Judgment This appeal has been preferred against the Judgment dated 2.12.1994 passed by Sri Mahesh Prasad Tiwari, the learned 1st Addl. Sessions Judge, Dumka in Sessions Case No. 238 of 1986, whereby the appellant no.2 Rewati Layak has been convicted for offence under Section 304 (Part-1) of the Indian Penal Code and sentenced him to undergo R.I. for ten years and he has further convicted under Section 148 of the IPC and sentenced for R.I. for 2 months. Appellants Nos. 1, 4, 5, 6, 7 namely Atul Layak, Shisher Layak, Subodh Layak, Sarat Layak and Uttam Layak have been convicted under Sections 323 and 147 of the I.P.C. and sentenced to R.I. for 2 months and one month respectively and the appellant nos. 3, 8, 9, 10 namely Dhiran Layak, Bishun Layak, Piru Layak and Ashish Kumar Dutt have been convicted under Section 147 of the I.P.C. and sentenced to R.I. for one month. 2. The brief facts of the case is that the informant stated in his fardbeyan that on the day of occurrence i.e. 8.5.84 he was taking rest in his Veranda after coming from the court when all the ten accused arrived there armed with Lathi, Sabal and Katari and started uttering in filthy language and rushed to the informant to assault him. The informant ran to his house and closed the door. The accused had broken the door and dragged out the son of the informant. The accused Rewati Layak gave a Sabal blow on the head of Rabindra Nath Dey (the informant's son) who immediately fell down sustaining serious injury on his head. The informant, his wife and daughters also came there to rescue but they all were assaulted and injured by these accused. On "hulla" several villagers came there, seeing them, the accused persons fled away from that place. While they were fleeing away, they thrown stones to the house of the informant result of which several inmates of their house were also injured. Rabindra Kumar Dey son of the informant died in the Hospital. 3. In this case the prosecution has examined 10 witnesses amongst them P.W. 5 is the informant, P.W. 4 is his wife, P.W. 1 is his son and P.Ws. 6 and 7 are his daughters. P.Ws. 8 and 9 are the Police Officers who investigated the case. P.W. 10 is a formal witness. 3. In this case the prosecution has examined 10 witnesses amongst them P.W. 5 is the informant, P.W. 4 is his wife, P.W. 1 is his son and P.Ws. 6 and 7 are his daughters. P.Ws. 8 and 9 are the Police Officers who investigated the case. P.W. 10 is a formal witness. P.W. 2 is tendered witness and P.W. 3 has been declared hostile by the prosecution. Admittedly not a single independent witness was examined by the prosecution. 4. Mr. Jai Prakash, the learned Sr. Counsel appearing for the appellants has contended that P.W.10 has stated in his evidence that Chowkidar Khoku Mahto has given information about the occurrence to the police station and after which the Daroga came to the prosecution side. Therefore, the information given by the Chowkidar was the real earlier version of the occurrence which has been suppressed. Therefore, the fardbeyan of the informant (Exhibit-2) cannot be accepted as the First Information Report and to support of his contention, he has cited a decision of the Hon'ble Patna High Court reported in 1988 B.B.C.J. Page 212 [: 19.88 PLJR (NOC)7] the case of Basir Mian & Others vs. State of Bihar & Others in which the Hon'ble High Court has held: "Cr.P.C. Section 154.-Information at P.S.-I.O. proceeding for investigation-During investigation statement of the informant recorded-This being not the earliest statement cannot be treated as F.I.R.-Such a statement is hit by Section 162". Para-14 "Para-14...Thus as laid down under Section 162 Cr.P.C. any statement recorded in course of police investigation shall be used only for a limited purpose i.e. only for the purpose of contradicting a witness and Section 162 Cr.P.C. clearly excludes the First Information Report recorded under Section 154 Cr.P.C. In the circumstances mentioned above, the statement of the informant Indradeo Singh (P.W. 10) as contained in Ext. 1, cannot be treated as an information as contemplated under Section 154 Cr.P.C. and it is to be held that the aforesaid statement was recorded in course of police investigation and hence the same can be used for the limited purpose as indicated above". 5. 1, cannot be treated as an information as contemplated under Section 154 Cr.P.C. and it is to be held that the aforesaid statement was recorded in course of police investigation and hence the same can be used for the limited purpose as indicated above". 5. Further it is submitted that the statements of the informant (Exhibit-2) recorded in this case at 10.00 A.M. on 9.5.84 but the F.I.R. reached to the Court of C.J.M. on 11.5.84 and this inordinate delay in reaching the F.I.R. from the Police Station to the Court of C.J.M., has not been explained by the prosecution. He has cited a decision of the Division Bench of the Hon'ble Patna High Court decided in case of Sanjay Singh @ Pappu vs. State of Bihar reported in 1993 B.B.C.J. 40 in which the Hon'ble Court has held:- ''F.I.R. alleged to have been recorded at 9.30 A.M. on 1.4.89 and dispatched through special messenger reaching to the Magistrate on 3.4.89 highly doubtful and. delay appears to have been fully utilised in giving shape to prosecution". 6. The next point argued by Mr. Jai Prakash that the appellant no. 3 Dhiren Layak, the appellant no. 2, Revati Layak and some other members of their family had been assaulted by the Informant and his family members for which Raneshwar P.S. Case No. 36 of 1984 had also been registered. Exhibit-A is the fardbeyan of the Dhiren layak and Exhibit-B is formal F.I.R. of the said case. Exhibits-D, D/a, D/b and D/c are injury reports of Revati Layak (appellant no. 2), Dhiren Layak (appellant no. 3), Maheshwar Devi and Atul Chandra Layak (appellant no. 1) which have issued by D.W. 1 Doctor Shyam Sunaar Daruka who had examined those victims. The I.O. of this case who is P.W 9 has also admitted in his evidence that he had recorded the said fardbeyan of Dhiren Chandra Layak and on the basis of which Raneshwar P.S. Case No. 36 of 84 has been registered and B.N. Singh (P.W. 8) had noted the injuries on the persons of those victims (accused) and the said injury notes are Exhibits-C to CI 3. Mr. Prakash has further contended that the injury report Exhibit-D shows that the victim Rebati Layak (appellant no. 2) had sustained the following injuries:- "(i) Stitched wound 6" long over the middle of the scalp in the anterior part. Mr. Prakash has further contended that the injury report Exhibit-D shows that the victim Rebati Layak (appellant no. 2) had sustained the following injuries:- "(i) Stitched wound 6" long over the middle of the scalp in the anterior part. (ii) Abrasion reddest-blue 2" X 1" over anterior surface of right shoulder joint. (iii) Swelling and tenderness on right shoulder joint. NIL All simple. N. of weapon:-No definite opinion can be given for injury SI. No. (i), but all the rest from hard and blunt substance. No definite opinion can be given for injury SI. No. (i) but all the rest are within last 24 hours." , 7. Apart from the aforesaid injury reports and evidence of P.W. 9 and D.W. 1, the informant (P.W. 5) has also admitted :in his evidence that he had seen some of the accused in the Hospital. Even P.W. 7 has also admitted in her evidence that she had seen the injuries on the accused Rebati, Dhiren, Malti and Maheshwari. But these injuries were not explained by the prosecution and only on the basis of this fact, the prosecution case should be disbelieved. 8. Mr. Jai Prakash has cited the decision of Hon'ble Apex Court reported in A.I.R. 1976 S.C. 2263 [: 1977 PLJR (SC)219], Lakshmi Singh and Others vs. State of Bihar, in which the Apex Court has held:- "11...lt seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." 9. Mr. Jai Prakash has also submitted that in the present case the Doctor B.K. Malhotra who has held the Post Mortem on the dead body of the deceased Rabindra Nath Dey, has not been examined by the prosecution. But the Post Mortem Report has been proved by Bijay Prasad Das P.W. 10, Compounder of the Sadar Hospital, Dumka. The post mortem report shows that there are number of antemortem injuries including one head injury, found over the body of the deceased. It is contended that P.W. 10 is not the person before whom the post mortem examination has been conducted. He has simply brought the post mortem on the records. Therefore, the post mortem report cannot be used as substantive evidence without examining the Doctor who prepared the said report. The Doctor, had got to be examined not only for the injury mentioned in the post mortem report but also to give his opinion relating to the injuries. In this regard Mr. Jai Prakash has submitted a decision of the Hon'ble Patna High Court reported in 1989 B.B.C.J. 422 (Dhobi Yadav and Am. vs. The State of Bihar) in which it has held:- "32...The oral evidence is that the victim has received the injuries and thereafter he died. In spite of all this it cannot be said that what was the cause of death of the victim. So in these circumstances post mortem report cannot be accepted in absence of the examination of the doctor. But only this much is established that the victim was assaulted by the accused persons and the victim received the injuries..." 10. Counsel for the State submits that the witnesses have said that the appellants have assaulted the son of the informant, result of which he died. According to the prosecution, P.Ws. 1, 4, 5, 6 and 7 are the material witnesses who have proved the prosecution case. On scrutinizing the evidence of the aforesaid witnesses, I find that P.W. 1 has admitted in his evidence that he was at his shop which is at about half kilometer from his house. According to the prosecution, P.Ws. 1, 4, 5, 6 and 7 are the material witnesses who have proved the prosecution case. On scrutinizing the evidence of the aforesaid witnesses, I find that P.W. 1 has admitted in his evidence that he was at his shop which is at about half kilometer from his house. He came to his house (the place of occurrence) after getting information from his sister. P.W. 4 mother of the P.W. 1 has stated in para-2 of her evidence that her son Nimai (P.W. 1) came to the place of occurrence after half an hour and took all of them to the Hospital. Thus, it is very clear that the P.W. 1 is not an eye witness to the alleged occurrence. 11. Regarding the assault P.Ws. 4 and 5 have stated in their evidence that Rebati Layak assaulted Rabindra Nath Dey (the deceased) with Sabal result of which he fell down on the ground and became unconscious. No other accused has assaulted him. On the other hand P.Ws. 6 and 7 have stated that Rebati Layak with Sabal and Atul and Bishnu with Lathi assaulted Rabindra Nath Dey (the deceased). Further more, the informant P.W. 5 has stated that assaults have been made indiscriminately for some time and on hulla a number of villagers reached to the place of occurrence. But not a single villager or any independent witness came forward to support the prosecution case. Even there is no consistence evidence about the assault made by the accused appellants. In these circumstances, it is difficult to say that assault made by Rewati Layak has caused the death of Rabindra Nath Dey. 12. Counsel appearing for the State has submitted that the trial court has given its finding that as the delay in sending the F.I.R. was not the fault of prosecution and no question ever asked to the I.O. (P.W. 9) from the side of the defence in this regard. Therefore, the prosecution case cannot be disbelieved on this account of said delay. 13. Overall consideration of the evidence and materials on record, I find in the present case the prosecution has failed to establish the actual manner of the occurrence and the prosecution has not given any explanation as to how and in what circumstances injuries were inflicted on the accused persons in the same occurrence. 13. Overall consideration of the evidence and materials on record, I find in the present case the prosecution has failed to establish the actual manner of the occurrence and the prosecution has not given any explanation as to how and in what circumstances injuries were inflicted on the accused persons in the same occurrence. Admittedly the witnesses examined by the prosecution are all interested witness and inimical to the accused party, no independent reliable witness has come to support the prosecution case. The first information given by the Chowkidar to the police station was not produced before the trial court. The fardbeyan of the informant on basis which, the F.I.R. was drawn, received by the Court of C.J.M. after delay of two days. Furthermore, Doctor has not been examined by the prosecution which has caused a great prejudice to the appellant as he was only person to give his opinion related to the injuries and what was the cause of the death of the victim and result of which injury the victim died. All the circumstances has clearly established that the prosecution has not come before the trial court with the true version of the prosecution case. For the reason and the discussion mentioned above, in my opinion prosecution has failed to establish the charges leveled against the appellants beyond all reasonable doubts. In my opinion, the appellants should get benefit of doubt. 14. In the result giving benefit of doubt, I acquit all the appellants from the charges leveled against them. Accordingly, this appeal is allowed and the conviction and sentences passed against the appellants by the impugned judgment passed by the trial court is set aside and the appellants are discharged from the liability of their bail bonds.