JUDGMENT : Heard, learned Amicus Curiae, Mrs. Priya Shrestha and Mr. Vinay Kumar Tiwary, learned Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction, dated 19.02.2004 and order of sentence, dated 21.02.2004, passed by learned 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 236 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 304 of the Indian Penal Code and awarded rigorous imprisonment for five years. 3. The prosecution case is based upon fardbeyan of Gorachand Singh (P.W.-1), recorded by S.K. Ojha, A.S.I., Patamda Police Station, on 30.05.2003 at 08:15 hours at M.G.M. Hospital, alleging therein, that on last Thursday (22.05.2003), a quarrel took place between co-villager Adhik Singh, s/o Late Bhusan Singh and elder brother of the informant, Dulal Singh on the issue of tying cattle on the veramda. It is alleged that Adhik Singh pushed Dulal Singh, due to which Dulal Singh fell down on the ground and thereafter he was assaulted by sawal on thumb of his right hand, causing injury. It is stated that treatment was given in the village but on 30.05.2003, condition of Dulal Singh has deteriorated and admitted in M.G.M. Hospital where treatment is going on. The informant has further alleged that Adhik Singh has caused serious injury upon his brother due to which his condition has deteriorated. 4. On the basis of fardbayen police has instituted Patamda P.S. Case No.29 of 2003, dated 30.05.2003, under Section 326 of the Indian Penal Code, against Adhik singh as accused and subsequently section 304 of the Indian Penal Code has been added vide order dated 02.06.2003, on the requisition of the investigating officer as elder brother of the informant, Dulal singh succumbed to the injuries on 31.05.2003. 5. After investigation, the police has submitted charge sheet vide charge sheet no.39 of 2003, dated 30.06.2003, under Section 304 of the Indian Penal Code against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 05.07.2003 and the case has been committed to the court of sessions vide order dated 24.07.2003. 7. The charge has been framed against the sole accused under Section 304 of the Indian Penal Code, on 01.09.2003, to which the sole accused person has pleaded his innocence and thus, he was put under trial. 8. 7. The charge has been framed against the sole accused under Section 304 of the Indian Penal Code, on 01.09.2003, to which the sole accused person has pleaded his innocence and thus, he was put under trial. 8. The prosecution, to prove its case, has examined altogether ten witnesses and adduced documentary evidence as exhibits. Gorachand Singh, informant, has been examined as P.W.-1, Smt. Binda Bala Singh, has been examined as P.W.-2, Babulal Singh, has been examined as P.W.-3, Sufal Singh, has been examined as P.W.-4, Smt. Basanti Bala, has been examined as P.W.-5, Syam Singh, has been examined as P.W.-6, Surendra Singh, has been examined as P.W.-7, Narain Singh, has been examined as P.W.-8, Dr. Lallan Chowdhary, Medical Officer, has been examined as P.W.-9 and Santosh Kumar Ojha, investigating officer, has been examined as P.W.-10. Postmortem report, has been proved and marked as exhibit-1 and fardbayen of the informant, has been proved and marked as exhibit-2. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under section 313 Cr.P.C., on 20.01.2004, to which the appellant has denied the allegation levelled against him and stated that he is innocent and has been falsely implicated in this case. No defence witness has been examined nor documentary evidence has been adduced on behalf of the defence. 10. After hearing the learned counsel for the parties and after perusal of the material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence. 11. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal, assailing the impugned judgment of conviction and order of sentence, which is being heard by this Hon’ble Court. 12. Heard, learned Amicus Curiae, Mrs. Priya Shreshtha. Learned Amicus Curiae has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial court without scrutinizing the evidence. Learned Amicus Curiae has further submitted, that there is inordinate delay in lodging the first information report. As per the first information report, the occurrence took place on 22.05.2003, whereas the first information report was lodged on 30.05.2003 at 08:15 hours on the basis of the fardbeyan of Gorachand Singh, P.W.-1, informant, recorded at M.G.M., Hospital. Learned Amicus Curiae has further submitted, that there is inordinate delay in lodging the first information report. As per the first information report, the occurrence took place on 22.05.2003, whereas the first information report was lodged on 30.05.2003 at 08:15 hours on the basis of the fardbeyan of Gorachand Singh, P.W.-1, informant, recorded at M.G.M., Hospital. Learned Amicus Curiae has further submitted, that the evidence adduced by the prosecution witnesses are not only contradictory to each other but there is improvement in the prosecution case also. Learned Amicus Curiae has further submitted, that from perusal of exhibit-1 proved by Dr. Lallan Choudhary, P.W.-9, it appears that cause of death has been assigned as head injury and shock but from perusal of the evidence brought on record including the evidence of the doctor, only one lacerated wound with pus over palmer aspect of right thumb has been found on the person of the deceased, but doctor has assigned the reason of death to be head injury and shock. The doctor has categorically stated, during cross-examination that he has not mention about collection of blood in the cavity of skull and has further stated that in case of brain injury, irritation begins with the bleeding. Learned Amicus Curiae has further submitted that the prosecution witness namely, Gorachand Singh (P.W.-1), informant of the case, has tried to develop prosecution case. As per the evidence of P.W.-1, deceased died because of tetanus and the information was given to the police station by chowkidar and police has brought his brother to the hospital. Learned Amicus Curiae has drawn attention of this Court towards para 4 of the cross-examination of the informant. The informant has categorically stated that his house is surrounded by the boundary wall from all the four sides and he was inside the house and as such informant cannot see the occurrence committed outside the house. Learned Amicus Curiae has further submitted, that Dulal Singh has sustained injury in his hand. He was given medicine at hospital, which was administer to him and thereafter he went to the Patamda police station on the same day, where he has disclosed about the occurrence and thereafter the paper was prepared and medical requisition was given for treatment but no injection was given upon the victim, Dulal Singh. He was given medicine at hospital, which was administer to him and thereafter he went to the Patamda police station on the same day, where he has disclosed about the occurrence and thereafter the paper was prepared and medical requisition was given for treatment but no injection was given upon the victim, Dulal Singh. Subsequently when his condition has deteriorated on 8th day of the occurrence, the victim was taken to the police station by Babul Lal Singh, Basanti, Bindu Bala and Syam Lal in the morning and the statement was recorded in which all the five persons have put their thumb impressions. Learned Amicus Curiae has submitted, that no such first information report on the statement of victim, Dulal Singh was brought on record as stated by the informant in paragraph 7 of his cross-examination, as such the present first information report, which has been lodged at M.G.M., Hospital on the basis of fardbeyan of informant, Gorachand Singh is hit under Section 162 Cr.P.C. Learned Amicus Curiae has further submitted, that P.W.-2, Smt. Bindu Bala Singh is wife of the informant. She has also given a contradictory version from the first information report as well as deposition of the Gorachand Singh, P.W.-1, by exaggerating and improving the prosecution case to the extend that Dulal Singh was assaulted and pushed by Adhik Singh due to which Dulal Singh has also sustained injury because of collision with brick. Learned Amicus Curiae has further submitted, that the statement of P.W.-1 and P.W.-2 are contradictory to each other and also from the first information report. Babu Lal Singh, has been examined as P.W.-3. This witness has stated that because of the injury sustained on the head of Dulal Singh there was bleeding, although this fact has not been stated either by the P.W.-1 in his fardbeyan or in his deposition, as such this witness has also exaggerated the prosecution case by stating during cross-examination that 200 to 250 grams of blood has fallen from the head of the victim. This witness has further stated that they have disclosed to the police about bleeding injury on the head. This witness is own nephew of the deceased, Dulal Singh. Learned Amicus Curiae has drawn attention of this Court towards evidence of P.W.-10, the investigating officer, who has categorically denied about such information given to the police by P.W.-3 or any of the witnesses. This witness is own nephew of the deceased, Dulal Singh. Learned Amicus Curiae has drawn attention of this Court towards evidence of P.W.-10, the investigating officer, who has categorically denied about such information given to the police by P.W.-3 or any of the witnesses. From perusal of the first information report, it appears that no allegation or averment has been made with respect to assault on the head or bleeding injury caused upon the head of the victim. Sufal Singh, has been examined as P.W.-4 who is a hearsay witness. Smt. Basanti Bala, has been examined as P.W.-5. Learned Amicus Curiae has drawn attention to this Court towards the examination-in-chief of this witness, as she has claimed that she was present at her own varanda. Dulal Singh was assaulted and thrashed on the ground by Adhik Singh and thereafter he was assaulted by means of sawal on the entire body including thumb. During cross-examination at paragraph 4, this witness has contradicted her own evidence by saying that she was standing in the varanda of Dulal Singh. She has further stated that she has seen the injury on the back of the head from which blood was oozing. Learned Amicus Curiae has further submitted, that the evidence of P.W.-5 is not trustworthy to be accepted by the Hon’ble Court as she has given a contradictory version about her presence in the examination-in-chief and in the cross-examination. Syam Singh, has been examined as P.W.-6. This witness has stated that he is nephew of the deceased as well as informant and the informant’s marriage was solemnized at Mohanpur and the brother-in-law of the informant Dhananjay Singh is working at M.G.M., Hospital, Sakchi. This witness has stated that the place of occurrence, which is a varamda having dimension of 22 hands in length and 1 and ½ hands in width. This witness has further stated that own sister of Dulal Singh is residing at Sili Pahar. Dulal Singh has neither wife nor any children. Learned Amicus Curiae has further submitted, that from perusal of para 4 of the cross-examination of this witness, it is apparent that Dulal Singh was admitted at M.G.M., Hospital, where brother-in-law of informant was working, as such postmortem report brought on record is contradictory to the prosecution case. The evidence of P.W.-6 is not reliable as he is own nephew of the informant and the deceased. The evidence of P.W.-6 is not reliable as he is own nephew of the informant and the deceased. Surendra Singh, has been examined as P.W.-7 and Narain Singh, has been examined as P.W.-8, both are hearsay witnesses, but they have admitted during cross-examination that on the second day they have met Dulal Singh, who has disclosed about the occurrence and has shown the injury on the right thumb but no injury was found on the head or other part of the body. These two witnesses have further stated in para 4, during their cross-examination that Dulal Singh went to house of his sister on 2nd day of occurrence and in the night he was brought in unconscious condition. Narain Singh, P.W.-8, has further stated in paragraph 4 of his cross-examination that Dulal Singh used to take liquor regularly and he was brought from house of his sister on a cot in unconscious condition. Learned Amicus Curiae has further submitted, that P.W.-7, Surendra Singh and P.W.-8, Narain Singh have not been declared hostile by the prosecution and they have adduced their evidence on the basis of disclosure made by Dulal Singh, who has only shown the injury in his right thumb but from the evidence of P.W.-7 and P.W.-8, it is apparent that Dulal Singh was brought on cot from the house of his sister in unconscious condition having taken liquor. Dr. Lallan Choudhary, Medical Officer, has been examined as P.W.-9, is the person who has conducted the postmortem of the deceased and found one lacerated wound with pus over palmer aspect of right thumb. Doctor has disclosed the cause of death is due to head injury and shock although during cross-examination this doctor has categorically admitted that he has not mentioned about collection of blood in the cavity of the skull. Learned Amicus Curiae has further submitted, that the initial injury report with respect to treatment of Dulal Singh at M.G.M., Hospital has not been brought on record and exhibit-1- postmortem report which has been proved by the Dr. Lallan Choudhary, P.W.-9, only shows one lacerated wound with pus over palmer aspect of right thumb, as such on the basis of the statement of the doctor, the appellant cannot be convicted for the offence committed under Section 304 of the Indian Penal Code. Lallan Choudhary, P.W.-9, only shows one lacerated wound with pus over palmer aspect of right thumb, as such on the basis of the statement of the doctor, the appellant cannot be convicted for the offence committed under Section 304 of the Indian Penal Code. Santosh Kumar Ojha, investigating officer of the case, has been examined as P.W.-10, this witness has stated in paragraph 4 of his cross-examination that on date of occurrence i.e. 22.05.2003, Dulal Singh has not come to the police station nor any police requisition for medical examination was issued to him. On 30.05.2003, medical requisition has been issued to Dulal Singh with respect to injury on the thumb of the right hand. This witness has further stated in paragraph 6 of the cross-examination that Gorachand Singh has never disclosed about any injury on the head of Dulal Singh in his fardbeyan. This witness has admitted in paragraph 7 of his cross-examination that witness Babu Lal Singh, P.W.-3 has also not disclosed about the injury on head of Dulal Singh in his statement nor witness Shyam Singh has disclosed the same. This witness has admitted that he is not investigated the case by recording the statement of the family members of Dulal Singh. This witness has admitted in paragraph 10 of his cross-examination that he has not found any thing at the place of occurrence in which the cattle can be tied nor he has seized any iron sawal from the house of Adhik Singh. Learned Amicus Curiae has further submitted, that Adhik Singh was arrested from his house as he was not knowing this fact that he has been falsely implicated in the death of Dulal Singh by alleging that he has assaulted Dulal Singh and due to which he has died after nine days of the occurrence. Learned Amicus Curiae has further submitted, that the prosecution case has been exaggerated by the prosecution witnesses which are contradictory to each other. Learned Amicus Curiae has further submitted, that the prosecution case has been exaggerated by the prosecution witnesses which are contradictory to each other. Learned Amicus Curiae has further submitted, that the delay in lodging the first information report of nine days coupled with the fact that P.W.-1 has admitted that earlier statement of Dulal Singh was recorded at police station, which has not been brought on record, as such the present first information report, based on fardbeyan of Gorachand Singh (P.W. 1), is hit under Section 162 Cr.P.C. Learned Amicus Curiae has further submitted, that the charge is not specific, which will be apparent from perusal of the charge framed against the appellant. Learned Amicus Curiae has further submitted, that the informant is not eye witness to the occurrence, though the first information report has been lodged after nine days of the occurrence but that does not mention about any head injury upon Dulal Singh. Learned Amicus Curiae has further submitted, that cause of death is different from the first information report. As per the informant the deceased died because the tetanus but as per the doctor, deceased died because of the head injury and shock, although no material was brought on record to allege that the head injury has been caused by the appellant. The initial injury report of M.G.M., Hospital has not been brought on record. 13. Under such circumstances the appellant cannot be convicted for the offence committed and punishable under Section 304 of the Indian Penal Code, as such the appellant may be acquitted of the charge and conviction under Section 304 of the Indian Penal Code. 14. Heard, Mr. Vinay Kumar Tiwary, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has vehemently argued the case and supported the impugned judgment of conviction and order of sentence and stated that same as based on material available on record and learned trial court has rightly passed the judgment of conviction against the appellant under Section 304 of the Indian Penal Code. Learned counsel for the State has further submitted, that Dulal Singh has sustained injury because of push and assault by means of iron rod by Adhik Singh, appellant. Learned counsel for the State has further submitted, that Dulal Singh has sustained injury because of push and assault by means of iron rod by Adhik Singh, appellant. The doctor has found contusion on the head, as such the appellant has been rightly convicted by the learned trial court on the basis of the material available on record, on the basis of head injury of the deceased. Learned counsel for the State has drawn attention to this Court towards the evidence of P.W.-6, Syam Singh, who is nephew of the informant and the deceased. Learned counsel for the State has submitted, that the evidence of Syam Singh, P.W.-6 is sufficient for convicting the appellant. Learned counsel for the State has drawn attention of this Court towards paragraph 1 of the examination-in-chief of the P.W.-6, Syam Singh, wherein he has alleged that Dulal Singh was assaulted by Adhik Singh by means of sawal and Dulal Singh sustained head injury because of push made by the appellant, Adhik Singh. The learned counsel for the State has drawn attention of this Court towards evidence of P.W.-7, Surendra Singh, who has stated at paragraph 3 of his cross-examination that Dulal singh has sustained injury on right thumb. Learned counsel for the State has thus submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of material available on record and the same does not warrant any interference by this Hon’ble Court. 15. Heard, learned Amicus Curiae, Mrs. Priya Shrestha and Mr. Vinay Kumar Tiwary, learned Additional Public Prosecutor appearing for the State and perused the record i.e. first informant report, framing of charge, the evidence of ten prosecution witnesses and two prosecution exhibits, the statement of the appellant recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. From perusal of the evidence brought on record this Court is of the opinion that first information report has been lodged after delay of eight days. There are vital contradictions in the first information report and the evidence adduced by the prosecution witnesses. In the first information report, there is no whisper of the head injury. From perusal of the evidence brought on record this Court is of the opinion that first information report has been lodged after delay of eight days. There are vital contradictions in the first information report and the evidence adduced by the prosecution witnesses. In the first information report, there is no whisper of the head injury. The doctor who has given finding regarding the cause of death as head injury and shock, has not corroborated this fact from his evidence, rather in the cross-examination he has admitted that he has not mentioned about any collection of blood in the cavity of the skull, rather the doctor has found only one external injury, which is lacerated wound with pus over palmer aspect of right thumb. This Court has examined the evidence of P.W.-7, Surendra Singh, who has stated at paragraph 3 of his cross-examination that he has not seen any injury on the head or other part of the body except on right thumb. P.W.-7, Surendra Singh has further stated at paragraph 4 of his cross-examination that deceased, Dulal Singh has been brought from house of his sister in unconscious condition. This Court has further examined evidence of P.W.-8, Narain Singh, who has also not supported the prosecution case. Though P.W.-7, Surendra Singh and P.W.-8, Narain Singh have not supported the prosecution case but have not been declared hostile by the prosecution. This Court has also examined the evidence of P.W.-6 at paragraph 7, where this witness has admitted that on brawl, he alongwith Gorachand Singh, Babulal Singh, Smt. Basanti Bala and Smt. Bindu Bala Singh and others reached the place of occurrence, as such this Court is of the view that P.W.-6, Syam Singh is not an eye witness to the occurrence rather he reached the place of occurrence after the brawl was raised by the victim alongwith the informant and other prosecution witnesses, who are admittedly hearsay witnesses. 16. Under the aforesaid background, coupled with the fact that the initial injury report has not been brought on record and the statement recorded at the police station on 30.05.2003 in the morning, when the injured was sent for medical examination has not been brought on record, as such the same is hit under Section 162 Cr.P.C., thus prosecution has miserably failed to prove the charge against the appellant. 17. 17. In the result, the impugned judgment of conviction dated 19.02.2004 and order of sentence, dated 21.02.2004, passed by learned 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 236 of 2003, arising out of P.S. Case No.29 of 2003, corresponding to G.R. No.901 of 2003, is hereby set aside and the appellant, Adhik Singh is acquitted of the charge and conviction under Section 304 of the Indian Penal Code by giving benefit of doubt. 18. The appellant, who is on bail, is discharged from liability of his bail bonds. 19. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 20. Before parting with the judgment, this Court appreciates the assistance rendered by learned Amicus Curiae, Mrs. Priya Shreshtha in disposal of the criminal appeal. The Secretary, Jharkhand Legal Services Authority is directed to release the legal admissible remuneration to Mrs. Priya Shreshtha, within four weeks from the date of production of certified copy of this order. Appeal allowed.