticity of the F.I.R. cannot be accepted in its totality. The version of the F.I.R. is a statement at the first instance and merely saying that the F.I.R. on record is a true translation, is not sufficient, specially when the claim of defence is that prosecution has changed the statements of witness in the trial which was conducted for a second time. The prosecution has also not tried to offer an explanation for not preserving of original G.D. at the police station and weeded it out immediately before the commencement of the denovo trial. The F.I.R. is the very basis of the prosecution case and I cannot loose sight of the fact that its proof is essential. The objection raised by the learned counsel cannot be brushed aside. It is true that one of the eye witness has been declared hostile. The other witness who happens to be injured witness, his presence could not be negated on the face of injuries received by him in the incident. But I cannot overlook the positive assertion of PW-9 Dr. J.K. Agarwal that the injuries were not caused by sharp edged weapon and also can be self inflicted. Besides, the other anomalies pointed out by learned counsel appearing on behalf of the appellants is that the statement of Abuzar cannot be accepted in its totality. The rickshaw puller was not examined and the other witness PW-2 first informant has admitted to have reached a long distance in a dark night, in almost no light with a defective vision and thus is hardly convincing. I am also unable to believe the motive part as given out by PW-3 Aftab Ahmad. The only witness that remains is PW-7 Fateh Uddin Khan who was accompanying the deceased in a rickshaw. I am also unable to believe the motive part as given out by PW-3 Aftab Ahmad. The only witness that remains is PW-7 Fateh Uddin Khan who was accompanying the deceased in a rickshaw. I am in agreement with the submission of the learned counsel that since chance witness Abuzar received injuries in the incident and person sitting next to the deceased on the rickshaw did not even get a scratch is beyond imagination, specially this being a night incident, it is doubtful whether he was accompanying the deceased or not. The defence examined six defence witnesses, light inspectors examined on behalf of the accused have clearly stated that there was no light on the said date and two advocate clerks DW-1 and DW-6 have come forward to prove the register and statements given by the witnesses in the previous trial to substantiate that they have deviated from the original statement for obvious reasons. However, I do not intend to embark on the question of missing of the record but it is no doubt a situation where the prosecution evidence as well as the defence evidence has to be examined with great circumspection, caution and care. Since the very origin of the prosecution story is not established, the statement of the injured witness do not inspire any confidence coupled with the fact that PW-2 who is an old man with bad eye sight. Thus the evidence adduced in support of the prosecution case cannot be said to be sufficient to uphold the conviction. I am in agreement with the submissions of the learned counsel that the presence of injured witness is not beyond doubt and can not be accepted blindly. The prosecution has introduced a chance witness and also claimed to be a witness who has received injuries in the incident but the doctor has expressed his views regarding his injuries and, therefore, appear to be full of suspicion. I am of the view that it is not safe to uphold the conviction of the accused. 19. In view of what has been stated above, the judgment and order dated 23.12.1980 passed by the IInd Additional Sessions Judge, Aligarh in Session Trial No. 245 of 1973 connected with Session Trial No. 330 of 1973 is set aside. The order of conviction and sentence are set at naught. The appeal is allowed. The appellants are acquitted. They need not surrender. The order of conviction and sentence are set at naught. The appeal is allowed. The appellants are acquitted. They need not surrender. Sureties are discharged.