JUDGMENT : RAKESH KUMAR, J. 1. The present Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and sentence dated 15th April, 1993 passed by Sri Ram Nath Ram Mahto, learned 6th Additional Sessions Judge, Saran, Chapra. The sole appellant has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C.”) and sentenced to undergo rigorous imprisonment for life. 2. Short fact of the case is that on 30.10.1990 at 6.00 A.M. (morning) Sub Inspector of Police Sri R.K. Prasad recorded fardbyan of Shripati Devi /P.W. 6 in surgical ward of Chapra Sadar Hospital. In the fardbyan of informant, which was recorded by Sub Inspector of Police Bhagwan Bazar, she stated that her villager Chandra Dip Singh @ Sadhu Singh (appellant) yesterday i.e. on 29.10.1990 in the morning at 5.30 A.M. near bathan of her, had given blow by Jarautha (fattened root portion of the bamboo) on the head of her old father-in-law namely Babu Lal Singh. Due to said injury her father-in-law became unconscious. Thereafter, the injured war carried to Garkha Hospital. However, doctor of Garkha Hospital advised to go Chapra Hospital. Finally, he was admitted in Chapra Hospital and during treatment in the same night i.e. on 29.10.1990 at 11.00 P.M. he died on bed no. 27 in the surgical ward of Chapra Hospital. The informant claimed that appellant with intent to kill her father-in-law had given blow by Jarautha (fattened root portion of the bamboo) and due to said injury he died. One Rang Bahadur Singh (maternal uncle of the informant) had put signature on the fardbyan as a witness and fardbyan was under thumb impression of the informant. After recording fardbyan the same was referred to Officer–in-charge Parsa (Bheldi) and on the next date i.e. on 31.10.1990 at about 10.15 A.M. formal F.I.R. vide Parsa (Bheldi) P.S. Case No. 91 of 1990 was registered under Section 302 of I.P.C. showing the appellant as sole F.I.R. named accused. After registering F.I.R. the case was investigated and on 28.12.1990 charge-sheet was submitted under Section 302 of I.P.C. against the sole appellant. Thereafter, on 23.2.1991 cognizance of offence was taken and after completion of formalities under Section 207 of the Cr.P.C. the case was committed to the court of Sessions on 28.3.1992. After registering F.I.R. the case was investigated and on 28.12.1990 charge-sheet was submitted under Section 302 of I.P.C. against the sole appellant. Thereafter, on 23.2.1991 cognizance of offence was taken and after completion of formalities under Section 207 of the Cr.P.C. the case was committed to the court of Sessions on 28.3.1992. It is pertinent to mention here that as per prosecution case immediately after recording F.I.R. the appellant was arrested and he remained in custody for about nine years till the date of his release by order of this court vide order dated 16.7.1999. After commitment on 29.4.1992 charge under Section 302 of I.P.C. was framed against the appellant. Since he denied charges the prosecution to prove the case had examined altogether nine witnesses, out of whom P.W. 1 (Bhimal Singh), P.W. 2 (Parmatma Singh), P.W. 3 (Shila Nath Singh), P.W. 4 (Bharat Singh), P.W. 5 (Sanjoga Devi/ wife of deceased) and P.W. 6 (Shripati Devi/ informant) have claimed to be eye witness to the occurrence whereas, P.W. 7 (Ram Kumar Ram) has been examined as hear say witness. Dr. Krishna Nand, who conducted post-mortem examination on the dead body of the deceased was examined as P.W. 8 and P.W. 9 (Lapat Ram) is the investigating officer of the case. 3. It would be appropriate firstly to discuss the evidence of informant /P.W. 6 (Shripati Devi). Shripati Devi (P.W. 6) in her evidence has stated that at the time of occurrence she was tying her she goat whereas her father-in-law (deceased-Babu Lal) was putting fodder in the Nad for his ox. In the meanwhile Chandra Dip Singh @ Sadhu Singh (appellant) arrived with Jarautha (fattened root portion of the bamboo) and gave blow on the head of her father-in-law. Thereafter her father-in-law crying fell down. Subsequently, she raised alarm and thereafter Bhimal Singh (P.W. 1), Parmeshwar Singh (not-examined), Shila Nath Singh (P.W. 3), Paras Singh (not-examined), Parmatma Singh (P.W. 2) arrived. Since her father-in-law was unconscious they carried him on cot towards Chand Chowk from where he was carried to Chapra Sadar Hospital where during treatment his father–in-law died at 11.00 P.M. She stated that in the night field of appellant Chandra Dip Singh was grazed by her buffalo and due to the said reason in the morning the appellant arrived and started abusing, on which her father-in-law restricted the appellant. Thereafter, the appellant returned to his house and came along with Jarautha (fattened root portion of the bamboo) and assaulted her father-in-law. She in paragraph no. 2 of her cross-examination had denied the suggestion that P.W. 6 was not an accused in relation to a case of murder of wife of Chandra Dip Singh/ appellant. In paragraph no. 3 of cross -examination P.W. 6 has made categorical statement that the place where assault was done except the informant and her father-in-law there were none. Again on suggestion being given that the wife of the appellant had died by assault given by the P.W. 6, he denied the same. As per evidence of informant it is evident that she was categorical on the point that at the time of occurrence there were none except the informant and the deceased. However, during trial number of persons have come forward to state as if they had seen the occurrence. 4. P.W. 1 (Bhimal Singh) has claimed to be eye witness and stated that on the date of occurrence at about 5.00 in the morning he was going to attend natural call and seen that Sadhu @ Chandra Dip (appellant) and Shripati Devi /informant (P.W. 6) were quarrelling. While he was returning after attending natural call then he saw that Sadhu (appellant) had given blow from Jarautha (fattened root portion of bamboo) on the head of Babu Lal Singh from his back side and thereafter he fell down and blood started oozing from his injury. After giving one blow the appellant fled away. Thereafter, he carried Babu Lal to Garkha Hospital where he was not admitted. Then the injured was carried to Chapra Hospital where he died due to the said injury. This witness claimed that besides him the occurrence was seen by P.W. 2(Parmatma Singh), P.W. 3 (Shila Nath Singh), P.W. 4 (Bharat Singh) and others. In paragraph no. 2 of his crossexamination he admits that at the time of assault except the deceased -Babul Lal and his daughter-in-law none were present. He denied suggestion that before the occurrence prosecution side had killed the wife of the appellant. 5. In paragraph no. 2 of his crossexamination he admits that at the time of assault except the deceased -Babul Lal and his daughter-in-law none were present. He denied suggestion that before the occurrence prosecution side had killed the wife of the appellant. 5. P.W. 2 (Parmatma Singh) has also claimed that after hearing hulla he went to the bathan of Babu Lal and he also seen that Chandra Dip Singh (appellant) had given blow from Jarautha (fattened root portion of the bamboo) on Babu Lal Singh where after the injured fell down. He further stated that the injured was carried to Garkha Hospital. Thereafter, he was carried to Chapra Hospital. However, from Garkha Hospital he returned back. He also claimed that besides him the occurrence was seen by Bharat Singh (P.W. 4), Shripati Devi (P.W. 6), Bhimal Singh (P.W. 1), Ram Kumar Ram (P.W. 7), Ramesh Rai (not -examined). In his cross -examination in paragraph no. 3 he has stated that after the injury the injured had fallen at the place of occurrence and he stated that his statement was recorded by Darogaji on the date of occurrence in the evening at the place of occurrence itself. He has denied the suggestion in paragraph no. 3 that he was also made accused in the case of murder of wife of the appellant. 6. P.W. 3 (Shila Nath Singh) has also stated like P.W. 1, and P.W. 2. However, in cross examination in paragraph no. 2 he has admitted that deceased was his uncle. 7. P.W. 4 (Bharat Singh) yet has stated like P.W. 1, P.W. 2 and P.W. 3 as if in his presence appellant had given blow of Jarautha (fattened root portion of the bamboo) on the head of the deceased. In paragraph no. 3 of his cross -examination he has stated that near the bathan blood had fallen and he stated that at the time of altercation wife of appellant was also present there. However, he denied the suggestion that wife of appellant was killed. He stated that at 5.00 A.M. while he was going to attend natural call he saw that Chandra Dip Singh (appellant) had given blow by Jarautha (fattened root portion of the bamboo) from the backside on the head of Babu Lal Singh. However, in cross -examination in paragraph no. However, he denied the suggestion that wife of appellant was killed. He stated that at 5.00 A.M. while he was going to attend natural call he saw that Chandra Dip Singh (appellant) had given blow by Jarautha (fattened root portion of the bamboo) from the backside on the head of Babu Lal Singh. However, in cross -examination in paragraph no. 2 he stated that he had earlier gone for natural call near Babu Lal’s bathan where Chandra Dip (appellant) was using abusive language from his own house itself. He did not say about assault and further stated that at that very time wife of appellant was also there. 8. P.W. 5 (Sanyoga Devi-wife of deceased) in her examination–in-chief in paragraph no. 1 has stated as if in her presence the appellant had given blow by Jarautha (fattened root portion of the bamboo) on the head of her husband but in paragraph no. 2 she admitted that she was a patient of cataract and said that while she rushed to the place of occurrence her husband had already fell down and she denied the suggestion that wife of the appellant was killed. 9. P.W. 7 (Ram Kumar Ram) is hear say witness and has stated that he was informed by Bhimal Singh (P.W. 1), Parmatma Singh (P.W. 2), Bharat Singh (P.W. 4), Sanyoga Devi (P.W.5) regarding the occurrence and he stated in paragraph no. 2, while answering question by the court, that he had seen blood at the place of occurrence and also cloth of injured was soaked in the blood. 10. P.W. 8 (Dr. Krishnanand) was Civil Assistant Surgeon and on 30.10.1990 at 11.00 A.M. he had held post mortem examination on the dead body of Babu Lal Singh and found following injuries and observed as follows:- “Stitched wound of about 1” in length on the back of head. On dissection there was fracture of occipital bone with laceration of underline occipital lob of the brain with huge collection of clotted blood. Death in my opinion has been due to haemorrhage and shock resulting from aforesaid injury caused by hard and blunt substance. This injury was sufficient to cause death of the patient in its ordinary course of nature. Time elapsed since death within 12 hours.” 11. This witness stated that P.M. report was in his writing and signature and proved Post Mortem Examination Report which was marked as Ext. This injury was sufficient to cause death of the patient in its ordinary course of nature. Time elapsed since death within 12 hours.” 11. This witness stated that P.M. report was in his writing and signature and proved Post Mortem Examination Report which was marked as Ext. 1. 12. The Investigating Officer (Lapat Ram) has been examined as P.W. 9. He has stated that in the year 1990 he was Officer-in-charge of Bheldi Police Station and stated that on 31.10.1990 he had received fardbyan, injury report and inquest report and said fardbyan was sent to Parsa Police Station. Thereafter, formal F.I.R. was drawn by Assistant Sub Inspector of Police N.P. Yadav which was marked as Exhibit 2. Fardbyan and inquest report was in the writing of Sub Inspector of Police Sri R.K. Prasad Singh of Bhagwan Bazaar Police Station and same was marked as Exhibit 3 and 4 respectively. The endorsement regarding receipt of fardbyan is the signature of Assistant Sub Inspector of Police Sri Niranjan Prasad Yadav which he proved and same was marked as Exhibit 3/1 and thereafter the case was sent to Bheldi Police Station for investigation and he took up investigation of the case. He recorded re-statement of the informant, visited place of occurrence and stated about description of the place of occurrence. Though he had not seized blood stained soil from the place of occurrence, he stated in his deposition that he had seen faded blood mark at the place of occurrence. He further stated that at the place of occurrence he recorded statement of Bhimal Singh (P.W. 1), Parmatma Singh (P.W. 2), Shila Nath Singh (P.W. 3), Bharat Singh [P.W. 4 (not examined)], Shiv Kumar (not -examined), Krishna Nand Puri (not-examined), Sanjogiya Devi (P.W. 5) and after investigation he submitted charge-sheet. In cross -examination he denied suggestion as to whether he had received any information regarding murder of wife of the appellant. 13. Sri Vijay Kumar, learned counsel for the appellant after placing entire evidence has argued that it was a case of out and out false implication. He submits that prior to the alleged occurrence wife of the appellant was done to death and while he went to Police Station for giving information, he was detained by Police on allegation of murder of Babu Lal Singh. He submits that prior to the alleged occurrence wife of the appellant was done to death and while he went to Police Station for giving information, he was detained by Police on allegation of murder of Babu Lal Singh. He submits that if for the time being entire prosecution case is accepted as true, it is very difficult to infer as to what was the reason that once at about 5.00 A.M. on 29.10.1990 the informant had noticed that her father-in-law was given blow by Jarautha (fattened root portion of bamboo) on his head from back side and he was carried to hospital, what was the reason for giving no information to the Police. He submits that the alleged occurrence had taken place at 5.00 in the morning and said injured was carried firstly to Garkha Hospital and then to Chapra Hospital and he was admitted and during treatment in the night at 11.00 on the same day he died. He submits that had there been any injury caused by the appellant, it was necessary for the informant at least to inform the doctor who was there to attend the injured regarding the occurrence. He submits that it appears that the deceased had received injury in a different manner and this was the reason that neither Police was informed nor even attending doctor was informed regarding injury. He has further argued that it is consistent case of the prosecution that at the place of occurrence blood of injured had fallen but the Investigating Officer has not bothered to seize blood stained soil and produce even the seizure list before the court. According to learned counsel for the appellant the alleged occurrence had taken place at 5.00 A.M. (morning) on 29.10.1990 whereas fardbyan was got recorded on the next date i.e. on 30.10.1990 at 6.00 A.M., whereas, according to prosecution, death had occurred at 11.00 P.M. on 29.10.1990 itself. According to learned counsel for the appellant the alleged occurrence had taken place at 5.00 A.M. (morning) on 29.10.1990 whereas fardbyan was got recorded on the next date i.e. on 30.10.1990 at 6.00 A.M., whereas, according to prosecution, death had occurred at 11.00 P.M. on 29.10.1990 itself. He submits that no explanation has been given by the prosecution regarding delay in giving fardbyan and again though fardbyan was got recorded at 6.00 A.M. on 30.10.1990 formal F.I.R. was got prepared on the next date i.e. on 31.10.1990 at about 10.15 A.M. Learned counsel for the appellant has further argued that the informant in her cross-examination has made specific statement that at the time of occurrence besides her and deceased there were none to see the occurrence, but to the reasons best known to the prosecution in the present case altogether six witnesses including informant have come forward as if all those witnesses had seen the occurrence. He submits that evidence of informant (P.W. 6) belies the deposition of remaining witnesses, who have claimed to be eye witness. It has also been argued that at the time of post-mortem examination on the dead body of the deceased, P.W. 8 had noticed that injury was stitched and even size of injury was about 1” on occipital region of the head of the deceased. He submits that if the prosecution case is treated as true that the deceased was given blow by root portion of bamboo there was possibility of larger injury not injury of only about 1”. He submits that injury found during post-mortem examination also creates serious doubt on the prosecution case. 14. Sri Vijay Kumar, learned counsel for the appellant has further taken the Court to the statement of the appellant recorded under Section 313 of the Cr.P.C. and submits that this appellant at the stage of statement recorded under Section 313 of the Cr.P.C. has made categorical statement that while he visited Police Station regarding murder of his wife, he was apprehended by Police and no case regarding murder of his wife was recorded by the Police. It was alternatively argued by learned counsel for the appellant that even if entire prosecution case is treated as true, it was not a case where there was application of Section 302 of I.P.C. since there was no allegation that with intent to kill the deceased the appellant had given repeated blow. It was alternatively argued by learned counsel for the appellant that even if entire prosecution case is treated as true, it was not a case where there was application of Section 302 of I.P.C. since there was no allegation that with intent to kill the deceased the appellant had given repeated blow. It is case of the prosecution that only one blow by Jarautha (fattened root portion of the bamboo) was given by the appellant on the back of the head of the deceased and he did not die instantaneously but he died in hospital. According to learned counsel for the appellant the conviction of the appellant under Section 302 of I.P.C. is not sustainable. Instead it was required to be converted under Part -II of Section 304 of I.P.C. 15. Sri Ajay Mishra, learned A.P.P. while opposing the appeal has argued that even if for the time being the evidence of other witnesses claiming to be eye witness is ignored, the evidence of informant (P.W. 6) is itself sufficient to hold the appellant guilty and as such, the learned trial judge has rightly convicted the appellant and sentenced RI for life for offence under Section 302 of I.P.C. According to Sri Mishra the appeal is required to be dismissed. 16. Besides hearing learned counsel for the parties, we have minutely examined the entire evidence and materials available on record. At the very outset we must observe that once it was a case of prosecution that father-in-law of the informant was assaulted by the appellant in early morning i.e. at 5.00 A.M. on 29.10.1990, absence of any explanation regarding non-informing Police creates serious doubt on the prosecution case. Admittedly in the present case it was alleged that occurrence had taken place at 5.00 A.M. on 29.10.1990 whereas fardbyan was got recorded at 6.00 A.M. on the next date i.e. on 30.10.1990. However, death as alleged by the prosecution had occurred at 11.00 P.M. on 29.10.1990 that too due to injury allegedly caused by the appellant. Again after recording fardbyan in early morning of 30.10.1990 there is no explanation as to why formal F.I.R. was lodged on the next date i.e. on 31.10.1990 at about 10.15. Again there is no explanation as to why though formal F.I.R. was recorded at 10.15 A.M. on 31.10.1990 the said F.I.R. was received in the court of learned Chief Judicial Magistrate on 1st November, 1990. Again there is no explanation as to why though formal F.I.R. was recorded at 10.15 A.M. on 31.10.1990 the said F.I.R. was received in the court of learned Chief Judicial Magistrate on 1st November, 1990. Moreover, in the case no seizure list was prepared regarding seizure of blood stained soil from the place of occurrence, whereas the Investigating Officer has tried to justify his stand that though he had seen blood stained soil near bathan, he did not seize the same since the blood was faint. The explanation given by the Investigating Officer is not acceptable. Once in a case relating to murder the Investigating Officer visits the place of occurrence, it was mandatorily required on his part to seize each and every material evidence from the place of occurrence. Merely on saying that he did not seize such article may not justify the stand of the Investigating Officer. 17. On perusal of entire evidence it appears that appellant was not provided proper legal aid. It is evident that while examining P.W. 7 there was none on behalf of the appellant to cross -examine him and this was the reason that in absence of any Advocate the appellant himself had cross-examined P.W. 7. In normal course if an accused is not getting any assistance from his lawyer, it is duty on the part of the Court to ask and provide a counsel from the Legal Aid Committee but in this case it has been noticed that no such opportunity was given to the appellant. Besides this, considering entire evidence as well as the fact that nothing was found at the place of occurrence and the fact that there is no explanation regarding delay in fardbyan, formal F.I.R. and receipt of F.I.R. in the Court, create serious doubt on the prosecution case and considering the fact that there were number of reasons for inferring doubt on the prosecution case, certainly benefit of doubt can be extended to the accused. Accordingly, while extending benefit of doubt, the appeal is allowed. The judgment dated 15.4.1993 passed by Sri Ram Nath Ram Mahto, 6th Additional Sessions Judge, Chapra is set aside and consequently the appellant is discharged from liability of his bail bond.