JUDGMENT Per A.K. Singh, J. The present appeal is directed against the judgment dated 30.07.1998 and the order dated 31.07.1998 passed by the learned 7th Additional Sessions Judge, Chapra in Sessions Trial No.163 of 1988 by which appellant no.1 Sushil Kumar Mishra @ Sushil Mishra has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years whereas appellant no.2 Rajeshwar Mishra has been convicted under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year. 2. The prosecution case is based on the fardbeyan of P.W.4 Pashupati Kumar Singh. His oral statement with respect to an occurrence which is alleged to have taken place on 27.04.1986 at about 8 p.m. was recorded by a Sub Inspector of Police, namely, Mundrika Prasad of Awatar Nagar police station on 28.04.1986 at 8.45 a.m. at village-Mauzampur. It is stated in the fardbeyan that on the relevant date and at the time of occurrence, the appellants who are the co-villagers of the informant together with co-accused Premlal Singh and one unknown, being variously armed with bhala and garasa, all on a sudden, entered into the house of the informant. Appellant no.2 Rajeshwar Mishra is alleged to be armed with farsa whereas appellant no.1 Sushil Kumar Mishra @ Sushil Mishra and co-accused Premlal Singh are alleged to be armed with bhala. One another unknown accused is also alleged to have come armed with a lethal weapon. The informant alleges that appellant no.2 Rajeshwar Mishra exhorted others on which all the accused persons attacked upon him with their respective weapons with an intention to kill. The informant started shouting and on being injured, fell down in the courtyard. On the shouting made by the informant, Nandkishore Singh(P.W.3), Gopaljee Singh(not examined), Surendra Singh(not examined) and Chandradeo Singh(P.W.1) came to the place of occurrence and thereafter the accused persons fled away. 3. The fardbeyan was recorded on 28.04.1986 at 8.45 a.m. whereas the formal FIR, being Awatar Nagar Police Station Case No.58 of 1986, was registered under Sections 452, 307 and 324/34 of the Indian Penal Code on 29.04.1986. The FIR in question was transmitted to the court on 30.04.1986 and the same was received in the court on 01.05.1986. 3. The fardbeyan was recorded on 28.04.1986 at 8.45 a.m. whereas the formal FIR, being Awatar Nagar Police Station Case No.58 of 1986, was registered under Sections 452, 307 and 324/34 of the Indian Penal Code on 29.04.1986. The FIR in question was transmitted to the court on 30.04.1986 and the same was received in the court on 01.05.1986. The Officer-in-Charge of the police station, namely, Mundrika Prasad who had reduced the fardbeyan in writing, after institution of the case, took up the investigation himself. The police submitted charge-sheet in the case on conclusion of the investigation under Sections 452, 307 and 324 read with Section 34 of the Indian Penal Code. The learned Chief Judicial Magistrate concerned took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed charge under Section 307 read with Section 34 of the Indian Penal Code against the appellants and co-accused Prem Lal Singh. The accused persons did not plead guilty to the charge and claimed to be tried. 4. In course of trial, in order to prove the charge the prosecution examined, in all, seven witnesses. Out of them P.W.4 Pashupati Kumar Singh is the informant of the case. P.W.3 Nand Kishore Singh, the son of the informant, is another eye witness to the occurrence. P.W.1 Chandradeo Singh, P.W.2 Jhagaru Singh and P.W.5 Devendra Singh are the witnesses who reached at the place of occurrence on the shouting made by the informant. P.W.6 Ashok Sharma has proved the fardbeyan(Ext-2) and P.W.7 Dr. Sushil Kumar Singh had examined the injured in the hospital and issued the injury report. He has proved the injury report which has been marked as Ext-4 in course of trial. 5. The defence in order to prove its innocence has also examined three witnesses. The defence has taken a plea of false implication. From the trend of cross-examination, it appears that the defence has alleged the motive for false implication to be gift deeds executed by one Sajna Kuer who is a relative of the informant in favour of co-accused Prem Lal Singh. It is relevant to note it here that the trial court on appreciation of evidence acquitted the co-accused Prem Lal Singh giving him benefit of doubt by the same impugned judgment. 6. It is relevant to note it here that the trial court on appreciation of evidence acquitted the co-accused Prem Lal Singh giving him benefit of doubt by the same impugned judgment. 6. D.W.1 Shivnath Singh has proved the gift deeds executed by Sajna Kuer which have been marked as Ext-A and A/1. D.W.2 Fakharuddin Ahmad and D.W.3 Rudal Singh have also supported the defence case of execution of gift deed by Sajna Kuner in favour of co-accused Prem Lal Singh. 7. P.W.7 Dr. Sushil Kumar Singh who examined the injured on 28.04.1986 at 10 a.m. while deposing in court states that at the relevant time he was posted at Gultenganj State Dispensary. He found the following injuries on the person of the informant:- (i) 1”x1/6”x skin deep on the left side of the neck, caused by sharp weapon, dangerous to life, (ii) 1” x 1/6” x skin deep on palm of left hand caused by sharp weapon, nature simple, (iii) Black spot and swelling ½”x ½” on back caused by hard and blunt substance, nature simple, (iv) Black spot on swelling 1”x ½” on left side of chest caused by hard blunt substance, nature simple. According to the doctor, the injuries were caused within 24 hours. He has proved the injury report which has been marked as Ext-4. 8. 8. In examination-in-chief itself, P.W.7 states that injury nos.1 and 2 were incised wounds. According to him injury no.1 may be caused by blade of bhala and injury no.2 may be caused by farsa. He states that injury nos.3 and 4 may be caused by fall on the hard substance. 9. In cross-examination, P.W.7 admits that all the injuries may be manufactured, if, one takes risk. He further admits that all the injuries are superficial and simple in nature. In further cross-examination, he admits that bhala is a pointed weapon. 10. After discussing the medical evidence, I would like to discuss about the deposition of P.W.4 who is the injured-cum-informant of the case. P.W.4 has proved the fardbeyan which has been marked as Ext-1. In the FIR he has alleged that all the four accused persons who were variously armed assaulted with their respective weapons in order to kill him. While deposing in court, he develops the prosecution story in order to match the same with the medical report. P.W.4 has proved the fardbeyan which has been marked as Ext-1. In the FIR he has alleged that all the four accused persons who were variously armed assaulted with their respective weapons in order to kill him. While deposing in court, he develops the prosecution story in order to match the same with the medical report. He gives a complete gobye to the presence of an unknown armed accused, as narrated in the FIR. He states that appellant no.2 Rajeshwar Mishra assaulted with garasa on his left hand and appellant no.1 Sushil Kumar Mishra @ Sushil Mishra assaulted with bhala on his neck. He states that when the assault took place he was sitting on the cot. The accused persons surrounded and assaulted upon him as a result of which he fell down from the cot in the courtyard. In the F.I.R. he had alleged that all the four accused persons assaulted him with their respective weapons causing injury to him as a result of which he fell down on the ground. In cross-examination he admits that Sajna Kuer is his agnate’s grand-mother. He denies that she ever executed any gift deed in the name of Prem Lal Singh. In further cross-examination he states that he had sustained bleeding injury. The blood had fallen all around. He states that blood had also fallen on his clothes. He states that the Govt. Hospital is situated at a distance of half kilometer and the Awatar Nagar police station is at a distance of one kilometer from his village. When his attention was drawn towards his previous statement made before the police, he states that he had told the investigating officer that appellant no.2 Rajeshwar Mishra had assaulted with garasa on his left hand whereas appellant no.1 Sushil Kumar Mishra @ Sushil Mishra had assaulted with bhala on his neck. He further states that he had stated before the investigating officer that the bhala thrown by the co-accused Prem Lal Singh did not hit him. He denies the suggestion given by the defence that since Sajna Kuer had gifted the house and land in favour of co-accused Prem Lal Singh he had implicated the accused persons in a false case. 11. P.W.3 Nand Kishore Singh states in his examination that when the occurrence took place he was inside a room of his house. He denies the suggestion given by the defence that since Sajna Kuer had gifted the house and land in favour of co-accused Prem Lal Singh he had implicated the accused persons in a false case. 11. P.W.3 Nand Kishore Singh states in his examination that when the occurrence took place he was inside a room of his house. On the shouting made by his father, he came out and saw him sitting on a cot in the courtyard. The appellants attacked upon him. The assault made by appellant no.2 Rajeshwar Mishra hit him on the left palm and the assault made by appellant no.1 Sushil Kumar Mishra @ Sushil Mishra hit him on his left neck. He also states that the bhala thrown by the co-accused Prem Lal Singh did not hit his father. In cross-examination he expresses his ignorance about the gift deed executed by Sajna Kuer in favour of the accused Prem Lal Singh. When his attention was drawn towards the previous statement, made by him before police, he states that he had told the investigating officer that the assault caused by means of bhala by appellant no.1 Sushil Kumar Mishra @ Sushil Mishra hit his father on his neck and the assault made by appellant no.2 Rajeshwar Mishra by garasa hit him on his palm. In further cross-examination, he admits that the appellants had inflicted the farsa and bhala blow with full force upon his father. 12. P.W.7 Chandradeo Singh states that he did not see the occurrence. He came to the place of occurrence subsequently. When he came P.W.4 Pashupati Kumar Singh informed him that it was the appellants, co-accused Prem Lal Singh and one another who had assaulted him and fled away. He is a hearsay witness. In cross-examination, he admits that when he reached, he did not see any other witness or family member of the informant at the place of occurrence. 13. P.W.2 Jhagaru Singh states that when he came, he saw the appellants and co-accused Prem Lal Singh, who were variously armed, fleeing away near the place of occurrence. In cross-examination, he admits that he did not witness the actual incident of occurrence. He also admits that when he came to the place of occurrence no other person was found present there. P.W.5 Devendra Singh states that he saw the accused persons running away. In cross-examination, he admits that he did not witness the actual incident of occurrence. He also admits that when he came to the place of occurrence no other person was found present there. P.W.5 Devendra Singh states that he saw the accused persons running away. His evidence was recorded with objection as his statement was not recorded by the police in course of investigation. 14. The trial court, on appreciation of evidence, convicted the two appellants in the manner stated above and acquitted the co-accused Prem Lal Singh. 15. I have heard Mr. Rakesh Kumar, learned counsel for the appellants and Mr. Satyanarayan Prasad, learned Additional Public Prosecutor, on behalf of the State and with their assistance gone through the deposition on record. I find that as per the prosecution case, the alleged occurrence took place on 07.04.1986 at 8 p.m. but the fardbeyan was recorded on the next day, i.e., on 24.08.1986 at 8.45 a.m. The informant admits that the police station is situated at a distance of one kilometer. I further find that though the fardbeyan was recorded on 28.04.1986 at 8.45 a.m. The FIR was registered with undue delay on 29.04.1986. The FIR in question was also not sent forthwith to the court. It could reach the court on 01.05.1986. Thus, I find that there is undue delay at every stage for which no reasonable explanation has been given by the prosecution in course of trial. 16. I further find that the investigating officer of the case has not been examined on behalf of the prosecution. The prosecution, has given no explanation, whatsoever, for his non-examination. The attention of the witnesses examined on behalf of the prosecution was drawn by the defence. If the investigating officer would have been examined, the defence could have taken contradiction from him with respect to the previous statement of the witnesses made before the police under Section 161 of the Code of Criminal Procedure. Under such circumstance, the non-examination of the investigating officer has certainly prejudiced the defence. The informant states that as a result of the injuries sustained by him, the blood had fallen on his clothes, cot and the floor. However, the prosecution has not produced any material exhibit before the court in course of the trial. In the absence of the examination of the investigating officer, the prosecution has also failed to establish the place of occurrence. 17. However, the prosecution has not produced any material exhibit before the court in course of the trial. In the absence of the examination of the investigating officer, the prosecution has also failed to establish the place of occurrence. 17. I further find that the manner in which the assault is alleged to have taken place would have caused much damage to the informant than the injuries sustained by him. The ocular testimony of P.W.3 and P.W.4 is that the appellants inflicted bhala and garasa injury with full force. However, the doctor admits in cross-examination that the injuries sustained by the informant were all simple and superficial in nature which could have been self inflicted. 18. The informant and his son have tried to conceal the factum of gift deeds executed by Sajna Kuer in favour of co-accused Prem Lal Singh. However, the defence witnesses have brought on record the gift deed executed by Sajna Kuer. The defence has taken a plea that it was because of the said gift deeds the accused were falsely implicated in the case. 19. I further find that the witnesses examined on behalf of the prosecution have denied the presence of each other when they reached near the place of occurrence on shouting made by the informant. P.W.1 admits that when he reached at the place of occurrence apart from the injured no other family member was found present there. Thus, if P.W.1 is to be believed, the presence of P.W.3 Nand Kishore Singh, the son of the informant, becomes doubtful at the time and place of occurrence. Similarly P.W.2 Jhagaru Singh states that when he reached at the place of occurrence he did not find any other person present there. Hence, if P.W.2 is to be believed the presence of P.W.1 itself becomes doubtful at the relevant time and place of occurrence. Thus, I find that the witnesses have contradicted each other in material particulars while being examined in court. 20. For the reasons assigned, hereinabove, in my view, the prosecution has failed to prove its case beyond all reasonable doubt. 21. In the result, the appeal is allowed. The impugned judgment dated 30.07.1998 and the order dated 31.07.1998 passed by the learned 7th Additional Sessions Judge, Chapra, in Sessions Trial No.163 of 1988 are set aside. The appellants who are already on bail are discharged from the liabilities of their bail bonds. 21. In the result, the appeal is allowed. The impugned judgment dated 30.07.1998 and the order dated 31.07.1998 passed by the learned 7th Additional Sessions Judge, Chapra, in Sessions Trial No.163 of 1988 are set aside. The appellants who are already on bail are discharged from the liabilities of their bail bonds. Appeal allowed.