JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) The present batch of four appeals arise out of judgment of conviction dated 10th of May, 1991 passed by the learned 3rd Additional Sessions Judge, Katihar in Sessions Trial No.229 of 1989, by which while acquitting fifteen accused persons, the learned Judge convicted the five appellants for committing offences under Sections 148 and 302/34 of the Penal Code and directed each of the appellants to suffer rigorous imprisonment for two years as also for life on the above two respective counts. Sentences were directed to run concurrently. 2. The prosecution case emanated from the fardbeyan of P.W.1 Satyanarain Yadav, who happened to be the brother of the deceased. He alleged that he was also going with the deceased to attend the call of nature early morning on 19.4.1988. It is stated that when they had reached a particular point on the pitch road, the accused persons named in the F.I.R. numbering twenty-one came and surrounded his brother Umakant Yadav and at the orders of Jai Naraian Yadav (since acquitted) assaulted the deceased with farsa. It was specifically alleged that appellant Manoj Kumar Yadav dealt garasa blow while appellant Damodar Yadav wielded a bhala blow upon the deceased while the remaining three appellants Vijay Yadav, Dularchand Yadav and Maharana Pratap Singh @ Yadav along with acquitted accused Arun Yadav, Jyotish Yadav gave farsa blows to the deceased, as a result of which Umakant Yadav breathed his last at the spot. Seeing the occurrence P.W.1 ran towards his house and villagers started raising alarm which attracted people, who came and saw the occurrence and on which the accused persons also made their defence. 3. It was stated by the informant himself that his father late Harihar Yadav had two wives. The informant and his deceased brother were the sons of the second wife whereas accused Jainarain Yadav and Sheonarain Yadav were the sons of Harihar Yadav from his first wife and that the accused persons had been conspiring to commit the murder of these brothers. 4. It appears that after recording the fardbeyan (Exhibit-1) the F.I.R. of the case was drawn up and the investigation was taken up by P.W.12 S.I. Baidyanath Ram, who held inquest upon the dead body and forwarded the same for postmortem examination. 4. It appears that after recording the fardbeyan (Exhibit-1) the F.I.R. of the case was drawn up and the investigation was taken up by P.W.12 S.I. Baidyanath Ram, who held inquest upon the dead body and forwarded the same for postmortem examination. The case was also investigated by P.W.13, who inspected the place of occurrence and recorded statements of different witnesses. After closure of investigation twenty accused persons were put on trial as pointed out at the very out set of the impugned judgment. 5. The defence of the accused persons was that no one had seen the occurrence as it was a blind murder which was committed in the cover of darkness of night and the witnesses out of their imagination as also due to suspicion had implicated the accused persons. 6. There may not be any doubt that the deceased was murdered by being brutally assaulted as P.W.2 Dr. Sharat Kumar Singh, who held postmortem examination on his dead body, had found as many as nine wounds on it, out of which a solitary wound i.e. injury no.9 was a penetrating wound and the remaining eight were incised wounds. It is better to extract the description of injuries so as to appreciating as to how brutally the deceased had been assaulted. The injuries which were found by P.W.2 were as follows:- (1) Incised wound 6”x 1 ½” x 1” on the middle of head extending to back of head, 1” from hairline in sagital plain. (2) Incised wound 6” x 2” x 1 ½” on left side of upper part of neck. (3) Incised wound 3” x 2” x 1” on lower part of left side neck. (4) Incised wound 10” x 4” x 3” on the lower part of left side of neck and left shoulder. (5) Incised wound 5” x 3” x 2” on the outer side of left elbow region extending both to arm and forearm. (6) Incised wound 1” x ½” x ¼” on the outer side of left wrist. (7) Incised wound 1” x ½” x ½” on right arm. (8) Incised wound ½” x ½” x ¼” on the middle of back of chest on spine. (9) Penetrating wound 1” x ½” penetrating the 4th right inter costal space in the mid auxilliary line. 7. (7) Incised wound 1” x ½” x ½” on right arm. (8) Incised wound ½” x ½” x ¼” on the middle of back of chest on spine. (9) Penetrating wound 1” x ½” penetrating the 4th right inter costal space in the mid auxilliary line. 7. What may, thus, be found is that majority of the wounds like injury nos.1, 2 and 4 were as dangerous as could be sufficient individually to cause death in addition to injury no.9 which was a solitary penetrating wound, sufficient to cause death of the deceased as the penetrating wound had pierced between the 4th right inter costal space over the mid axilliary line as it may appear from the further evidence of P.W.2 and had contused and punctured the pleura. It appears further that the heart was also damaged on account of injury no.9. However, merely because the doctor was giving an opinion and also because the injuries could be indicating that the man was murdered, no person could be convicted on that account alone. The Court has to scrutinize the judgment of conviction in the light of the evidence which was adduced by the prosecution and the probability of the allegations that it were the accused persons who had committed the murder of Umakant Yadav. While to examining the evidence what confronted us was that there were many serious pitfalls in the evidence of the prosecution and it could be a case where the present set of appellants were also entitled to acquittal. In order to buttress this finding of ours we want firstly, to point out that P.W.1, the informant of the case, who claimed accompanying or following the deceased so as to going to attend the call of nature, may not be an eye witness to the occurrence. The other probability which emerges from his evidence is that he had indeed not seen the occurrence and had neither been present at the scene of occurrence as well. We cannot go to any other evidence than his own for raising the above inference. In his elaborate evidence P.W.1 had given the blow by blow description of the manner of occurrence by alleging as to which of the accused had given blow by which weapon and had struck what part of the body of the deceased. We cannot go to any other evidence than his own for raising the above inference. In his elaborate evidence P.W.1 had given the blow by blow description of the manner of occurrence by alleging as to which of the accused had given blow by which weapon and had struck what part of the body of the deceased. If one could consider the evidence of P.W.1 in examination-in-chief then one could really be alarmed that it was a version coming from the most trustworthy witness but when one had considered the evidence of P.W.1 in paragraph 13 at page 12 of the paper book one could simply be forced to change his inference and note down that P.W.1 could never be an eye witness to the occurrence. P.W.1 stated in paragraph 13 that when the accused persons had run away, he reached near his brother and found that he was dead. Also, that his clothes were soaked in blood and that blood had spilled over the road quite copiously and further that it remained there on the road for many more days. P.W.1 further stated in the same paragraph that in spite of having seen the occurrence and having identified, the accused persons, he did not tell the names of those accused to any of the witnesses or persons who had arrived at the scene of occurrence and he rushed by a bicycle to Pothia outpost. But did not find any Police Officer except one R.P. Ram, an officer in the rank of Assistant Sub-Inspector of Police, who told him that he was under suspension and as such he could not help him. P.W.1 further stated in paragraph 24 at page 16 of his deposition appearing in the paper book that he went to Pothia outpost but did not lodge any report in spite of having stayed there for 10-15 minutes. He thereafter left Pothia outpost to go to Falka Police Station and again remained there for half an hour, but neither did he give his own report nor did he request the Police Officer present there to record his statement. This indicates that P.W.1 had not really seen the occurrence and had identified the assailants of his brother as there was no reason for him not to give his statement either at Pothia outpost or Falka Police Station. This indicates that P.W.1 had not really seen the occurrence and had identified the assailants of his brother as there was no reason for him not to give his statement either at Pothia outpost or Falka Police Station. We are very firm in our view that P.W.1 was not an eye witness to the occurrence and his evidence in paragraph 13 that he reached and found his brother lying dead whose clothes were soaked in blood is the only truth that he had arrived only after the murder had been committed and the culprits had disappeared from the scene of occurrence. 8. The learned trial judge has held that the F.I.R. was not an antedated document. We, after examining the evidence of witnesses as also a couple of station diary entries which were brought on record both by the prosecution and the defence, have to hold that the observations and findings of the learned trial judge could not be digested by us without a pinch of salt. It is admitted by P.W.1 that he had gone to Pothia outpost and it was also stated by him that there was no Police Officer present there. Station diary entry No.311 dated 18.4.1988, recorded by the Havildar posted at that outpost indicates that a rumour was received at the outpost about the murder of Umakant Yadav and the Havildar, namely, Birendra Kumar Pandey with Contable No.215 Dinanath Jha started from Pothia outpost to the place of occurrence. It has been clearly stated in the said station diary entry as Exhibit A that because there was no Officer available at the outpost he sent information about the occurrence to Falka Police Station and handed over the charge of the station diary entry to Constable 347 Islam Khan. Station diary entry No.313 is not the less relevant a document. It indicates that by the time Havildar Birendra Kumar Pandey of Pothia outpost had arrived at the place of occurrence, an Officer of Falka Police Station had already arrived there. The first station diary entry no.311 was recorded at 5.45 A.M. while the second station diary entry no.313 was recorded at 7.45 A.M. We find from the F.I.R. (Exhibit 6) and the fardbeyan (Exhibit 1) that the fardbeyan was recorded at 9.30 A.M. on 19.4.1988. The first station diary entry no.311 was recorded at 5.45 A.M. while the second station diary entry no.313 was recorded at 7.45 A.M. We find from the F.I.R. (Exhibit 6) and the fardbeyan (Exhibit 1) that the fardbeyan was recorded at 9.30 A.M. on 19.4.1988. If the Officer of Falka Police Station, i.e., S.I. B.N. Ram had already arrived at the place of occurrence much prior to 7.45 A.M. and if the informant was there ready to give his statement to any Police Office then how the fardbeyan was recorded at 9:30 A.M., i.e., after about two hours of the arrival of the Officer, remains a mystery for us. Not only that, the formal F.I.R., i.e., Exhibit 6 was drawn at 2:00 P.M. and the copy of the F.I.R. was dispatched to the Chief Judicial Magistrate, Katihar by special messenger. It appears very curious as to how the special messenger who was dispatched with the copy of the special report would reach the nearest Magistrate after two days of the drawal of the special report. 9. We have already referred to the evidence of P.W.1, the informant of the case, that in spite of having reached Pothia outpost just after the occurrence and also having arrived and approached the Falka Police Station and having remained there for about half an hour and again, as may appear from the evidence of the informant himself having accompanied a Police Officer, i.e., Baidya Nath Ram up to the place of occurrence, why he was feeling shy is giving his statement before the police by detailing the occurrence and naming the real assailants. 10. We have a very curious reasoning coming from the police itself which emerges from yet another station diary entry recorded by S.I. Baidya Nath Ram of Falka Police Station. As per station diary entry no.391 dated 19.4.1988 this entry was made by S.I. Baidya Nath Ram at 8:05 A.M. and what appears from the contents of this station diary entry is that P.W.1 in spite of having approached the police and met the competent officers had not given his statement before Pothia outpost as he was suspicious of mala fide actions on the part of the police at the behest of the Mukhiya of Pothia panchayat. This remains a serious question and a matter of serious doubt as to whether S.I. Baidya Nath Ram would be available at Falka Police Station at 8:05 A.M. if he had already arrived at the place of occurrence much before 7:45 A.M. on the same day, as appears from station diary entry no.313 dated 19.4.1988 recorded by Havildar Birendra Kumar Pandey of Pothia outpost. In our opinion, there is every chance that station diary entry no.391 dated 19.4.1988 of Falka Police Station was created subsequently to create an alibi as to why P.W.1 had not given his statement before the police and also to satisfy the judicial conscience that there were satisfactory reasons to accept that the F.I.R. was not ante timed. In our opinion, not only the F.I.R. was ante timed but certain documents like station diary entry no.391 dated 19.4.1988 (Exhibit-7) of the prosecution was also fabricated in order to supporting the prosecution explanation as regards belated lodging of the F.I.R. We are of the opinion that the fardbeyan and the F.I.R. were fabricated records which were brought in existence after due deliberations and consultations with the Police Officer S.I. Baidya Nath Ram who had seriously indulged into the fabrication of these records. Thus, what we find is that the finding of the learned trial judge that the F.I.R. was not ante dated or ante timed is impossible to be supported by us and we have already pointed out that P.W.2 is the doctor who had held postmortem examination on the dead body. 11. P.W.3 Md. Yasin Ansari was a witness of formal character and P.W.4 Kusumi Devi was the mother of the deceased. She was giving very curious reasons for being present at the scene of occurrence. P.W.4 stated that as soon as her son, deceased Umakant Yadav, had emitted from his house to go outside to attend to the call of nature, she also picked up a Lota to follow him for the same. We doubt that the reason given by P.W.4 is acceptable. During cross examination in paragraph 8 P.W.4 was put certain questions regarding the provisions of any such place where the lady inmates of the house would comfortably ease and urinate. It appears admitted by P.W.4 that there was some provision created in the house hold so as to facilitate the ladies to attend to the calls of nature. During cross examination in paragraph 8 P.W.4 was put certain questions regarding the provisions of any such place where the lady inmates of the house would comfortably ease and urinate. It appears admitted by P.W.4 that there was some provision created in the house hold so as to facilitate the ladies to attend to the calls of nature. If that was so then it is very difficult for us to accept that P.W.4 will not avail of that particular provision on that particular date and shall venture out following her son. In our opinion, it was a clever improvement made by the prosecution so as to making P.W.4 a competent witness. This becomes more clear if one had perused the cross examination evidence of P.W.4 in paragraph 9 where it was seriously challenged by suggesting to her that she had not stated to the police that she had gone out to attend the call of nature. Thus, the evidence of P.W.4, to us, appears completely unacceptable. 12. P.W.5 Leela Devi is the wife of deceased Umakant Yadav and on her own evidence she was not an eye witness to the occurrence. P.W.6 Gokhul Kumar Yadav had though given evidence as an eye witness but again what we find is that at the time of occurrence he was aged about 7 years and it appears to us very difficult to accept that a child of seven years would retain the facts of the case in his memory so as to narrating after seven years of the incidence. Child’s memory is too fragile to retain such incidence. It might be possible to retain the hazy sketches of the incidence but a child, after seven years of the incidence, in our opinion, could not be producing the details of the occurrence as was stated by P.W.6. P.W.7 is the father of the deceased and he was also not an eye witness to the occurrence. He had also heard from P.W.6 and we have already pointed out that P.W.6 was a child of seven years and that he would be naming the accused at that minor age is not acceptable. P.W.9 and P.W.11 were formal witnesses whereas P.W.10 had been tendered for cross examination. We have already noted that P.Ws.12 and 13 were the Investigating Officers of the case. 13. P.W.9 and P.W.11 were formal witnesses whereas P.W.10 had been tendered for cross examination. We have already noted that P.Ws.12 and 13 were the Investigating Officers of the case. 13. Thus, what we find is that the conviction of the appellants was virtually based on the solitary evidence of P.W.1. We have already pointed out at the very threshold that the evidence of P.W.1 does not appear wholly reliable or even partially reliable. We have already noted that P.W.1 was not present on the scene of occurrence and further he had not identified any of the assailants of his brother because of not being present there at the scene of occurrence. 14. In the result what we find is that conviction of the five appellants for offences under Sections 148 and 302/34 I.P.C. was unwarranted as the same could not be sustained. In the result, the four appeals succeed and they are allowed. The appellants of the four appeals are acquitted of the charges, they had been found guilty and sentenced by the learned trial judge. The appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. Appeal allowed.