JUDGMENT Per D.N. Patel, J.: 1. Both the appeals have been preferred by the appellants against the judgment and order of conviction and sentence passed by learned Sessions Judge, Jamtara in Sessions Case No. 278 of 1993/244 of 2001. By this judgment and order of conviction dated 13th/17th September, 2002, the present appellants in both the appeals have been convicted for the offence under Section 302 to be read with Section 34 of the Indian Penal Code to undergo life imprisonment. Shiblal Murmu, who is appellant No. 1 in Criminal Appeal No. 640 of 2002 has expired as submitted by learned A.P.P. Hence the appeal is abated so far as the case of Siblal Murmu is concerned. 2. It is a case for prosecution that Fuchu Soren gave his statement before Umesh Kumar Singh, Sub-Inspector of Police of Jamtara Police Station, that on 26th of July 1992 at about 5 AM when he was ploughing the field at that time Sushil Murmu (appellant of Criminal Appeal No. 699 of 2002) having tangi (sharp cutting instrument) with him came with other co-accused who were carrying lathi with them. They all surrounded him, the accused Vishnu Murmu gave order to kill Fuchu Soren, thereupon accused Vishnu Murmu, Shiblal Murmu, Aashu Murmu assaulted with lathi and then Jadu Murmu gave a lathi blow and Sushil Murmu gave tangi blow on his head, thereafter Sushil Murmu and Vishnu Murmu both assaulted with stone. During these assaults, one Sri Rashik Hasda (who was never examined as prosecution witness, though cited as witness in the charge-sheet), who was of the same village, was passing through the place of occurrence. The accused persons assaulted upon him and he fled him away therefrom. In the meanwhile, mother of Fuchu Soren-Barki Murmu (P.W. 2) came at the field and saw the occurrence and started raising alarm. Due to severe injuries, he became unconscious and he was brought to Jamtara Hospital. Fardbeyan of Fuchu Soren was recorded on 26th July 1992 at 11.45 hours. F.I.R. was lodged on 27th of July 1992 and it has reached to the concerned Court on 28th of July 1992. Fuchu Soren, who has given fardbeyan on 26th of July, 1992 at 11.45 hours, has expired on 28th of July 1992. Fardbeyan of Fuchu Soren was recorded on 26th July 1992 at 11.45 hours. F.I.R. was lodged on 27th of July 1992 and it has reached to the concerned Court on 28th of July 1992. Fuchu Soren, who has given fardbeyan on 26th of July, 1992 at 11.45 hours, has expired on 28th of July 1992. Thereafter the police carried out investigation and recorded the statements of several witnesses and filed charge-sheet and the case was committed to the Sessions Court as Sessions Case No. 278 of 1993/244 of 2001 and upon depositions of prosecution witnesses from P.W. 1 to P.W. 6, the learned Trial Court has convicted these appellants for the offence of committing murder of Fuchu Soren for life imprisonment. Against this judgment and order of conviction and sentence, the present appeals have been preferred by the appellants. 3. We have heard counsel for both the sides and they have submitted that P.W. 2 and P.W. 6 are not an eye witnesses at all as they have reached the scene of occurrence later on, after the incident was over. This aspect of the matter has been stated by the P.W. 2 in her deposition at paragraph No. 14. P.W. 2 has further stated that when she had reached the place of occurrence there was no one else thus, she excludes the presence of P.W. 6. It is also submitted by counsel for the appellants that P.W. 6 in his cross-examination in paragraph Nos. 13 and 14 has stated that he reached the scene of offence after the occurrence was over. Moreover, there is no statement made by P.W. 6 before investigating officer, thus, without sec. 161 statement, P.W. 6 has given his deposition before the Court. Statements of P.W. 6 recorded in paragraph No. 13 has been controverted by the prosecution without declaring P.W. 6 as hostile witness. No investigating officer has been examined in this case, thus, neither P.W. 2 nor P.W 6 are eye witnesses. P.W. 6 has given statement for the first time in the Court. It is also submitted by counsel for the appellants that there is gross delay in recording the F.I.R after recording fardbayen of the deceased and there is also gross delay in sending the F.I.R. to the concerned Additional Chief Judicial Magistrate, Jamtara. P.W. 6 has given statement for the first time in the Court. It is also submitted by counsel for the appellants that there is gross delay in recording the F.I.R after recording fardbayen of the deceased and there is also gross delay in sending the F.I.R. to the concerned Additional Chief Judicial Magistrate, Jamtara. The incident has taken place on 26th of July, 1992 at about 5 AM, fardbeyan/statement of Fuchu Soren was recorded on the same day at about 11.45 AM, First Information Report was lodged on 27th July, 1992 and the same was reached to the Court of the Additional Chief Judicial Magistrate, Jamtara on 28th July, 1992. It is also submitted by the counsel for the appellants that no plausible explanation has been given by the Investigating Officer for delay in recording the First Information Report and delay in transmitting the First Information Report to the concerned Judicial Magistrate. 4. It is further submitted by counsel for the appellants that fardbeyan cannot be treated as dying declaration because fardbeyan is not proved at all. Neither police officer, who has recorded the statement, nor the doctor (who was present in Jamtara hospital when Fuchu Soren was admitted) has been examined in this case. Mainly for the reason that in the fardbeyan Fuchu Soren has stated that he became unconscious after the assault. Similarly, P.W. 2 has also stated in paragraph Nos. 6 and 7 that when her son Fuchu Soren was brought to the Hospital at Jamtara, he was unconscious. P.W. 2 also stated in paragraph No. 7 on her deposition that the statement of Fuchu Soren was recorded on the very next day. The statement of Fuchu Soren recorded on next day i.e. on 27th July 1992, was not brought on record at all. Thus nobody knows when Fuchu Soren was conscious for giving his statement before the police. Counsel for the appellants has relied upon the decisions rendered by the Supreme Court in the case of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) reported in (2005) 5 SCC 258, in the case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272 and in the case of Shivlal and Another Vs. State of Chhattisgarh reported in (2011) 9 SCC 561. State (NCT of Delhi) reported in (2005) 5 SCC 258, in the case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272 and in the case of Shivlal and Another Vs. State of Chhattisgarh reported in (2011) 9 SCC 561. It is submitted by the counsel for the appellants that this aspect of the matter has not been appreciated by the learned trial court that neither P.W. 2 nor P.W. 6 are the eye witnesses. There is delay in recording the First Information Report and fardbeyan cannot be treated as a dying declaration. Non-examination of Investigating Officer is fatal to the case of prosecution looking to the deposition of paragraph Nos. 6 and 7 of P.W. 2 and looking to paragraph Nos. 13 and 14 of P.W. 6 and therefore the judgment and conviction of sentence passed by Sessions Judge, Jamtara in Sessions Case No. 278 of 1993/244 of 2001 deserves to be quashed and set aside. It is submitted by counsel for the appellants that accused Jadu Murmu and Aashu Murmu have already been granted bail by suspending the sentence awarded by the trial Court, whereas appellant Sushil Murmu has remained in judicial custody since 2003 and, thus, he remained in jail for approximately eleven years and four months. 5. We have heard counsel for the State-APP, who has vehemently submitted that it is the case of prosecution whereupon P.W. 2 and P.W. 6, who are mother and brother of the deceased respectively, they have clearly narrated the role played by these appellants in causing murder of Fuchu Soren. Moreover, Fuchu Soren has given his statement before the police on 26th July, 1992 at about 11.45 hours in which he had also given detailed narration of the assault upon him by these appellants and he had accepted that he had been assaulted by these appellants and he has expired on 28th July, 1992, thus the fardbeyan/statement of Fuchu Soren before the police is a dying declaration. Fardbeyan has been proved by P.W. 5, who has signed fardbeyan, which is marked as Ext. 2 and who is son-in-law of P.W. 2. It is also submitted by learned counsel for the State that medical evidence given by P.W. 1 is corroborating to the evidence given by the eye witnesses. Fardbeyan has been proved by P.W. 5, who has signed fardbeyan, which is marked as Ext. 2 and who is son-in-law of P.W. 2. It is also submitted by learned counsel for the State that medical evidence given by P.W. 1 is corroborating to the evidence given by the eye witnesses. This aspect of the matter correctly appreciated by the learned Trial Court and hence these appeals cannot be entertained by this Court. 6. Having heard counsels for both the sides and looking to the evidences on record, it appears that whole incident had taken place on 26th July, 1992 at 5 AM, Fuchu Soren was assaulted by these appellants as per the case of prosecution. After assault Fuchu Soren became unconscious as per fardbeyan/statement made by Fuchu Soren before police, he was brought to Jamtara Hospital. His statement was recorded on the same day at about 11.45 hours, in which he has stated that when he was ploughing his field he was assaulted by these appellants by lathi and tangi (sharp cutting instrument) and at that time Rashik Hansda, who is co-villager and independent witness was passing through the place of occurrence, he was also assaulted by these appellants but he was successful in running away, though the name of this witness was mentioned in the charge sheet as a prosecution witness, but for no justifiable reasons he has not been examined. Thereafter his mother came on the field and she saw the occurrence, who is examined as P.W. 2 and thereafter he was brought to the Hospital at Jamtara. The motive alleged in the First Information Report is that if Fuchu Soren expires, the property which was an ancestral property will go to the assailants, thus, it appears that P.W. 2 is an eye witness and son of P.W. 2 or the brother of Fuchu Soren, who is P.W. 6 is an eye witness. Fuchu Soren has expired on 28th July 1992 (In the judgment delivered by the learned Trial Court there is some factual error that Fuchu Soren has expired on 3rd August, 1992) because on 3rd August, 1992 offence under Section 302 was added to the First Information Report. 7. Looking to the evidence of P.W. 2, who is mother of the deceased and claiming to be an eye witness. It appears that she has stated in paragraph Nos. 7. Looking to the evidence of P.W. 2, who is mother of the deceased and claiming to be an eye witness. It appears that she has stated in paragraph Nos. 13 and 14 that Aashu Murmu was dragging her towards her house when the assault was going on. Thus it appears that Aashu Murmu has not caused injury upon body of victim. She has further stated that there was nobody else then P.W. 2 when the appellants were assaulted upon his son Fuchu Soren, thus, P.W. 2 excludes the presence of P.W. 6. Moreover P.W. 2 has stated in paragraph 6 that when Fuchu Soren has taken at Jamtara Hospital he was unconscious. No body knows when Fuchu Soren get the consciousness for giving his fardbeyan/statement to the police on 26th July 1992 at 11.45 hours. Similarly P.W. 2 has also submitted in paragraph 6 of his deposition on the next day of incident, statement of Fuchu Soren was recorded. The statement of Fuchu Soren recorded on the next day has not been brought on record at all by the prosecution, thus, it appears that as on the date of incident Fuchu Soren-cum-victim who expired on 28th July, 1992 was unconscious and his statements must have been recorded on 27th July, 1992, but the prosecution has failed to produce the statement on record of the Session Trial. 8. Looking to the deposition of P.W. 2, there are several inconsistencies in her deposition, specially looking to the cross examination of this witness, her version given in the examination-in-chief is being distinguished in the cross examination. So far as motive is concerned, by murder of Fuchu Soren, property will not be given to the accused because P.W. 2 is the another son of P.W. 6. Moreover, P.W. 2 has a daughter also and her son-in-law is also examined as P.W. 5, thus, how the property will go to the accused that is not clear to the prosecution. Thus P.W. 2 is not a reliable and trustworthy witness. It appears that P.W. 2 is not eye witness at all, she has reached the place of occurrence later on after the alleged occurrence is over. 9. Looking to the deposition of P.W. 6, who has stated in paragraph 13 of his deposition that he has never given statement before Investigating Officer. It appears that P.W. 2 is not eye witness at all, she has reached the place of occurrence later on after the alleged occurrence is over. 9. Looking to the deposition of P.W. 6, who has stated in paragraph 13 of his deposition that he has never given statement before Investigating Officer. Neither P.W. 6 has been declared hostile nor the investigating officer has been examined by the prosecution. It has been held by Hon'ble Supreme Court in the case of “Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi)”, reported in (2005) 5 SCC 258, in para 30 as under:- “Para-30: A similar question came up for consideration before this Court in Raja Ram Vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared 'hostile'. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.” (Emphasis supplied) 10. In view of the aforesaid decision, if an eye witness who is not declared hostile and if he is making statement in favour of the defence, the defence or accused shall take advantage of his deposition. Similar view has been taken in another decision rendered by the Hon'ble Supreme Court in the case of “Raja Ram Vs. State of Rajasthan”, reported in (2005) 5 SCC 272 in paragraph 9 thereof reads as under:- “Para-9: But the testimony of PW 8, Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellants and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to hear (sic declared) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to hear (sic declared) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined.” (Emphasis supplied) 11. In view of this decision, it appears that P.W. 6 has not been declared hostile looking to paragraph-13. His statement was not recorded before the Investigating Officer and he has given deposition in his cross-examination for the first time. Moreover, looking to paragraph-14 of the deposition of PW. 6, he has stated that his mother who is PW 2 came later on to the scene of offence. Thus looking to paragraph 14 of the deposition of P.W. 2 she excludes the presence of P.W.6 and looking to paragraph 13 of the deposition of P.W. 6 he says that mother i.e. P.W. 2 came later on. Thus looking to the deposition of P.W. 6, it appears that he is not a reliable witness and he is not the eye witness of the incident. 12. Looking to the statement of Fuchu Soren which is alleged to have been taken on 26th July, 1992 at about 11.45 hours, the prosecution has not examined the police officer, who has recorded the same nor any Doctor has been examined by the prosecution. Thus it cannot be treated as dying declaration of the deceased, who has expired on 28th July, 1992 because it is stated in his fardbeyen by Fuchu Soren that after receiving injuries he became unconscious. Similarly, P.W.2 has stated in paragraph 6 that Fuchu Soren was unconscious at Jamtara Hospital, nobody knows when he regain his consciousness. There is no evidence given by any doctor. Moreover, P.W. 2 has also stated in paragraph-7 of her deposition that statement of her son Fuchu Soren was recorded on the next day i.e. on 27.07.1992. Thus the statement of Fuchu Soren recorded on 27.07.1992 has not been brought on record by the prosecution at all. There is no evidence given by any doctor. Moreover, P.W. 2 has also stated in paragraph-7 of her deposition that statement of her son Fuchu Soren was recorded on the next day i.e. on 27.07.1992. Thus the statement of Fuchu Soren recorded on 27.07.1992 has not been brought on record by the prosecution at all. Thus it appears that Fuchu Soren was unconscious on the date of incident upon receiving injuries and in the same condition he was brought to the hospital and he has stated in paragraph-6 that he was also unconscious in Jamtara hospital and therefore, it appears that he must regain consciousness on the next day as per paragraph 7 of the deposition of P.W. 2, the statement of Fuchu Soren was recorded on the next day. But this statement was never brought on record. Neither Investigating Officer has been examined nor Doctor (who was present in the Jamtara Hospital when Fuchu soren was admitted in the hospital) was examined, which is fatal to the case of prosecution. In the facts of the present case this aspect of the matter has not been properly appreciated by the learned Trial Court, hence the judgment of conviction and order of sentence passed by the learned Trial Court deserves to be quashed and set aside because the Fardbeyan cannot be treated as dying declaration in this case. 13. Looking to the evidence on record it also appears that there is delay in recording the First Information Report. The date of incident is 26th July, 1992 at about 5.00 a.m. So called statement of Fuchu Soren was recorded by the police on 26th July, 1992 at 11.45 hours whereas the First Information Report was lodged on 27th July, 1992. There is no plausible explanation for this delay by the police. The First Information Report was transmitted to the Court of the Additional Chief Judicial Magistrate, Jamtara on 28th July, 1992. Evidence says that Fuchu Soren was unconscious after receiving injuries. Eye witness P.W. 2 also says that Fuchu Soren was unconscious in Jamtara hospital. In these circumstances and also looking to paragraph 7 of the deposition of P.W. 2, the fardbeyan recorded by police is not a reliable piece of evidence at all. This aspect of the matter has not been properly appreciated by the learned Trial Court. Eye witness P.W. 2 also says that Fuchu Soren was unconscious in Jamtara hospital. In these circumstances and also looking to paragraph 7 of the deposition of P.W. 2, the fardbeyan recorded by police is not a reliable piece of evidence at all. This aspect of the matter has not been properly appreciated by the learned Trial Court. Moreover non examination of investigating officer is fatal to the prosecution specially looking to paragraph 13 of P.W. 6 and also looking to paragraph-7 of the deposition of P.W. 2 there is no explanation by the prosecution that as to whether the statement of P.W. 6 under Section 161 of the Code of Criminal Procedure was ever recorded by the police or not and no explanation is given by the prosecution about the statement of Fuchu Soren recorded on next date of occurrence. 14. Moreover, the so-called eye witness Rashik Hansda who is independent witness and co-villager referred by Fuchu soren and though he was cited as witness in charge sheet, he has not been examined at all. The independent eye witness, who was present at the time of occurrence, has not been examined by the prosecution for no justifiable reason and no explanation has been given by the prosecution for his non examination. This aspect of the matter has not been properly appreciated by the learned Trial Court. Thus, prosecution has failed to prove the offence beyond reasonable doubt of causing murder of the deceased by the appellants, we therefore, quash and set aside the judgment of conviction and order of sentence dated 13th/17th September, 2002 passed by learned Sessions Judge, Jamtara in Session Case No. 278 of 1993 / 244 of 2001. 15. We are conveyed by counsel for both the sides that appellant Shivlal Murmu has expired, Jadu Murmu and Aashu Murmu are on bail by suspending the sentence, their bail bonds are hereby discharged and their sureties are also discharged from the liabilities. The appellants of both the appeals are acquitted. Appellant Sushil Murmu [in Cr.A.(D.B.) No. 699 of 2002] is in judicial custody, he shall be released forthwith from the judicial custody, if not required, in any other offence. 16. Both the appeals are allowed and are disposed of.