JUDGMENT SHYAM KISHORE SHARMA Kapileshwar Sah and his father Manraj Sah (the appellants of Criminal Appeal (DB) No. 377 of 2000) and Sone Lal Sah (the appellant of Criminal Appeal (DB) No. 384 of 2000) have impugned the judgment and order dated 21.07.2000, passed in Sessions Trial No. 47 of 1989 / 340 of 2000 by the learned 2nd Additional Sessions Judge, Samastipur, whereby all the appellants have been convicted for the offence under Section 302 of the Indian Penal Code and sentenced them to undergo R.I. for life. 2. Unfortunately, the fardbeyan is not on the record. But materials available, the charge sheet and another documents are being relied upon to reproduce the prosecution case which has supported on the basis of fardbeyan of Asharfi Devi, wife of deceased Chaturbhuj Sah (deceased of the case). It has been alleged that Chaturbhuj Sah had been to the house of Asheshar Mahto where there was commotion going on between Kapileshwar Sah and Sonelal Sah. Chaturbhuj Sah (the deceased) with Dilip Sah, Devan Sah and Raj Narain Sah were there, further the villagers Jugeshwar Mahto, Ganaur, Manraj Sah, Kapileshwar Sah and Ram Sewak Mahto were also there. The informant and her daughter reached there on hulla and saw Kapileshwar Sah and Sonelal Sah struck a Lathi blow upon the head of the informant’s husband. The informant’s husband fell down on account of impact of the assault. Devan Sah and Dilip Sah brought the informant’s husband to his house where the doctor was called in the night on 21.03.1982. In the next morning, the victim was carried to Pusa Hospital but he died. On the basis of fardbeyan, Tajpur P.S. Case No. 89 of 1982 was instituted against the appellants and others under Sections 147, 148, 149 and 302 of the place of occurrence on 14.02.1986. 3. After cognizance the case was committed to the court of Sessions where charge under Section 302 of the Indian Penal Code was explained to the accused and they pleaded innocence then the trial proceeded. 4. The defence of the accused persons was of false implication. 5. The prosecution examined twelve prosecution witnesses they are Devan Sah P.W. 1, Dilip Kumar Sah P.W. 2, Raj Narain Singh P.W. 3, Baleshwar Sah P.W. 4, Ram Phal Sah P.W. 5, Most. Ashrafi Devi P.W. 6, Bibha Devi P.W. 7, Rajeshwar Pd. 4. The defence of the accused persons was of false implication. 5. The prosecution examined twelve prosecution witnesses they are Devan Sah P.W. 1, Dilip Kumar Sah P.W. 2, Raj Narain Singh P.W. 3, Baleshwar Sah P.W. 4, Ram Phal Sah P.W. 5, Most. Ashrafi Devi P.W. 6, Bibha Devi P.W. 7, Rajeshwar Pd. Sinha P.W. 8, Dhrub Narain Lal P.W. 9, Shri Krishna Sharma P.W. 10, Rati Kant Pathak P.W. 11 and Karm Narain Rai P.W. 12. The post-mortem report was exhibited as (Ext. 1), formal FIR as (Ext. 2), Letter dated 07.10.1985 as (Ext. 3) and inquest report as (Ext. 4). On the other hand the defence has examined Rabindra Thakur as D.W. 1, Ram Sagar Sharma as D.W. 2, Dinesh Mahto as D.W. 3, Dashrath Singh as D.W. 4, Bijay Kumar as D.W. 5 and Mahendra Mahto as D.W. 6 and has exhibited Panchnama written by Premlal Mahto as (Ext. A), FIR as (Ext. B), endorsement in the writing and signature over the written report Ext. B which is marked as (Ext. B/1), formal FIR (Ext. C), Signature of Dinesh Mahto and five others on Panchnama is (Ext. D to D/5), signature on water selling register (Ext. E), signature on water selling register (Ext. F) and Jamabandi register (Ext. G). 6. The trial court after considering the evidence has found that the prosecution has been able to prove the charge against the accused persons beyond shadow of all reasonable doubts. 7. This Court has to see as to whether the prosecution has been able to prove its case beyond shadow of all reasonable doubts or not. 8. The death of Chaturbhuj Sah has been sought to be proved by the inquest report (Ext. 4) and post-mortem report (Ext. 1). Ext. 1 which has been brought on record is Xerox copy of the post-mortem. From the post-mortem report it cannot be said that as to whose post-mortem was that. The initial version of the post-mortem report mentions the name of the deceased, age, parentage and his identification but that is not here. The post-mortem report which has been brought on record does not describe the deceased. However, through the post-mortem report it has not come that the deceased whose post-mortem has been exhibited and who had died on account of hard and blunt substance. 9. P.Ws. 1, 2, 3, 4 and 6 are material witnesses. P.Ws. The post-mortem report which has been brought on record does not describe the deceased. However, through the post-mortem report it has not come that the deceased whose post-mortem has been exhibited and who had died on account of hard and blunt substance. 9. P.Ws. 1, 2, 3, 4 and 6 are material witnesses. P.Ws. 5 and 7 have been tendered by the prosecution. P.W. 8 has formally proved the post-mortem report. P.W. 9 Dhrub Narain Lal has formally proved the formal FIR. Other formal witnesses are P.Ws. 11 and 12. P.W. 10, the I.O. has deposed that he has picked up the investigation of the case from 08.10.1985, though the occurrence alleged was of 21.03.1982, he has deposed that no noting of the earlier investigating officer was there, therefore, identification in the case has started after 08.10.1985. 10. P.W. 6 is unfortunate widow whose husband was killed. She has stated that at 9.00 p.m., she was inside her house at that very time Kapileshwar Sah, Sonelal Sah and Manraj Sah came. Kapileshwar Sah was having small Farsa (sharp cutting weapon) rests were having Lathis. As soon as the accused reached at the darwaja, husband of the informant was overpowered and dragged away and thereafter assaulted by Kapileshwar Sah by Farsa which caused injury upon the head of Chaturbhuj Sah the informant’s husband. On account of impact of the assault, Chaturbhuj Sah fell down and blood was coming out. Informant’s husband had lost his senses and thereafter, he was treated at his house. On the next morning he was taken to Pusa Hospital through a bullock cart but at Pusa Hospital he died. The informant claimed that her husband died on account of assault. She has stated that one Panchayati was arranged prior to the occurrence. She has stated that near her house there was a Government Hospital and her husband was not taken to Government Hospital on that night. P.W. 1, while supporting the factum of assault by the accused has stated that Kapileshwar assaulted by Farsa and rests by Lathi. On account of assault the head was broken. P.W. 1 has further described the assault and has stated that on account of first impact which was caused by Farsa the victim fell down and died subsequently. The manner of assault is described by other two witnesses are almost similar as described by others. 11. On account of assault the head was broken. P.W. 1 has further described the assault and has stated that on account of first impact which was caused by Farsa the victim fell down and died subsequently. The manner of assault is described by other two witnesses are almost similar as described by others. 11. The learned APP has submitted that FIR was lodged and law was set into motion. The deceased is wife has described the manner of assault saying that the occurrence was on account of combined assault by all the accused persons and this has been supported by the post-mortem report. It has been submitted that plea of alibi of Kapileshwar Singh is very weak, not reliable and consistent. Evidence of eye witnesses cannot be disbelieved who have stated that Kapileshwar Sah was all through present at the place of occurrence. 12. The defence exhibited with regard to a Panchayati, not plea of alibi. Factum of Panchayati has been introduced to show enmity. On the basis of a plea of alibi, it has been submitted that Kapileshwar was working on his place of posting so his presence at the place of occurrence could not be possible. It has also been submitted that place of occurrence was inspected after more than two and half years and such inspection was of no use. Statement of witnesses recorded under Section 161 of the Code of Criminal Procedure after 07.10.1985 of an occurrence of 21.03.1982 cannot be believed. The prosecution has failed to bring the fardbeyan on the record and from the post-mortem report it cannot be said that it was the post-mortem of the deceased of the case. The doctor, no doubt, holding the post-mortem was and it has also been submitted that even if formal proof of death by post-mortem is accepted, then it belies the entire prosecution case. The consistent evidence is that assault by one of the accused was upon the head by Farsa which is definitely a sharp cutting weapon but no such injury has been found. Further the prosecution case is that the assault by Lathi was repeated but the doctor has found only one injury on the head of the deceased which was caused by hard and blunt substances. In fact, nobody has seen the occurrence and after the victim fell down on any hard surface and died, then the case was fabricated. Further the prosecution case is that the assault by Lathi was repeated but the doctor has found only one injury on the head of the deceased which was caused by hard and blunt substances. In fact, nobody has seen the occurrence and after the victim fell down on any hard surface and died, then the case was fabricated. There is no explanation as to why the deceased was left to die and was not carried to the near Government Hospital. 13. The original story which has come up from the fardbeyan was that assault was by Lathi. There was no mention of any assault by Farsa of the eye witnesses who have stated that assault by one of the accused by Farsa and others by Lathi. The post-mortem report mentions only one injury. No injury of Farsa has been found by the doctor. The sole anti-mortem injury by hard and blunt substance which is not the case of the prosecution rather its case is otherwise and the definite case of the prosecution is that the Farsa injury was caused upon the head and Lathi injury upon the other portions. The oral evidence has been wholly contradicted by the post-mortem report. Such contradictions are of vital nature and thus, contradictions are not minor and can be contended as vital contradictions. The eye witnesses’ account and medical evidence have created doubt to presume as to whether the prosecution has come with correct version of the occurrence or not. 14. Surprising aspect of the case is that the occurrence is of 21.03.1982, and there was no investigation and thereafter when the investigation was started then the new I.O. joined on 08.10.1985 and the diary was not written in between. This period is not a small period rather very-very long period in which there was no investigation at all after so many years, months, and days. No evidence could have been gathered by the I.O. There is no explanation as to why the case diary was not written. The Section 161 of the Code of Criminal Procedure mandates, that the statement of the witnesses should be recorded as early as possible. When opportunities have been given then the statement of the witnesses and the victim was not recorded till 08.10.1985. This gives vital blow to the prosecution case. The Section 161 of the Code of Criminal Procedure mandates, that the statement of the witnesses should be recorded as early as possible. When opportunities have been given then the statement of the witnesses and the victim was not recorded till 08.10.1985. This gives vital blow to the prosecution case. There is no mention that blood was found at the place of occurrence though there is evidence that the blood has fallen down at the place of occurrence. To investigate all the fact, since there was no investigation between the date of occurrence till 08.10.1985, then it was not possible to the I.O. to find any trace of blood. 15. There is no explanation as to why the injured was not taken to a nearby Government Hospital and why he was left at the mercy of a village doctor who has also not been examined as a prosecution witness. The post-mortem report mentions that back bandage was applied but it has not been explained. The death is not definitely in the manner as deposed by the witnesses. 16. In view of the clear contradictions between the eye witnesses’ account and medical evidence and considering the fact that investigation was taken away after days, months and years. Once a doubt is created then the benefit of doubt goes to the accused persons. Similar is the case here. 17. In the result the judgment of conviction is set aside and the appeals are allowed. The accused persons of both the appeals are acquitted from the charges and they are discharged from the liability of their respective bail bonds.