JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) All these four appeals arise out of the common judgment dated 6.9.1990 passed by the First additional Sessions Judge, Nawadah in Sessions Trial No. 600 of 1988/9 of 1988, whereby and whereunder, all the four appellants, namely, Lalo Singh, Munna Singh, Ramashray Singh and Upendra Singh have been convicted for offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case arising out of Nawadah P.S. Case No. 106 of 1982 is based on the Fardbeyan of Ashok Kumar (P.W.7) who at 10.30 AM on 24.4.1982 had stated before the police officer that on 23.4.1982 at about 1 PM in the afternoon, he along with his servants Mewa Lal, Rajendra Prasad and Ravindra Prasad were sitting in his shop of tea and refreshment and seen appellant Lalo Singh, Munna Singh and Gurujee @ Ramashray Singh along with four others to have come to his shop. It is the case of the informant that appellant Lalo Singh after his arrival had given an order to his servant Mewa Lal to bring seven cups of tea for them on which his servant Mewa Lal had replied that since there was no milk in the shop, tea could not be provided to them. It is alleged by the informant that on refusal by his servant to serve tea, all the seven persons including appellant Lalo Singh had started assaulting him (Mewa Lal) by fist and slaps leading to some commotion on which his elder brother Ram Nandan Prasad had come down from his house and had questioned the appellants and others the reason as with regard to assaulting his servant. It is said that the appellant Lalo Singh on this query alone made, by Ram Nandan Prasad, had exhorted to kill and, thereafter, the appellant Munna Singh, Gurujee @ Ramashraya Singh and others had caught hold of his brother Ram Nandan Prasad, whereafter, the appellant Lalo Singh from the rear had hit on the head of his brother with a wooden plank resulting into open injury on the head of his brother and his becoming unconscious and falling down on the ground outside his shop. 3. The informant has also stated that after seeing his brother becoming unconscious, appellant Lalo Singh had said that he had died and had accordingly escaped from the place. 3. The informant has also stated that after seeing his brother becoming unconscious, appellant Lalo Singh had said that he had died and had accordingly escaped from the place. According to the informant, many persons thereafter had arrived at the place of occurrence who could also narrate the entire occurrence. The informant had further claimed that he along with others had carried his injured brother to Nawadah hospital but the doctors at Nawadah in the next morning i.e. in the morning of 24.4.1982, had advised him to take him to Patna as his condition had deteriorated. The Informant has stated that thereafter his brother was taken away by Durga Prasad, Kedar Prasad along with others to Patna. The informant has also explained that since his brother was unconscious, he could not give his own statement, leaving him (informant) to give it to the police. 4. On the basis of the aforesaid Fardbeyan, the police had instituted the aforementioned Nawadah P.S. Case No. 106 of 1982 on 24.4.1982, whereafter, in course of investigation, it had found materials against the appellant Lalo Singh, Munna Singh, Ramashray Singh and Upendra Singh as also one Shrawan Kumar and after the charge-sheet was submitted against them all the accused persons were put on trial leading to the impugned judgment of conviction and sentence and resulting into these four appeals. It has to be noted that another co-accused Shrawan Kumar, who was also put on trial along with four appellants, was however acquitted by the trial court itself. 5. Mr. Rana Pratap Singh, learned senior counsel for Lalo Singh, Ramashray Singh and Upendra Singh and Mr. Uday Shankar Sharan Singh appearing for the appellant Munna Singh, had assailed the impugned judgment on several grounds but, their main attack has been that when the prosecution case itself was delayed by almost 24 hours and the injury alleged in the First Information Report also did not tally with the one found by the doctor holding postmortem, the benefit thereof had to be given to the accused appellants but, the trial court has entered into the realm of surmises and conjectures in recording their conviction. In this regard, it has also been submitted that the witnesses, who were examined on behalf of the prosecution, are also not consistent either with regard to the manner in which the injuries were inflicted or even on the point of the entire manner of occurrence. 6. It has also been suggested by the learned counsel for the appellants that the prosecution had to stand on its own legs and thus merely because the defence version of a counter case filed by the appellant Lalo Singh could not be successfully proven that could not lead to automatic conclusion that the prosecution case was true. Mr. Singh in fact has gone to the extent that the burden placed upon the prosecution to prove its case beyond all reasonable doubt can not in any event be shifted even if the defence had led some evidence to show that the occurrence, in question, had not taken place in the manner alleged. He has also highlighted certain other aspects which would be taken note of at appropriate place in this judgment but, by and large, both the counsels appearing for the appellants have submitted that it is the case where the prosecution did not prove its case beyond reasonable doubt and, as such, when one of the co-accused Shraban Kumar was acquitted by the trial court itself, no different parameter should have been applied for holding the rest of the four appellants guilty. 7. Per contra, learned counsel for the State, while supporting the impugned judgment, would submit that the occurrence, having taken place in broad day light, if the members of the prosecution party were first busy in saving the life of the deceased, the delay in lodging of the First Information Report could not be held to be fatal. It has further been explained that the story of single assault as put forward by the prosecution through all its witnesses has remained virtually consistent, inasmuch as, even the doctor, who had conducted the postmortem, has found five of the seven injuries to be part and parcel of the same injury on the head of the deceased. It has further been explained that the story of single assault as put forward by the prosecution through all its witnesses has remained virtually consistent, inasmuch as, even the doctor, who had conducted the postmortem, has found five of the seven injuries to be part and parcel of the same injury on the head of the deceased. An explanation has also been offered that even the remaining two injuries and the manner of occurrence suggested by the prosecution could be possible and, therefore, the ocular evidence and the medical evidence of the doctor conducting postmortem are not at such variance, which could have made the trial court to reject the entire prosecution case. 8. Learned counsel for the State in fact had gone to the extent that from the materials on record, it would be a case of abuse of power by the Investigating Officer as also the first Medical Officer who had examined the injury on the person of the deceased before his being taken to Patna Medical College and Hospital. In this regard she has proceeded to submit that though such evidence of the Investigating Officer and the first Medical Officer would be required to scan very carefully and should be relied only if they are consistent to the rest of the prosecution case but in any event they should not be discarded altogether. She has also explained other circumstances in support of findings recorded by trial court which we would take note of at the time of consideration of the evidence on record at appropriate place but, then, she is of the firm view that the impugned judgment would require no interference much less any sort of modification in the conviction and sentence of all these appellants. 9. Before we would analyze the aforementioned submissions made on behalf of the learned counsel for the parties, it would be necessary for us to have an eye-bird view of the evidence on record. In this case, P.W.1 Suresh Prasad, P.W.2 Rajendra Prasad, P.W.3 Brahmdeo Raut, P.W.4 Dharmendra Kumar Verma, P.W.5 Meba Lal and P.W.7 Ashok Kumar (informant) have appeared before the court as an eye witnesses to the occurrence. P.W.8 Dr. Brahmdeo Prasad Singh is the first doctor who had examined the injuries of the deceased at 1.30 PM on 23.4.1982 whereas Dr. In this case, P.W.1 Suresh Prasad, P.W.2 Rajendra Prasad, P.W.3 Brahmdeo Raut, P.W.4 Dharmendra Kumar Verma, P.W.5 Meba Lal and P.W.7 Ashok Kumar (informant) have appeared before the court as an eye witnesses to the occurrence. P.W.8 Dr. Brahmdeo Prasad Singh is the first doctor who had examined the injuries of the deceased at 1.30 PM on 23.4.1982 whereas Dr. Upendra Prasad Verma is the second doctor who was examined on commission as C.W.-1 in support of his postmortem report conducted on the person of the deceased. The prosecution has also examined two investigating officers, namely, P.W.10 Sita Ram Singh and P.W.9 Raj Kishore Singh. Rest of the prosecution witnesses, namely, P.W.6 Kedar Prasad, P.W.11 Jamilur Rahman (Magistrate), P.W.12 Md. Islam and P.W.13 Ramdeo Prasad Sinha are now formal witnesses in view of the fact that co-accused Shrawan Kumar who was said to be identified in course of T.I. Parade in presence of Magistrate Dr. Jamilur Rahman (P.W.11) has already been acquitted. 10. The prosecution in addition to the oral evidence has also exhibited Exbt.-1 Series signatures of respective witnesses over the respective documents, Exbt.-2 inquest report, Exbt.-3 Series injury report of Ram Nandan Prasad issued by doctor as well as police, Exbt.-4 Fardbeyan, Exbt.-5 Formal F.I.R., Exbt.-6 seizure list, Exbt.-7 T.I.P. Chart, Exbt.-8 Injury Register, Exbt.-9 bed head ticket, Exbt.-10 certified page of bed head ticket, Exbt.-11 case diary (para 77 to 95), Exbt.-12 Malkhana Register, Exbt.-13 certified copy of the Fardbeyan of Nawada P.S. Case No. 234 of 1989, Exbt.-14 certified copy of the first information report of Nawada P.S. Case No. 150 of 1990, Exbt.-15 certified copy of Nawada P.S. Case No. 105 of 1990, Exbt.-16 certified copy of the Nawada P.S. Case No. 1 of 1989 as well had also exhibited material exhibits I & II broken part of wooden plank. 11. 11. On the other hand the defence of the appellants is total denial of the entire occurrence and their being falsely implicated on account of a counter case filed by Appellant Munna Singh and in this regard they have examined defence witnesses, namely, Musafir Singh D.W.1 and Rajeshwar Prasad Singh D.W.2 and have also proven certain documents, namely, Exbt.-A injury report of Lalo Singh, Exbt.-B Vakalatnama, Exbt.-C an application, Exbt.-D Fardbeyan of Nawada P.S. Case No. 107 of 1982, Exbt.-E formal First Information Report, Exbt.-F the order dated 11.9.1986 and Exbt.-G the final report in Nawada P.S. Case No. 107 of 1982. 12. The first and foremost thing, as has been noted above, is the presence of as many as six eye witnesses which also has an important bearing in this case, inasmuch as, three of them namely, P.Ws. 2, 5 & 7 were inside the shop where the occurrence had taken place whereas rest three of them, namely, P.Ws. 1, 3, & 4 are the shopkeepers of the adjoining area. 13. This case however has some notorious features which must be addressed to at the inception in order to find out as to whether everything was fair when the prosecution had got its F.I.R. recorded leading to the investigation of the case? As noted above, the occurrence had taken place at 1 PM on 23.4.1982 and the injured Ram Nandan Prasad, who later on succumbed to his injury only on the next day was infact rushed to the hospital within half an hour, inasmuch as the first doctor, P.W.8, has come out to say that he had examined the deceased on 23.4.1982 at 1.30 PM. Admittedly, the deceased was in a serious condition who was an indoor patient but, the most crucial documentary evidence namely, Bed Head Ticket which could have reflected the actual position and condition of the deceased in an injured condition has somehow been now shrouded in the mystery on account of the conduct of the Doctor P.W.8 himself who has somehow projected a picture that the first Bed Head Ticket of the deceased prepared by him was lost and he had to prepare a fresh Bed Head Ticket after re-examining the deceased. This infact is not the end of the matter and in fact the original records received in the court also at one point of time had got burnt leaving out some very important piece of material which could not be brought on record to explain the prosecution version as with regard to the delay in lodging of the First Information Report. 14. Another interesting feature of this case is that the officer in-charge, the first Investigating Officer P.W.10, who claims to have reached immediately at the hospital, infact just after the injured Ram Nandan Prasad was taken to the hospital for treatment and had also led to preparation of the injury slip (Exbt.-3/1), has failed to give any explanation as to why the First Information Report of the injured deceased was not recorded by himself when he had found none other from the prosecution party to be either present or willing to give his statement for institution of the First Information Report. The F.I.R. as noted above, came to be lodged only after almost twenty-four hours of the occurrence. All these aspects therefore will have a crucial bearing on the version of prosecution specially when it is found that in course of investigation of this case, as many as three or more Investigating Officers came to play their role without there being any explanation for repeated replacement of the Investigating Officers. 15. If these weak links were not good enough to create a doubt on the entire prosecution case the prosecution, being in league with the defence, is also completely exposed from the conduct of P.W.4 Dharmendra Kumar Verma an alleged eyewitness, whose examination, in the first instance in court, had been completed on 19.8.1988 but, he came to be examined once again on 5.6.1990 in view of his own application based on his call of his conscience. Surprisingly such an application of PW4 also allowed by the court but, the reasons thereof cannot be known because of the order-sheet of the court is said to be burnt/misplaced. Surprisingly such an application of PW4 also allowed by the court but, the reasons thereof cannot be known because of the order-sheet of the court is said to be burnt/misplaced. As a matter of fact, such conduct on the part of the prosecution remains wholly unexplained specially when it is found that the practice of recall of a concluded evidence of P.W.4 was not in isolation but, even P.W.8, the first doctor, who had examined injuries on the person of the deceased at 1.30 PM on 23.4.1982 and whose evidence had already been recorded in all respect on 16.12.1988 was permitted to be re-examined on two occasions, firstly on 23.5.1989 and yet again on 4.7.1999. There is also no cogent explanation for such conduct on the part of the prosecution and when we would discuss their evidence in detail, we would notice that these practices were made only with a view to favour the accused persons. 16. In this case, if one goes to the evidence of P.W.2, P.W.4 and P.W.7, who are the most natural witnesses with regard to the occurrence taking place in the shop, it would be found that they have been quite consistent either with regard to the place of occurrence or the manner of occurrence. The only difficulty for all of them has been that some where in their sub-conscious mind, they were aware of the fact that the earliest prosecution version came to be lodged only after 24 hours of the occurrence and that is how all three of them had given a different version of the same occurrence. PW2 in his evidence in court has fully supported the first part of the case regarding there being verbal altercation between Meba Lal and the accused persons on account of refusal serving of tea to the accused persons and he had also stated that on the intervention of the deceased in capacity of the owner of the shop, he (deceased) was assaulted by appellant Lalo Singh with the wooden plank while rest of the appellants had caught hold of him. In the cross-examination, however, what he has stated about the occurrence would simply go to show that he had tried to exclude P.W.7 from the group of persons who had taken the deceased for his initial treatment in Nawada hospital. In the cross-examination, however, what he has stated about the occurrence would simply go to show that he had tried to exclude P.W.7 from the group of persons who had taken the deceased for his initial treatment in Nawada hospital. In paragraph no.6 his specific statement was that it was P.W.1 Suresh Prasad, P.W.3 Brahmdeo Raut and one Badri (not examined) as also Bhola who had taken away the injured Ram Nandan Prasad to the hospital. The importance of this omission of P.W.7 by P.W.2 lies in the background that the Investigating Officer in his evidence has claimed that after he had gone to the hospital and had demanded the injury slip for examining the injury of the deceased by the doctor P.W.8, he had immediately gone to the shop for recording of the First Information Report but he did not find any of the family members including P.W.7 to be present over there. 17. Surprisingly, the Investigating Officer has also in his evidence claimed that even in the hospital, he could not find any family members for recording of the Fardbeyan. This aspect along with the specific admission of the P.W.2 in his cross-examination that Badri (not examined) and Ashok Kumar (P.W.7) had taken away the deceased for his further treatment to Patna and that he had returned back only after the death of the deceased taking place on next day would go to show that the correct version of the occurrence was being sought to be suppressed by the prosecution. If such a conduct on the part of the P.W.2 was not sufficient to create doubt on the prosecution case, P.W.7 himself in his cross-examination had stated that though the house of the D.S.P. was at a distance of 30 to 40 feet from his shop and yet he did not inform anyone at the police station or to any police officer on the date of occurrence or in the next 24 hours. His statement in paragraph no.4 in the cross-examination would only go to show that the earliest version about the occurrence was withheld by him and to some extent, he had also tried to explain the presence of blood found by the Investigating Officer outside the shop by stating that his brother had received such injuries outside the shop and had fallen over there. It has to be kept in mind that the earlier consistent case of the prosecution was such occurrence to have taken place inside the shop because the deceased was in the upstairs of the house and had landed in the shop where the appellants along with others had quarreled and assaulted Meva Lal, the servant, when he had refused to serve tea to them. 18. Added to it the effort of P.W.7, the informant and an eyewitness, to suppress the real version becomes apparent from his statement in paragraph no.11 where he had conceded the presence of Brij Nandan, his own brother, in the hospital in Nawadah on 23.4.1982 and yet the Fardbeyan could not be given by either of them to the Police Officer, P.W.10. As noted that Brij Nandan had given a subsequent Fardbeyan on 24.4.1982 after the death of the deceased at PMCH at Patna and even when the same had been admitted in the evidence of I.O. P.W.10 to have been received by him in course of investigation, neither the Fardbeyan of Brij Nandan recorded at Patna was exhibited nor even Brij Nandan was examined as a witness and in fact, he was not even cited as a charge-sheet witness. Non-examination of Brij Nandan in the facts and circumstances of this case has become quite crucial and in fact fatal for the prosecution specially when no explanation has been offered for the same. The cross-examination of P.W.7 and his admission mentioned in paragraph no.8 would really pose a serious question as with regard to his being an eyewitness to the occurrence, inasmuch as, he had stated that his brother, the deceased, had reached outside the shop even before coming out of the accused persons from the shop. He had then sought to also explain that the deceased never went inside the shop nor had he made any effort to catch hold of any accused persons. PW7 has therefore given a complete facelift to his own earliest version in F.I.R. by stating that the entire verbal altercation between the deceased and accused persons as also the assault on him (deceased) had taken place outside the shop and in fact he had gone to say that he was inside the shop when his brother was being assaulted and he did not go to rescue him. He has further stated that even the servant of the shop (which would include P.W.2 and P.W.5) were inside the shop and had also not come out of the shop. According to PW7 when he ultimately came out of his shop he had found his brother (deceased) lying on the road after he had already been assaulted by the accused person. Thus whatever has been stated by the P.W.7 himself in paragraph no.8 of his evidence in court would actually reduce him to a mere hearsay witness. This aspect of the matter coupled with his conduct of giving a wholly belated version of the occurrence to the police by way of his fardbeyan after almost twenty-four hours would therefore pose a big question as to whether P.W.2 or P.W.7 were actually the eyewitnesses to the occurrence as claimed by them 19. That would leave this Court to examine the evidence of Mewa Lal, the servant, P.W.5, another eyewitness, whose presence in the shop has been claimed by the informant right from the beginning and who actually happens to be the bone of contention for the occurrence in question. P.W.5 is the non-else but Meva Lal, the servant, who, according to the Informant P.W.7, was firstly questioned and abused by the accused persons for not supplying tea to them as also the person who had been the main target for all the accused persons present in the shop including the appellants. P.W.5 in his cross-examination had however stated that the accused persons at the time of occurrence had formed two groups, inasmuch as, while rest of the accused persons including appellants Upendra, Munna and Ram Ashray were seated in the shop, appellant Lalo Singh was standing outside the shop and was creating nuisance from outside the shop. This part of his statement in court is contrary not only to the prosecution case but also is wholly inconsistent with the entire prosecution case of the complete occurrence taking place inside the shop. P.W.5 in fact has been fully exposed when he has also stated that when the deceased had got down from the upstairs inside the shop he had immediately gone outside the shop whereafter he did never come back inside the shop. He had also stated that P.W.7 also came out of the shop before the deceased was assaulted, a fact which was categorically denied by P.W.7 in his own evidence. He had also stated that P.W.7 also came out of the shop before the deceased was assaulted, a fact which was categorically denied by P.W.7 in his own evidence. In any event, P.W.5, having given up the main thrust as with regard to the genesis of the occurrence being his denial of service of tea in fact has completely changed the prosecution case either with regard to the place of occurrence or manner of occurrence. The evidence of PW5 would, therefore, pose a serious question as with regard to his being an eyewitness to the occurrence. 20. Thus, in view of our aforesaid discussion P.W.2, P.W.5 as also P.W.7 the three persons allegedly present inside the shop cannot be said to be reliable eyewitnesses of the occurrence even though they in their evidence had claimed to be throughout present during course of occurrence in the shop. 21. As noted, there are also three other eyewitnesses who were not in the shop but, are said to have seen the occurrence by remaining stationed outside the shop, namely, P.W.1, P.W.3 & P.W.4. From the evidence of P.W.1, it would be however clear that he had a grievance against the appellant Lalo Singh as was admitted by him in paragraph no.7 and when he has also gone to admit that he could not see any injury on the person of the deceased, his being relied as an authentic eyewitness is out of question. 22. In the likewise manner, P.W.3, when in paragraph no.4 of his evidence, has admitted that when he had reached almost running to the place of occurrence, he had seen the deceased in an injured condition lying on the floor near the counter inside the shop, his being eyewitness of the occurrence is automatically ruled out because his such description is contrary to the evidence of the three other eyewitnesses, namely, PW1, PW4 and PW7. 23. That would leave this Court to examine the evidence of P.W.4 whose conduct, as noted above, does not inspire much confidence, inasmuch as, he is the witness who, at one point of time, had sought to support the prosecution case but, later on had come out with a completely different version only with predetermined mind to demolish the prosecution case by giving entirely different and contradictory version to his earlier evidence allegedly in the name of call of his own conscience. As noted above, P.W.4 was examined in the first round along with all the witnesses and his evidence was concluded on 19.8.1988 but, surprisingly, an application was filed on behalf of the prosecution for his re-examination on which the court had passed an order allowing such examination and though such application or the resultant order is now not on record as they have been found to be burnt in a general fire taken place in the civil court premises, the reason given by him on 5.6.1990 in course of his further evidence in court that after giving his evidence in the court on 19.8.1988 he had felt that he should give the true account of the occurrence which he had not given on the earlier occasion. PW4 in course of further examination had gone to deny his entire earlier evidence wherein he had stated facts relating to his being presence in the shop on 23.4.1982 at the time of occurrence. He has also denied the entire manner of occurrence in his subsequent re-examination in court and such a witness, who has either been on account of laches on the part of the prosecution or being gained over by the defence has changed the entire version, cannot be relied in any manner much less as an eyewitness. 24. This Court would however fail in its duty if it does not take into account the approach of the trial court in allowing re-examination of P.W.4 on an application filed by him. It has to be noted that the entire prosecution case had already been concluded by examination of even last witness on 11.2.1989 and, thereafter, this witness was examined again on 5.6.1990 at a point of time when the defence was on its legs for explaining the prosecution case in terms of Section 313 Cr.P.C. By now it is well settled that such recall of witness, at a point of time when the prosecution had already concluded the case, could not have been allowed mechanically and without any cogent reason and at least whatever reasons have been given by the P.W.4 in his evidence in court would go to show that the court below had allowed such prayer of the prosecution not only in a mechanical manner but, without understanding the implication that could have reflected on the prosecution case. 25. 25. It has to be also kept in mind that in likewise manner P.W.8, Dr. Brahmdeo Prasad Singh, had been already examined on 16.12.1988 and, thereafter, he was sought to be recalled for proving the original injury report but, then, he again had given a complete facelift to his earlier version with regard to preparation of Bed Head Ticket inasmuch as an explanation came from him that he had prepared a fresh Bed Head Ticket after re-examination of the patient, the deceased, because the original thereof was lost. Examination of P.W.8 in three instalments, firstly on 16.12.1988 again on 23.5.1989 and yet again on 4.7.1989 would speak a volume, the manner in which the prosecution case was being conducted and the evidence of P.W.8 on the subsequent days being solely aimed to help the accused persons either with regard to the injuries or the preparation of injury and bed head ticket would definitely give a strong feeling to us that the prosecution either voluntarily or in collusion was trying to scuttle the crucial evidence. 26. Thus, we would find it difficult to place our reliance on the portion of evidence of PW4 and PW8 which were recorded on their recall by way of their further examination by adopting a course suggested by the Apex Court in the case of Ram Bihari Yadav v. State of Bihar & ors., reported in (1998)4 SCC 517 , wherein it was held as follows: “13. Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused. Yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice.” 27. There is no difficulty for us to take into account the prosecution version as with regard to the assault on the head of the deceased by use of wooden plank but, then, whatever has been brought on record to substantiate its case not only by way of evidence but, also by material exhibit, would go to show that such material exhibit no.1 and material exhibit no.2 was measuring 3'X3" and 2 1/2'X3". Thus, it was this plank of 5 1/2' X 3" which was broken into two pieces and recovered by the Investigating Officer on 24.4.1982 at 6.30 PM which was used as a weapon for assaulting the deceased. In this regard it has to be however taken into account that recovery of this plank also became doubtful because the Investigating Officer in the first round had gone to the place of occurrence on three occasions on 23.4.1982 even prior to recording of the fardbeyan on 24.4.1982 for finding out any family member of the deceased to give their version for recording of Fardbeyan but, he did not find the existence of the plank. After recording of the Fardbeyan on 24.4.1982 at 9 PM he had again gone and had inspected the place of occurrence on two occasions and yet he did not find the alleged plank in course of his visit on 24.4.1982. It was in fact in course of his third visit to the shop after recoding of F.I.R. that the recovery of the plank was said to have been made. The size of the plank and the story of the prosecution of giving one blow from the back portion of the plank by appellant Lalo Singh on the head of the deceased leading to breaking of the plank in two pieces, however, gets absolutely contradicted from the evidence of C.W.1 who had conducted the postmortem over the person of the deceased. C.W.1 Dr. C.W.1 Dr. Upendra Prasad Verma, former Head of the Department of Forensic Medicine of Patna Medical College and Hospital who, in course of his postmortem over the dead person of the deceased on 25.4.1982, had found the following injuries:- "(1) Sliched wound 4 1/2" length at right parital (2) Blood clot in scalp all over skull (3) Abrasion in an area of 4"X2" at right upper arm at its upper end, anterior aspect. (4) Abrasion 1"X1/2" at right hypotheniar region (5) Linear fracture 71/2" from right perital to left perital and continuing up to the left temporal with separation of sagittal suture (6) Exteradural haematoma left parital and right Parital 5"X3 1/2"X1/2" (7) Brain congested and covered with sub dural haematoma all over (there was no swelling detected at right upper arm, though mentioned in the inquest)." 28. Obviously, when there was allegation of only one blow of assault by Lalo Singh by the wooden plank from the back portion on the head of the deceased, presence of seven injuries would pose a big question as with regard to the credibility of entire ocular evidence. It has to be kept in mind that the doctor CW1 was put to cross-examination where he had also explained that injury nos. 1, 2, 5, 6 & 7 could be part of the same injury on the head but injury no.3 and 4 were separate injuries. His cross-examination in this regard being relevant is also quoted hereinbelow:- "(1) Injury no.1 indicates that the deceased was earlier operated upon. (2) It is not mentioned whether injury no.1 was horizontal or vertical or transverse. (3) Injury no.4 was on palmer aspect of right hand inner side. (4) A mere catch will not cause injury No. 4. (5) The injury no.4 cannot be caused by snatching of rough substance. It is highly improbable, though not impossible. (6) Injury no.5 is possible only violent blunt force impact. (7) Injury no.5 included fracture of 3 bones in continuity with separation of the sagittal suture. (8) There was no swelling on the skull. Injury no.5 was found after dissection. (9) By congestion of brain is not meant blood clotting. (10) Injury No.5, 6 & 7 were found on dissection. (11) Prior to dissection I found injury no.1, 3 and 4 only. (12) I did not find swelling on any point of the body. (8) There was no swelling on the skull. Injury no.5 was found after dissection. (9) By congestion of brain is not meant blood clotting. (10) Injury No.5, 6 & 7 were found on dissection. (11) Prior to dissection I found injury no.1, 3 and 4 only. (12) I did not find swelling on any point of the body. (13) Since the injury no.1 was a surgical wound, I could say whether there was any laceration or any explorative surgery performed by the surgeon. (14) All the seven injuries were not as a result of the same blunt force impact in the same transaction. (15) The injuries are not impossible in a fall from a great height. By great height, I mean 6, 7 or more feet." 29. Thus from reading of the postmortem report as also the evidence of doctor C.W.1, it becomes clear that there were also two more separate injuries on two different parts of the body of the deceased apart from the head injury but, there is absolutely no explanation nor even a whisper in the case of the prosecution as with regard to giving of such injury on the person of the deceased. 30. This would require us to go to the evidence of P.W.8, the first doctor, who had examined the deceased within half an hour of the occurrence with more care and caution. In his cross-examination-in-chief, he had explained that there was only one injury on the person of the deceased, namely, lacerated injury over the left parital region size 3”X1/3”X scalp deep. A question would therefore arise that if there was only one injury which was quite consistent with the prosecution case, how could the C.W.-1, the doctor holding postmortem find seven injuries and at least three of them being distinct and separate to each other? The answer to this does not lie in the evidence of C.W.1 but in a careful examination of the evidence of P.W.8, the first doctor itself. The first doctor (PW8) had surprisingly prepared the injury report only on 24.4.1982 i.e. next day though he had claimed to have examined the deceased within half an hour of the occurrence on 23.4.1982. It has to be kept in mind that such explanation of P.W.8 came on 23.5.1989 and 4.7.1989 much after 11.2.1989 when the doctor C.W.1, holding the postmortem Dr. It has to be kept in mind that such explanation of P.W.8 came on 23.5.1989 and 4.7.1989 much after 11.2.1989 when the doctor C.W.1, holding the postmortem Dr. Upendra Prasad Verma, the professor and Head of Department of Forensic Medicine of Patna Medical College and Hospital, Patna on 11.2.1989 had already in his evidence given his aforementioned opinion as with regard to the presence of seven injuries on the person of the deceased. It is very significant to note here that the Investigating Officer vide Exbt.-3/1 had already prepared the requisition for injury report on 23.4.1982 at 12 noon and had sought the doctor’s opinion on such injury but, for the reasons best known, the doctor P.W.8 did not record the injury report and opinion on 23.4.1982 and what has been brought on record by way of Exhibit 3 also does not bear any date much less of 24.4.1982. Surprisingly the original Bed Head Ticket prepared on 23.4.1982 according to P.W.8 is said to have been also lost and the patient (deceased) is said to have been re-examined for preparation of the fresh Bed Head Ticket. On the top of such Bed Head Ticket Exhibit 9 which was proved by PW8 on 4.7.1989 in course of his recall for his further examination the expression used is duplicate which has been dismembered to give a look as of its being original. In such Bed Head Ticket (Exhibit 9), there is no mention about the number of injury and therefore, this Court will have no difficulty in holding that whatever was brought on record by the Doctor P.W.8 by way of his explanation of missing Bed Head Ticket or the belated injury report in course of his further examination on recall on the prayer of prosecution on 4.7.1989 after his earlier evidence had been recorded and closed on 16.12.1988 was with a calculated aim to only discredit the prosecution case. 31. In that view of the matter, we would could have easily rejected the entire evidence of P.W.8 the first doctor, had we found any support to the prosecution case even from the ocular evidence of there being any allegation of there being more than one assault on the person of the deceased. 31. In that view of the matter, we would could have easily rejected the entire evidence of P.W.8 the first doctor, had we found any support to the prosecution case even from the ocular evidence of there being any allegation of there being more than one assault on the person of the deceased. Unfortunately, the prosecution itself having confined its case on a single assault and making the version of P.W.8 more authentic and reliable than the C.W.-1, has done more harm than good to its own case. In the present case, in fact, there is a very disturbing fact, inasmuch as, the first doctor P.W.8 as noted above had found the injury on the head of the deceased on the left parital region that means on the left side of the head but, the doctor conducting postmortem, has found this injury to be on the right side of the head. There is no other injury on the head noticed by the P.W.8 save and except the only injury on the left parital region but, the doctor C.W.-1 conducting the postmortem has found as many as eight injuries out of whom 1, 3 & 4 are separate in nature. In that view of the matter, it cannot be said that there is a minor discrepancy as with regard to nature of injury in both the injury report of P.W.8 and the postmortem report of C.W.1. 32. As has been noticed above, in the cross-examination, C.W.-1 had clearly admitted that the seven injuries were not as a result of use of same blunt force and impact in the same transaction. There being however parrot like statement of all the eyewitnesses that there was only one injury given on the head, the findings of the doctor C.W.-1 noticing at least three distinguishable injuries would virtually undo the entire prosecution case specially when it is found that eyewitnesses have also tried to shift the place of occurrence i.e. from inside the shop to an open space outside the shop. 33. In the background of the aforementioned conclusion, when this Court proceeds to examine the evidence of P.W.10, the first Investigating Officer, it also becomes visible that the he had created a mess on account of his poor handling and conducting the investigation. 33. In the background of the aforementioned conclusion, when this Court proceeds to examine the evidence of P.W.10, the first Investigating Officer, it also becomes visible that the he had created a mess on account of his poor handling and conducting the investigation. It has to be always kept in mind and in fact stands admitted from the records as well that the Investigating Officer and in fact the senior police officers also got news of this incident immediately within half an hour of the occurrence and that is how the Investigating Officer had claimed to have reached the hospital closely on the heels of the injured reaching hospital. The Investigating Officer had also issued the requisition to the medical officer for preparation of the injury report at 1.30 PM on 23.4.1982 itself but, thereafter, he failed to record the statement of any person though a number of the family members of the injured were always present in the hospital. His such dubious conduct becomes in fact more visible in view of the fact that whatever has been produced by the prosecution by way of either bed head ticket (Exhibit 9) or Injury Register (Exhibit 8) or the injury report (Exhibit 3) in the pen and handwriting of PW8 do not go to show that on account of injury suffered by the deceased at the time he was being treated at Nawadah hospital, he (deceased) was unconscious and thus incapable of his giving statement to the police officer PW10. The Investigating Officer, however, in his evidence had claimed the injured (deceased) to be unconscious, contrary to the entry in Bed Head Ticket (Exhibit 9) or even in course of cross-examination as was admitted by P.W.8 the doctor himself. P.W.8 the Doctor in his evidence in the court has categorically stated that when he had started treating the deceased in an injured condition, he had not become unconscious but subsequently at 9 PM in the night i.e. after almost eight hours he had started developing some sort of complication of head injury. It therefore defies all sense of logic as to why the Investigating Officer did not make an attempt to record the statement of the deceased himself who was the best person to say about the occurrence. It therefore defies all sense of logic as to why the Investigating Officer did not make an attempt to record the statement of the deceased himself who was the best person to say about the occurrence. There is however no explanation to this crucial aspect either from the Investigating Officer or from any other witnesses and the whole thing has been sought to be sealed by the Investigating Officer by claiming that the deceased was fully unconscious when he had gone to the hospital, a fact which has been denied by other witnesses. 34. There is yet another aspect which would question the collusive role played by the Investigating Officer. Assuming that he is correct that the deceased was unconscious when he had gone to the hospital and he could also not find any other person to give his statement for recording fardbeyan at 1.30 PM on 23.4.1982 when he had issued the requisition for injury report (Exhibit 3/1) (which is of-course contrary to the evidence of the other eyewitnesses who have categorically stated that Brij Nandan the brother of the deceased, was throughout present in the hospital and in fact P.W.2, the servant of P.W.7 has also claimed the presence of P.W.7 in the hospital, which was also somehow partly admitted by P.W.7 who had said that he kept on visiting the hospital on 23.4.1982), the question still would as to why the police officer could not have himself recorded his own statement for its being treated as Fardbeyan. The police officer P.W.10, in the manner in which he has behaved in first twenty-four hours in either remaining dependent on the doctor P.W.8 for getting an information as with regard to the condition of the deceased or claimed to have visited the place of occurrence and hospital as many as on three occasions on 23.4.1982 before recording of the fardbeyan only on the next day after expiry of twenty-four hours on 24.4.1982 and in fact also after having inspected the shop being the place of occurrence, would only go to suggest that the real version was sought to be nipped in the bud only on account of either negligence or deliberate misconduct on the part of the Investigating Officer. 35. 35. As a matter of fact, such misconduct on the part of the Investigating Officer does not remain confined to only belated recording of the First Information Report but, in fact, the whole prosecution case gets a serious and severe jolt in his hands when it is found that the so-called recorded First Information Report on 24.4.1982 had reached the court after 48 hours on 26.4.1982. It, therefore, gives some strength to the submission of Mr. Rana Pratap Singh, learned Senior Counsel for the appellants, that the First Information Report was not even recorded on 24.4.1982 rather after the deceased had died at Patna on 24.4.1982 and the people including the Informant P.W.7 had returned with dead body to Nawadah on 25.4.1982 after the postmortem conducted at P.M.C.H. on 25.4.1982 and there was a massive protest and demonstration in the town on which alone the First Information Report was recorded sometime on 26.4.1982 and that is how it had reached the court closely situated to the police station at a distance of less than half a Kilometer only on 26.4.1982. No explanation has been in fact given by the Investigating Officer on this aspect of delayed receipt of the alleged First Information Report dated 24.4.1982 to have reached the court only on 26.4.1982 even when this aspect was specifically put to him in his cross-examination. 36. This Court is mindful that the delay in lodging of the First Information Report and its being received in the court can never be by itself the sole circumstance to doubt the entire prosecution case but, then, that would also contribute to the weakness of the prosecution case in hand because if there are other fatal infirmities in the prosecution case its benefit has to go to accused. Reference in this connection may be made to the judgment of the Apex Court in the case of Ishwar Singh Vs. State of U.P. reported in AIR 1976 SC 2423 as also in the case of Awadhesh & Anr. Vs. State of Madhya Pradesh reported in AIR 1988 SC 1158 and in the case of Meharaj Singh (L/Nk.) v. State of U.P., reported in (1994)5 SCC 188 . In the case of Meharaj Singh (supra) the Apex Court had held as follows: “12. Vs. State of Madhya Pradesh reported in AIR 1988 SC 1158 and in the case of Meharaj Singh (L/Nk.) v. State of U.P., reported in (1994)5 SCC 188 . In the case of Meharaj Singh (supra) the Apex Court had held as follows: “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution had led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. Even though the inquest report, prepared under section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR.......” 37. How far this delay in lodging of the First Information Report and its being dispatched after two days in the present case has adversely effected the prosecution has therefore to be found out from the other connecting circumstances. As noted above, in the First Information Report, there was no allegation against the appellant Upendra Singh who was not even named in the First Information Report. There was no question of any identification of another co-accused Shrawan Kumar but, even after belated version of the prosecution, the name of two persons were added by the Investigating Officer on a subsequent discovery made from the witnesses. As a matter of fact, the identification of co-accused Shrawan Kumar was made on the basis of T.I. Parade which however could not be upheld by the trial court itself and led to his acquittal. The fact that P.W.7 also did not identify the appellant Upendra Singh in court would also go a long way to show that the delay in the First Information Report and suppression of the earlier version of Brij Nandan, the other brother of the deceased, who, along with the deceased, had gone to PMCH, Patna for his treatment and had given his Fardbeyan to the Patna police without naming the appellant Uppendra Singh and where even the inquest report was prepared by the Patna police itself, was suppressed with a calculated aim to implicate the appellant Upendra Singh and thus giving an entire different version of the prosecution case. 38. 38. It is in this background that this Court has carefully looked into the other evidence on record and has found that on account of complete lack of imagination or sense of performing the duty by the first Investigating Officer P.W.10 followed by P.W.9 the second Investigating Officer that the prosecution could not even place its best case. It has to be noted that P.W.8, the treating Doctor at Nawadah Hospital is said to have disclosed to P.W.10 the first Investigating Officer as with regard to the removal of the injured Ram Nandan Prasad to PMCH but P.W.10 even then had made no efforts to find out this part of the movement of the deceased from Nawadah town to the city of Patna. As a matter of fact, the removal of deceased to PMCH, Patna again has two different timings. According to the doctor P.W.8, the reference of his being moved to Patna is in the night of 23.4.1982 itself at 9 PM whereas in the court it has been stated by him that the deceased in an injured condition was referred to the PMCH in the early morning on 24.4.1982. The informant PW7 has again its suppressed the version of treatment of deceased in P.M.C.H. and death of Ram Nandan Prasad in Patna and in fact there is nothing on record to show as to whether the deceased Ram Nandan Prasad was ever admitted in PMCH or was treated somewhere else in Patna. The only suggestion given from the inquest report prepared in the PMCH casualty ward at about 9.15 PM on 24.4.1982, by no stretch of imagination, would also lead to establising the theory of Ram Nandan Prasad being actually treated in PMCH. P.W.6, in this regard being a family member, the uncle of the deceased, whose signature is found on the inquest report, has also given no detail about Ram Nandan Prasad being admitted in the PMCH or being treated over there. 39. P.W.6, in this regard being a family member, the uncle of the deceased, whose signature is found on the inquest report, has also given no detail about Ram Nandan Prasad being admitted in the PMCH or being treated over there. 39. In that view of the matter, if another version was given by Brij Nandan, the brother of the deceased that ought to have been allowed to made part of the prosecution case which then would have at best led to benefit only in favour of the appellant Upendra Singh not named in the version of Brij Nandan, but, then, as rest of them were named by him, the prosecution could have established this case on the basis of leading the evidence of Brij Nandan. In this regard, what is really shocking and surprising for this Court to note is that the first Investigating Officer P.W.10 was changed on 25.4.1982 i.e. within twenty-four hours of recording of the First Information Report and thereafter it is the second Investigating Officer P.W.9 who had conducted the investigation from 25.4.1982 to 4.5.1982 and that despite appearance of Brij Nandan before him on 3.5.1982 in the police station, he did not care to record his statement. Having failed to understand as to why this was done by the second Investigating Officer, this Court has just looked into paragraph no.65 of the case diary to clarify its own vision and from the same it is found that since Brij Nandan had given an entire different manner of occurrence including the names of the assailants as also the description of the weapon, which according to him was iron rod and not wooden plank that the version of Brij Nandan was completely given up by the prosecution on account of the dubious role played by the second Investigating Officer as well. The very fact that Brij Nandan was not even made a charge-sheet witness despite consistent version of all the other witnesses that it was Brij Nandan who had remained with the deceased throughout either in Nawadah hospital or in Patna, would really defy all sense of logic as to why the prosecution had withheld Brij Nandan. 40. Thus, in our considered opinion non-examination of Brij Nandan is a fatal incurable infirmity. 40. Thus, in our considered opinion non-examination of Brij Nandan is a fatal incurable infirmity. In this regard we may usefully refer to the judgment of the Apex Court in the case of Ishwar Singh v. the State of Uttar Pradesh, reported in AIR 1976 SC 2423 , wherein it was held as follows: “It is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined. Hence, where some of the eye-witnesses to the occurrence named in the F.I.R. who are important witnesses for the unfolding of the prosecution case are kept back without giving any explanation, the non-examination of these witnesses acquires a special significance in view of the discrepancy between the F.I.R. and the version of the occurrence given by the prosecution in Court. The Court has to take into account these circumstances in considering the probabilities of the case.” 41. In the light of the aforementioned discussions, we are constrained to observe that there are three villains who have literally destroyed the prosecution case, namely, P.W.8 the doctor, who had firstly examined the injuries of the deceased as also P.W.10 and P.W.11 the two Investigating Officers. We have tried also to segregate their evidence because of their collusive role played in almost their bid to support the defence story but, then, as we find no positive evidence in favour of the prosecution case so as to fit with the rest of the prosecution story specially in the background of the material observations made by C.W.1, the doctor holding postmortem, we will have no option but to hold that the prosecution did not itself care to prove its case much less beyond reasonable doubt. 42. Having held so we would fail in our duty if we do not adopt the course laid down by the Apex Court in the case of Dayal Singh & ors. 42. Having held so we would fail in our duty if we do not adopt the course laid down by the Apex Court in the case of Dayal Singh & ors. v. State of Uttaranchal, reported in (2012)8 SCC 263 , wherein it was held as follows:- “47.5 We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.” 43. We would, accordingly, direct that appropriate disciplinary action be taken against Dr. Brahmdeo Prasad Singh, the then Civil Assistant Surgeon, Nawadah (P.W.8), Raj Kishore Singh, the then Sub-Inspector of Police, Nawadah Town Police Station (P.W.9) and Sitaram Singh, the then Officer In-charge of Nawadah Town Police Station. We would, accordingly, direct the Principal Secretary of the Health Department and the Home Commissioner, Bihar to initiate disciplinary action against the aforementioned three officers irrespective of the fact whether they are continuing in service and have been retired. 44. We would, accordingly, direct the Principal Secretary of the Health Department and the Home Commissioner, Bihar to initiate disciplinary action against the aforementioned three officers irrespective of the fact whether they are continuing in service and have been retired. 44. It is here that we have also gone into the other part of the defence case to find out the broad probability of there being a case and counter case with regard to the same occurrence but, then, again if the defence has also failed to explain the reason for the delayed recording of the First Information Report almost after twenty-four hours there is also no explanation by the defence that despite the appellant Lalo Singh having a head injury on his head, as has been clarified by the doctor P.W.8 in his evidence in court, his not lodging the First Information Report before P.W. 10 the first Investigating Officer, who had definitely arrived at the hospital immediately after the arrival of both the deceased and the appellant Lalo Singh would put a big question mark on the veracity of counter case. True it is that some of the defence documents would bear out injuries on the persons of appellant Lalo Singh which also received support from the Doctor P.W.8 but, then, having regard to the conduct of the Doctor P.W.8 as discussed above, we would not give much weightage to such injuries found on the person of appellant Lalo Singh specially when the presence of such injury was denied by all the prosecution witnesses. There being no other defence or the appellant Lalo Singh himself being not examined as a defence witness, we do not know as to in what manner the said injuries were sustained by him specially when the nature of such injury also is more or less superficial in nature. We, therefore, would not give much weightage to the defence version of the present prosecution case to be an aftermath or a counter version specially if we go by the turn of events from which it is found that the F.I.R. given on 24.4.1982 by appellant Lalo Singh leading to institution of Nawadah P.S. Case No. 107 of 1982 was only by way of a creation of his own defence and recorded on 24.4.1982 after the present case of the prosecution had been recorded as Nawadah P.S. Case NO. 106 of 1982. 45. 106 of 1982. 45. Having thus held that the defence case i.e. counter case does not inspire confidence, we still have to test the prosecution case on its own merit because the prosecution cannot succeed merely on account of weakness in defence version. Reference in this connection may be made to the judgment of the Apex Court in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, reported in AIR 1964 SC 1563 , wherein it was held as follows: “It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution therefore in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution.” 46. In this connection we may also refer to the judgment of the Apex Court in the case of Sate of U.P. v. Ram Swarup & anor., reported in (1974) 4 SCC 764 , in which it was held as follows:- “9. The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralized nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial.” 47. The same view has been also taken by the Division Bench of this Court in the case of Jagdeo Yadav & ors. v. the State of Bihar, reported in 2007(2) PLJR 666 , wherein it was held as follows:- “40. In a criminal case the burden of proving the charges beyond reasonable doubts is always upon the prosecution party. The defence, if it comes out with a specific case must prove some basic facts to make its defence probable or to create reasonable doubts in the case of prosecution. In a criminal case the burden of proving the charges beyond reasonable doubts is always upon the prosecution party. The defence, if it comes out with a specific case must prove some basic facts to make its defence probable or to create reasonable doubts in the case of prosecution. It is not the duty of the defence to prove its case to the hilt and establish counter charges.” 48. The discussion, however, made by us in preceding paragraphs would itself go to show that there is complete want of consistent and reliable evidence to prove the charge against the appellants and thus they are entitled at least to be given benefit of doubt. 49. Thus to conclude, we are of the view that the prosecution case, on account of its own inherent fatal infirmities, as noted above, cannot be said to have proven beyond reasonable doubt against any of the appellants. 50. In the result, all the four appeals are allowed and the impugned judgment of their conviction is hereby set aside. 51. Since all the appellants are on bail, they would now also stand discharged from the liability of their respective bail bonds.