JUDGMENT (ORAL) SHYAM KISHORE SHARMA, J.:- As both the above appeals have arisen out of a judgment of conviction and order of sentence dated 25.01.1988 passed by Additional Sessions Judge II, Patna in Sessions Trial No. 92 of 1988, they have been heard together and are being disposed of by this common judgment. 2. By the impugned judgment appellant Lal Bihari Singh alias Lal Bihari Yadav (Cr. Appeal (DB)No. 42 of 1989) was found guilty under Section 302/109 of the Indian Penal Code, whereas, appellant Madan Singh alias Madan lal Singh (Cr. Appeal (DB) No. 93 of 1989) has been found guilty under Section 302 of the Indian Penal Code and both of them have been sentenced to undergo imprisonment for life. Other seven accused persons namely, Surendra Singh, Suresh Singh, Baleshwar Singh, Sidheshwar Singh, Mahesh Singh, Ganesh Singh and Sakaldip Singh who were also put on trial along with these two accused/appellants were not found guilty and they were acquitted. 3. The appeal relates to an occurrence of 24th May, 1987 at 9.00 A.M. wherein Ram Pravesh Singh, elder brother of informant Bijendra Singh (Yadav), sustained injury and was taken to Patna Medical College & Hospital for further treatment but he died there. The fardbeyan (Ext.4) was recorded at 11.00 A.M. on 24.05.1987 at Gaurichak Bazar wherein the informant (P.W.6 Bijendra Singh) stated that at preceding 9.00 A.M. when his elder bother Ram Pravesh Singh (deceased) was taking his buffalo towards Gaurha Kandri Khandha and in contiguity Madan Singh and Lal Bihari Singh had their lands, they started abusing which was objected by the informant’s brother. Then Lal Bihari Singh exhorted his son Madan Singh to kill Ram Pravesh Singh. Madan Singh rushed towards his house and returned with Bhala and struck it on the stomach of Ram Pravesh Singh. Informant’s brother received injury and fell down on the earth and his intestine came out. On cry of Lal Bihari Singh, his other persons namely, Suresh Singh, Surendra Singh both armed with guns, Baleshwar Singh, Sidheshwar Singh, Mahesh Singh, Ganesh Singh, all armed with farsa and Sakaldip Singh armed with lathi reached there. Seeing assemblage of these persons, the informant did not raise any voice. The occurrence was witnessed by villages Medan Singh (P.W.5), Barhan Singh (not examined) and Chathuri Rai (Sipahi Rai) P.W.2. Thereafter, the injured was carried to Patna for treatment. Seeing assemblage of these persons, the informant did not raise any voice. The occurrence was witnessed by villages Medan Singh (P.W.5), Barhan Singh (not examined) and Chathuri Rai (Sipahi Rai) P.W.2. Thereafter, the injured was carried to Patna for treatment. The informant met with P.W.9 who recorded his statement. The informant’s mother (not examined) was also assaulted by fists and slaps. The informant signed the fardbeyan. The signature of the informant has been marked as Ext.1. Initially the case was registered under Sections 144, 307, 324 and 341 of the Indian Penal Code and investigation commenced. In course of treatment the injured died. Inquest report (Ext.5) was prepared. Section 302 of the Indian Penal Code was added on 03.06.1987. In course of investigation, copy of injury report (Ext.2) was obtained on 20.06.1987 whereas post mortem report (Ext.3) of Ram Pravesh Singh was obtained on 25.07.1987. The informant was not satisfied with the manner of investigation of the case, so he filed a protest petition on which he put his signature (Ext.1/1). The occurrence was supervised by the Dy. S.P. (P.W.10) and supervision note has been brought on record as Ext.6. After completion of investigation, charge sheet was submitted. Cognizance was taken and the case was committed to the court of sessions where after appearance of the accused persons charges were framed and explained to the accused persons to which they pleaded innocence. Hence trial proceeded. 4. The defence of the accused persons was of false implication and also that the occurrence has not taken place in the manner as alleged and the implication of the accused persons is at the behest of one Dilip Singh who was on inimical terms. 5. In order to substantiate its case, the prosecution examined 11 witnesses. They are : P.W.1 Ragho Singh, P.W.2 Sipahi Singh alias Chathuri Rai, P.W.3 Gopal Singh, P.W.4 Lalita Kumari, P.W.5 Medni Singh, P.W.6 Bijendra Singh, informant of the case, P.W.7 Dr.Kamleshwar Mishra, P.W.8 Dr.Ram Krishna Pd.Singh, P.W.9 Bhaiya Pradeep Kumar Sinha,the Investigating Officer of the Case, P.W.10 Ram Kripal Singh who had supervised the case and P.W.11 Sachchidanand Sinha. 6. Two defence witnesses were examined. 6. Two defence witnesses were examined. They are : D.W.1 Ramjee Singh who has produced a fardbeyan and a formal F.I.R. which have been marked as X and X/1 for identification and D.W.2 Braj Kishore Singh who was posted as Literate Constable in the office of Superintendent of Police (Rural) and has brought some documents which have been marked as Exts. A to E. 7. The trial court after hearing learned counsel for the parties and considering the oral and documentary evidences on record came to the conclusion that the prosecution has been able to prove charge only against two accused namely, appellants Lal Bihari Singh alias Lal Bihari Yadav and Madan Lal Singh alias Madan Singh and other seven accused persons were not found guilty, so they were acquitted, as stated above. 8. This Court is required to reappraise the evidences on record and to see as to whether there were materials available on record to prove the charge against these appellants beyond the shadow of all reasonable doubts or not. 9. We think it appropriate first to deal with the medical evidences. The post mortem over the dead body of the deceased Ram Pravesh Singh was held on 26.05.1987 by P.W.8 Dr.Ram Krishna Pd.Singh who was posted as Associate Professor in Forensic Medicine in P.M.C.H. and has found following ante mortem injuries: (i)Abrasion of ½” diameter on the right knee on the front. (ii)Stitched wound 10”x1/2”x abdominal cavity deep on the front of abdomen placed obliquity from above downward, from the lower part of the xiploid to middle of the right plank of abdomen. A drainage sheet was attached in its lateral lower part at the right plank of abdomen. (iii)A drainage sheet was attached by a stitched wound of size 1”x1/2”x abdominal cavity deep on the right lower plank of the abdomen. (iv) Liver was found repaired at one place by stitches on the front in length 2 ½”. (v) Stomach was found repaired at one place posteriorily by stitches in length 1 ½”. (vi) The mesentery was found repaired by stitches at one place in length 1”. (vii) The peritoneal cavity continued 100 C.C. of blood mixed with pus. (viii)Viscera in general was pale. Death occurred within 24 hours of the examination and it was due to abdominal injuries. The opinion regarding nature of weapon could not be given on account of surgical interference. (vii) The peritoneal cavity continued 100 C.C. of blood mixed with pus. (viii)Viscera in general was pale. Death occurred within 24 hours of the examination and it was due to abdominal injuries. The opinion regarding nature of weapon could not be given on account of surgical interference. The abdominal cavity had been opined and internal damages were repaired before his examination. The post mortem report shows that Ram Pravesh Singh received injuries upon his abdomen which proved fatal. 10. The prosecution case is that the injured was taken to P.M.C.H. for treatment where treatment was done by P.W.7 Dr. Kamleshwar Mishra. He has deposed that on 24.05.1987 he was posted at P.M.C.H. Patna as Resident Surgeon and on that date his duty was in surgical emergency and he was attached with the unit of Prof.S.N.Sinha. On that date, he examined Ram Pravesh Rai in surgical emergency and found following injuries on his person: (i)Incised wound 3”x2” throughout interior abdominal wall omentum coming out through the wound over epigastrium. (ii) Incised wound 5”x1”x throughout abdominal wall. Gut coming out through the wound over right lumber region. According to opinion of this doctor, both the injuries were caused within six hours of examination. The injuries were caused by sharp cutting and penetrating instrument. Both the injuries were grievous in nature and were dangerous to life. With regard to nature of injuries, the doctor was cross-examined and in paragraph 4 of his evidence he has deposed that there would be sufficient internal and external bleedings on account of the injuries which Ram Pravesh Rai had received. The important aspect of the evidence of this witness is that the patient was conscious but the police took no step for his statement. This witness has proved that Ram Pravesh Rai was admitted in PMCH with bhala injury in his abdomen. 11. Now the oral evidence of other witnesses is to be seen. P.W.6 Bijendra Singh is the informant of this case. He has stated in his evidence that it was the month of jeth and the day was Sunday and at 9.00 in the morning he saw that Madan Lal Singh alias Madan Singh came with bhala and assaulted Ram Pravesh Singh at the behest of Lal Bihari Yadav. P.W.6 Bijendra Singh is the informant of this case. He has stated in his evidence that it was the month of jeth and the day was Sunday and at 9.00 in the morning he saw that Madan Lal Singh alias Madan Singh came with bhala and assaulted Ram Pravesh Singh at the behest of Lal Bihari Yadav. At the relevant time, Suresh Singh having gun, Surendra Singh having gun, Mahesh Singh armed with Farsa, Ganesh Singh armed with Farsa, Baleshwar Singh having Farsa and Sidheshwar Singh having Farsa, appellant Lal Bihari Singh was not having any arm and Sakaldeo Singh having lathi encircled Ram Pravaesh Singh. This witness has further stated that Madan Singh got a Bhala from his house and gave two bhala blows: one in the stomach and another upon nucleus. The impact of the injuries brought omentum outside. The injured was carried to PMCH by P.W.2 Chathuri Rai (Sipahi Rai) where he was given treatment. On the next day, Ram Pravesh Singh died. This witness has stated that the occurrence was witnessed by Gopal Singh (P.W.3), Sipahi Rai alias Chathuri Rai (P.W.2), Medni Singh (P.W.5), Lalita Kumari (P.W.4) and others. The fardbeyan was recorded at noon and when it was found correct, the informant put his signature on it. The informant got suspicion regarding impartiality of the investigation, so he filed a protest petition. This witness has deposed that many persons were working in the field of vicinity. He has stated in his deposition that two bhala blows were given to his brother Ram pravesh Singh. The fardbeyan was recorded by P.W.9 and when his attention was drawn towards his evidence, then he in paragraph 17 has given another version and has denied that any such statement was given by the informant that two bhala blows were given to the deceased. 12. Learned senior counsel appearing for the appellants has submitted that story of introduction of two bhala blows was inflated later on because the doctor has found two ante mortem injuries- both caused by sharp cutting weapon, so there is interpolation in the fardbeyan after recording the case. Initial fardbeyan has been brought on the record which describes the manner of assault wherein the informant has stated that one bhala blow was given to Ram Pravesh Singh by Madan Lal. Initial fardbeyan has been brought on the record which describes the manner of assault wherein the informant has stated that one bhala blow was given to Ram Pravesh Singh by Madan Lal. There is serious interpolation in the fardbeyan and that interpolation has not been initialed which has altogether tried to twist the case. The manner of occurrence has been tried to be altered and the introduction of two injuries came subsequently. The attention of P.W.9 was drawn towards the interpolation of one more bhala blow by Madan Lal but he has stated that he had not made any such overwriting rather in paragraph 12 of his evidence he denied that overwriting. He has expressed total ignorance as to who was the author of the said overwriting. Therefore, the fardbeyan which is the basis of the prosecution case has come under cloud. Nobody has claimed that he has made such change in the fardbeyan which was the initial version of this witness P.W.6. It appears that the evidence of two bhala blows has been tried to be explained by making some interpolation in the fardbeyan which was belatedly received. So the fardbeyan cannot be said to be any piece of evidence. The informant has cited Sipahi Rai and Medni Singh. Their names have been mentioned in the fardbeyan as witnesses. Sipahi Rai P.W.2 though has claimed himself to be an eye witness of the occurrence before the trial court but in the fardbeyan it is stated that he reached the place of occurrence after the occurrence occurred. The Investigating Officer P.W.9 in paragraph 9 of his evidence has stated that P.W.2 Sipahi Rai had stated that he rushed to the place of occurrence after hearing the noise and saw the injured. The evidence of P.W.2 before the trial court in view of evidence of P.W.9 does not inspire confidence because he has given altogether a different version at two places- one in his statement under Section 161 of the Code of Criminal Procedure and another before the trial court. Therefore, his evidence cannot be said to be reliable. 13. Another F.I.R. named witness is P.W.5 Medni Singh. He has stated that he reached the place of occurrence immediately and was told by Gopal, Bijendra Rai (P.W.6) and Ragho Rai (P.W.1) that Madan Lal had struck Bhala blow. Therefore, his evidence cannot be said to be reliable. 13. Another F.I.R. named witness is P.W.5 Medni Singh. He has stated that he reached the place of occurrence immediately and was told by Gopal, Bijendra Rai (P.W.6) and Ragho Rai (P.W.1) that Madan Lal had struck Bhala blow. Before the trial court P.W.5 has not claimed to be an eye witness of the occurrence rather he himself has claimed to be a witness because he reached the place of occurrence after the occurrence occurred and knew about the occurrence through some persons. Therefore, this witness cannot be said to be an eye witness of the occurrence and he is at best a hearsay witness. This is all the evidence of the witnesses who are F.I.R. named witnesses. 14. Other two witnesses have been examined as eye witnesses. They are P.Ws 1 and 3. The informant has given a detailed version of the occurrence. He has named the persons who have witnessed the occurrence wherein he has named P.W.5 Medani Singh, P.W.2 Sipahi Rai alias Chathuri Singh and Barhan Singh(not examined) only. The informant has not named Ragho Singh (P.W.1) and Gopal Singh (P.W.3) as witnesses of the occurrence. If the witnesses who have been named in the F.I.R., not fully supported the prosecution case, then it would not be prudent to rely upon the evidences who are not mentioned as witnesses in the F.I.R. 15. The fact is that the evidence which has come on record is that the injury of the deceased was of such nature which has resulted into profused bleeding. That is a circumstance of evidence. This oral evidence has been supported by the doctor. Therefore, the persistent evidence to cause bleeding is worth of acceptance. The occurrence is of 9.00 A.M. in the month of May. The investigating Officer had gone to the place of occurrence just at Noon and when his attention was drawn regarding existence of the blood at the place of occurrence, the Investigating Officer in paragraph 8 of his evidence has emphatically denied the presence of blood at the place of occurrence. There is no evidence that either rains had washed the trail of blood or somebody had washed the place of occurrence. There is no evidence that either rains had washed the trail of blood or somebody had washed the place of occurrence. The examination of the place of occurrence is just after three hours of the occurrence but blood was not found there and the evidence is that the injury was such which might have caused bleeding. Thus the place of occurrence is not said to have been established. It appears that the prosecution has not complained anywhere that the Investigating Officer has not given correct version with regard to the place of occurrence. 16. Another important evidence of the prosecution is the evidence of P.W.7 who had given treatment to Ram Pravesh Singh. P.W.7 was posted as Resident Surgeon in PMCH. The evidence of this witness is that the patient was conscious but surprisingly no step was taken to take his dying declaration as clinching. There is no explanation as to why no step was taken by the police even to record the dying declaration. When the treatment was going on, the police remained there throughout. Non-taking of any step to record dying declaration is a serious laches upon which it can be said that the prosecution has not discharged its own duty in bringing on record the best evidence which might have been the dying declaration of the deceased. 17. Learned counsel appearing for the State assisted by learned counsel for the informant has submitted that the aforesaid laches are not of such nature which caused prejudice to the prosecution. 18. From the discussion made above, it is apparent that the evidence brought on record do not establish the place of occurrence and manner of occurrence and the interpolation in the fardbeyan has remained unexplained. The dying declaration which might have been the important evidence has not been brought on the record and there is no explanation as to why no step was taken. These are the circumstances which go to show that the prosecution has not come with correct version. As such the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts and once doubt is created, then the benefit of the same is to be given to the accused persons. Thus the appellants deserve to be acquitted. 19. In the result, the judgment of conviction and order of sentence is set aside. Both the above appeals are allowed. Thus the appellants deserve to be acquitted. 19. In the result, the judgment of conviction and order of sentence is set aside. Both the above appeals are allowed. The appellants of both the appeals are acquitted of the charges. They are discharged from the liabilities of their respective bail bonds. Appeal allowed.