JUDGMENT : CHAKRADHARI SHARAN SINGH, J. 1. Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State in Criminal Appeal (DB) No. 1308 of 2018 and Criminal Appeal (DB) No. 1368 of 2018. 2. By the impugned judgment and order dated 26.09.2018 passed by learned Additional Sessions Judge-V, West Champaran, in Sessions Trial No. 561 of 2010, arising out of Chanpatia P.S. Case No. 151 of 2010, the appellants have been convicted and sentenced as under: CRIMINAL APPEAL (DB) No. 1308 of 2018 Appellant Name Conviction under Section Sentence Imprisonment Fine In default of fine Rajjak Miyan 324/34 of the IPC R.I. for two year -- -- 302 of the IPC R.I. for life 20,000/- -- 147 of the IPC R.I. for one year -- -- CRIMINAL APPEAL (DB) No. 1368 of 2018 Alamgir Miyan 324/34 of the IPC R.I. for two year -- -- 147 of the IPC R.I. for one year -- -- Serazul Miyan 323/34 of the IPC R.I. for one year -- -- 147 of the IPC R.I. for one year -- -- Ayub Ansari 323/34 of the IPC R.I. for one year -- -- 147 of the IPC R.I. for one year -- -- Id Mohammad Miyan 323/34 of the IPC R.I. for one year -- -- 147 of the IPC R.I. for one year -- -- 3. For an occurrence said to have taken place on 13.06.2010, according to the prosecution’s case based on a fardbeyan of the deceased Salim Mian recorded at M.J.K. Hospital, Bettiah by an Assistant Sub Inspector of Police, Sajjan Kumar Singh (not examined) on 15.06.2010. Chanpatiya P.S. Case No. 151 of 2010 came to be registered on 21.06.2010. The age of the deceased as mentioned in the FIR was approximately 70 years as on the date of occurrence. The appellant, Rajjak Miyan of Criminal Appeal (DB) No. 1308 of 2018 is the son of the deceased. It is the prosecution’s case as disclosed in the fardbeyan that Rajjak Miyan, Alamgir Miyan, Serazul Miyan, Ayub Anasari and Id Mohammad Miyan, armed with lathi and iron rods, came to the house of the informant (the deceased) and started abusing him which was protested by the deceased. The appellant, Rajjak Miyan, is said to have assaulted him with iron rod on his ribs. Serazul Miyan assaulted him with lathi on his ribs. The appellant, Rajjak Miyan, is said to have assaulted him with iron rod on his ribs. Serazul Miyan assaulted him with lathi on his ribs. Ayub Miyan assaulted him with lathi on his back. Id Mohammad assaulted him with lathi. When Mohammad Ali (PW-1) and Mohammad Hussain Miyan (PW-6) came to his rescue, the appellant Alamgir assaulted Mohammad Ali (PW-1) with lathi. He assaulted PW-6 also with an iron rod. The appellant Rajjak Miyan also assaulted them with iron rod. When the deceased shouted for help, Mohammad Nurudin Miyan (PW-2), Sadiq Miyan (not examined), Khalil Miyan (not examined) rushed to him and saved him. The appellant Rajjak is said to have snatched cash of Rs. 2500/-which the deceased was carrying in his pocket. The reason behind the occurrence was disclosed in the fardbeyan to be some quarrel which has taken place in past between PW-1, Ali Miyan and the appellant Serazul Miyan, in which the deceased had interceded to resolve, during the course of which the informant was also assaulted. The FIR was registered levelling offences punishable under Sections 147, 341, 323, 307, 379, 506 and 324 of the Indian Penal Code. The deceased died subsequently on 23.06.2010 and accordingly Section 302 of the IPC, was added under the orders of the learned Chief Judicial Magistrate dated 01.07.2010. The police, upon completion of investigation, submitted charge-sheet whereupon cognizance of the offence under Sections 147, 341, 323, 324, 307, 302, 504 of the Indian Penal Code was taken on 30.11.2010 by the learned Magistrate. The case was committed to the Court of Sessions for trial on 14.12.2010. The charges were thereafter framed on 04.01.2011 for the offences punishable under Sections 147, 323/149, 324/149, 341/149, 307/149 and 302/149 of the Indian Penal Code. As the appellants denied the charges framed against them, they were put to trial. 4. At the trial the prosecution examined altogether ten witnesses including the Doctor who had conducted the postmortem examination as PW-10 and the Investigating Officer as PW-9. 5. PW-1, Ali Miyan is full brother of the deceased . PWs. 3, 6 and 8 are sons of the deceased and thus full brothers of the appellant Rajjak Miyan. PW-4 is the wife of the PW-6 where as PW-5 is the wife of PW-3. PW-2 did not support the prosecution’s case and has accordingly been declared hostile at the instance of the prosecution. PWs. 3, 6 and 8 are sons of the deceased and thus full brothers of the appellant Rajjak Miyan. PW-4 is the wife of the PW-6 where as PW-5 is the wife of PW-3. PW-2 did not support the prosecution’s case and has accordingly been declared hostile at the instance of the prosecution. The post-mortem report came to be marked as exhibit-1 and the signature of PW-1 on the FIR came to be marked as exhibit-2. It is noteworthy that the fardbeyan of the informant/deceased and the formal FIR have not been proved at the trial. After closure of the evidence of the prosecution’s witnesses, statements of the persons put to trial were recorded under Section 313 of the Code of Criminal Procedure. The defense did not lead any oral or documentary evidence. 6. The trial court upon examination of the evidence adduced at the trial has concluded that the prosecution was successful in establishing its case that a head injury on the deceased was caused by the appellant Rajjak, the son of the deceased which came to be corroborated by the post-mortem report. However, the trial court noticed the fact that the prosecution failed to bring on record injury reports of any of the three persons said to have sustained injuries as therefore there was no documentary evidence to prove the same. The trial court has convicted and sentenced the appellant by its impugned judgment and order as has been noted at the outset. 7. Learned counsel appearing on behalf of the appellant has submitted that the entire case of prosecution stands demolished as it did not prove the fardbeyan of the informant and the formal FIR which are the foundation of the prosecution’s case. He has submitted that absence of any injury report in respect of the persons who according to the prosecution’s case had sustained injuries during the course of occurrence falsifies the case of the prosecution. Thirdly, appellants have been falsely implicated for ulterior reasons as would emerge from the evidence of the prosecution’s witnesses. He has submitted that it will emerge from the evidence of the prosecution’s witnesses that the deceased was not conscious on the date when his fardbeyan was recorded as is evident from the evidence of PW-8. Thirdly, appellants have been falsely implicated for ulterior reasons as would emerge from the evidence of the prosecution’s witnesses. He has submitted that it will emerge from the evidence of the prosecution’s witnesses that the deceased was not conscious on the date when his fardbeyan was recorded as is evident from the evidence of PW-8. He has also argued with reference to the evidence of PW-4 that after the occurrence she, Reyazul Miyan and her husband Aklu Ansari had first gone to the police station where their statements were recorded and thereafter the informant/deceased was taken to Chanpatia hospital and subsequently to the hospital at Bettiah. He has submitted that the first version of the prosecution’s case said to have been disclosed to the police on the very date of occurrence, is not on record and subsequent registration of FIR, nearly eight days after the date of occurrence gives rise to a genuine suspicion about false implication of these appellants. He has also referred to the evidence of the Doctor to contend that the injuries which the deceased had sustained could have happened by fall also. The Doctor has evidenced, he contends, that had immediate medical aid been provided, the deceased could have been saved. 8. Learned Additional Public Prosecutor representing the State on the other hand had submitted that failure on the part of the prosecution to prove the FIR itself may not be a ground to disbelief the entire case of the prosecution. He submits that the prosecution’s witnesses are consistent in their deposition and the finding of conviction recorded by the trial court, based on due appreciation of such evidence can not be said to be erroneous for the sole reason that the prosecution failed to prove the First Information Report. He has argued that the trial court has rightly convicted these appellants for various offences on due appreciation of the evidence adduced at the trial. 9. We have perused the impugned judgment and order of the trial court and we have given out thoughtful consideration to the rival submissions advanced on behalf of the parties as noted above. It is true that failure on the part of the prosecution to prove the FIR, itself may not be fatal to the prosecution’s case. 9. We have perused the impugned judgment and order of the trial court and we have given out thoughtful consideration to the rival submissions advanced on behalf of the parties as noted above. It is true that failure on the part of the prosecution to prove the FIR, itself may not be fatal to the prosecution’s case. The FIR is, though, not a substantial piece of evidence, it is supposed to contain the foremost narration of the occurrence and therefore, formal proof of the FIR has its own significance in a criminal trial. The consequence of the FIR being not recorded at the trial shall depend on the facts and circumstances of each case. 10. In the present case, the informant is the deceased whose fardbeyan was recorded two days after the occurrence on 15.06.2010, in the hospital at Bettiah. The occurrence had taken place within the jurisdiction of Chanpatia Police Station in the district of West Champaran (Bettiah) on 13.06.2010. It has been rightly pointed out by learned counsel for the appellant that PW-8, in her testimony has specifically deposed that after the occurrence she had gone with her husband, Aklu Miyan (PW-3) and Reyazul Miyan (PW-8) to the police station first where the statement was recorded and thereafter they had gone to the hospital and in the same night the victim was taken to Bettiah Hospital. PW-8, another son of the deceased in his evidence, in cross examination deposed that the informant was initially conscious but had become unconscious soon before reaching the police station. He regained consciousness 5-6 days thereafter. After regaining consciousness, the informant remained alive for two days and again became unconscious. It is deducible from the evidence of PW-8 that the informant was not conscious, according to him, as on 15.06.2010 when his fardbeyan is said to have been recorded in the hospital. The fardbeyan bears his Left Thumb Impression (LTI). Signature of PW-1 is there in the said fardbeyan which has been proved by PW-1 as exhibit-2. The Officer who had recorded the fardbeyan has not been examined. The contents of the fardbeyan have not been proved. In the aforesaid background, in the Court’s opinion, the prosecution has apparently failed to prove its case that the deceased had made the disclosure in relation to the occurrence in his fardbeyan said to have been recorded on 15.06.2010. 11. The Officer who had recorded the fardbeyan has not been examined. The contents of the fardbeyan have not been proved. In the aforesaid background, in the Court’s opinion, the prosecution has apparently failed to prove its case that the deceased had made the disclosure in relation to the occurrence in his fardbeyan said to have been recorded on 15.06.2010. 11. It is the evidence of PW-1 (Mohammad Ali, a full brother of the deceased) that in the fateful night, a dog had spoiled the meat prepared by the wife of the appellant, Alamgir, reacting to which he had beaten up the said dog. PW-6, Hussain Miyan and his wife, PW-4 got infuriated because of beating up of the dog and they abused the person who had beaten up the dog. That incident resulted some quarrel amongst Salim, Hussain and Alamgir. Thereafter, the appellant Alamgir came with lathi/bamboo-stick along with the appellant Rajjak. The appellant Alamgir is said to have assaulted PW-1 with lathi and when he shouted for help his full brother i.e. the informant/deceased came to pacify. According to PW-1, the appellant Rajjak, thereafter gave an iron rod blow in the head of his father because of which he fell down after sustaining injuries. After that, other persons also gave lathi blows on the person of the informant. PW-1 also deposed that the informant was taken to the police station at about 10:00 p.m. from where he was taken to Chanpatia Hospital and thereafter to M.J.K. Hospital, Bettiah. PW-6, Hussain Miyan is apparently not an eyewitness to the occurrence of assault made by the appellants on the informant (the deceased) as is evident from his testimony in paragraph-5 of his cross examination. PW-2, another independent witness has not supported the prosecution’s case, though he deposed that he had seen Salim and his son Hussain in injured condition. He deposed that Mohammad Ali (PW-1) and others had entered into some quarrel with Sabrun Khatoon, wife of the appellant Alamgir, for which she too had lodged a case against them. 12. The Investigating Officer in his deposition mentioned that he had recorded restatement of the informant on 21.06.2010 in the hospital and he had visited the place of occurrence. In his cross examination he deposed that the dispute had arisen on 13.06.2010, as the dog of PW-1 had spoiled the food of the appellant Alamgir. 13. 12. The Investigating Officer in his deposition mentioned that he had recorded restatement of the informant on 21.06.2010 in the hospital and he had visited the place of occurrence. In his cross examination he deposed that the dispute had arisen on 13.06.2010, as the dog of PW-1 had spoiled the food of the appellant Alamgir. 13. On close scrutiny of the evidence of the prosecution’s witnesses, in our opinion, failure on the part of the prosecution to prove the FIR is fatal to the prosecution’s case. This is because of the consistent evidence of the prosecution’s witnesses that the informant and the witnesses had gone first to the Chanpatia Police Station soon after the occurrence on 13.06.2010 itself. There is no explanation as to why the FIR was not registered on the same day i.e. 13.06.2010 itself, when they had gone to the police station. In view of the evidence of one of the sons of the deceased i.e. PW-8, recording of the fardbeyan itself comes under cloud of suspicion as according to him the deceased had become unconscious soon before reaching the police station and had regained consciousness four days after. The fardbeyan bears the LTI of the deceased which has not been proved. The Police Officer who had recorded the fardbeyan has not been examined. The signature of the Police Officer who had recorded the fardbeyan has not been proved. The contents of the fardbeyan have not been proved. 14. It is significant to note that no injury has been proved on any of the prosecution’s witnesses, though it is the prosecution’s case that some of the witnesses had sustained injuries caused by iron rod and lathi. 15. It is peculiar to note that it is the case of PW-1 that an altercation had taken place between him and the appellant Alamgir over Alamgir’s food having been spoiled by the dog. In course of that altercation, the deceased is said to have intervened. There does not appear to be any motive for the appellant Rajjak to have assaulted his father in that course with an iron rod in his head with an intention to kill him. 16. In course of that altercation, the deceased is said to have intervened. There does not appear to be any motive for the appellant Rajjak to have assaulted his father in that course with an iron rod in his head with an intention to kill him. 16. Situated thus, in the Court’s opinion the entire case of the prosecution becomes doubtful, taking into account the combined effect of the oral evidence of the prosecution’s witnesses, failure on the part of the prosecution to prove the FIR and corroborative evidence to prove the injuries sustained by the injured witnesses. In such view of the matter, in our considered opinion, the appellants deserve to be given benefit of doubt. 17. We do not find it safe to uphold the finding of conviction recorded by the trial court. Accordingly the impugned judgment and order dated 26.09.2018 passed by the learned Additional Sessions Judge, V, West Champaran, in Session Trial No. 561 of 2010, arising out of Chanpatia P.S. Case No. 151 of 2010, is hereby set aside. 18. Accordingly, these appeals are allowed. The appellants stand acquitted of the charges punishable under Sections 324/34, 323/34, 302, 147 of the Indian Penal Code. 19. The appellant Rajjak Miyan is in custody, consequent upon his acquittal by the present judgment. Let him be released forthwith if he is not required in any other case. The appellants Alamgir Miyan, Serazul Miyan, Ayub Anasari and Id Mohammad Miyan are on bail. They stand discharged of the liabilities of their respective bail bonds and sureties if any. I agree - Rajesh Kumar Verma, J.