V.P Mathur, J.:— The appellants are real brothers. Mr. M.P Tripathi, the then III Additonal Sessions Judge Deoria, tried them for an offence punishable under S. 302 read with S. 34, I.P.C and vide his judgment in Session Trial No. 22 of 1978, dated 18-9-78 he found both of them guilty and returned their conviction and sentenced them to imprisonment for life. Against this order the present appeal has been filed.

2. A small pedigree which is not disputed may be noted down here:—

(For pedigree see below)

3. The deceased of this case is Amruddin, son of Biran, and the first informant in Deoraj, son of Samroo, a cousin brother of Amruddin, Shahabjan and Ramjan the two appellants, are brothers of Kasidani, wife of Jatan. The evidence shows that Smt. Kasidani had deserted Jatan and was living separate from him. In any view of the matter, she is a cousin brother's wife of Amruddin and real brother's wife of Deoraj. The occurrence took place on 9-12-74 at 4.00 p.m in village Parsani Buzurg within police station Taryasujan of District Deoria. Deoraj lodged the first information report 6 miles away in the Thana Taryasujan the same day at 6.45 p.m He had got it scribed from one Inder Prasad of the village. The prosecution story is that the agricultural plot of deceased Amruddin adjoined the plot of Smt. Kasidani. On 9-12-74 at about 4.00 p.m Smt. Kasidani had broken the boundary wall between the two plots and, with a view to encroach upon a part of the land of Amruddin was breaking the earth (Dhelas) when Amruddin came there with a bundle of Moonzh on his head from the southern side. He saw what Smt. Kasidani was doing and raised an objection. There was an exchange of heated and abusive words between them. Smt. Kasidani raised alarm which brought at the place of occurrence her brothers Ramzan and Shahabjan, the former with a spear and the latter with a lathi. The cries attracted Deoraj, Jaddu, Gagan and Lal Bahadur from the thrashing floor of Inder Prasad Sahu, about 40 steps away from the place of occurrence. They also rushed to prevent any untoward incident but before they could reach to save the situation, the two appellants had already reached there and had started assaulting Amruddin with their weapons, as a result of which he fell mortally in the field and then the two appellants ran away from the spot. The witnesses brought Amruddin from the place of occurrence to the thrashing floor of Inder Prasad Sahu but he succumbed to his injuries there, before any medical assistance could be rendered. Then Deoraj got the first information report (Ext. Ka-3) scribed by Inder Prasad, thumb marked it, and proceeded to the Thana where he lodged it. A case was registered and Sri Komal Misra, the then Station Officer of the Thana, started the investigation. He conducted the inquest on the deadbody and arranged to send it to the Mortuary for postmortem examination.

4. Dr. M.M Tripathi (P.W 4) of the District Hospital Deoria, conducted the post mortem examination on the deadbody on 11-12-74 at 3.00 p.m The report is Ext. Ka-4. The following ante-mortem injuries were noted on the dead body.

1. Stab wound ½″ × ¾″ × cacity deep on the left side chest, transversely cleancut edges having sharp angles at the two extremities on the left side chest 1″ about the left middle at 2 O'clock position spindle shaped.

Biran Samroo Trilochan Amruddin (deceased) Deoraj (Informant) Jatan = Smt. Kasidani (wife)

2. Contusion 4″ × 1″ on the upper part left back 2″ below the angle of scapula transversely.

3. Contusion 3″ × ¾″ on the left side back obliquely ½″ below injury No. 2.

4. Contusion 4″ × 1″ on the middle of left back transversely 1½″ below injury No. 3 (three).

5. Abrasion ¾″ × ¼″ with contusion 3″ × 2″ around it on the back of left forearm middle front vertically.

6. Contusion 2″ × ¾″ on the right flank and right side back 5″ below the right angle of scapula transversely.

5. No injury found on the left leg.

6. The internal examination revealed that the left lung had an incised wound ¼″ × ¼″ through and through on the inferior lobe. Similarly, there was an incised wound ¼″ × 1/8″ through and through on the apex of the heart.

7. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the injuries mentioned above. It will be clear that injury No. 1 which was a spindle shaped wound could be caused by a spear and the other injuries which were contusions, by a lathi. Undoubtedly, two weapons were used and at least two persons took part in the assault.

8. The prosecution examined in all five witnesses. Out of them Deoraj and Jaddu are the only alleged eye-witnesses. All others including Dr. M.M Tripathi, are formal witnesses. The investigating officer has not been examined and the papers prepared by him have been got proved through one Ram Dihal Prasad (P.W 5). This was in spite of the fact that the defence had moved an application on 12-9-78 requesting that the Investigating Officer be summoned and examined in this case along with the other formal witnesses who have also not been examined. This application was summarily dismissed by the learned Sessions Judge without assigning any reason. Earlier also on 6-9-78 the prosecution had moved an application for adjournment and for summoning of the Investigating Officer and only one day's time was granted and then the prosecution closed its evidence by examining Constable Ram Dihal Prasad.

9. At the very outset we have to mention that the learned Sessions Judge Mr. M.P Tripathi, who tried the appellants, did not do his duty conscientiously and satisfactorily. The Investigating Officer almost in all the cases is a very important witness and in the case in which on behalf of the accused a specific request is made that the Investigating Officer should be examined, rejecting of an application to that effect, without assigning any reason for the rejection, only shows that the learned Judge has not properly applied his mind and has not controlled the proceedings in his Court, which was a part of his duty as a Sessions Judge. We had a thought to summon the Investigating Officer and examine him in Court, but for two reasons we have not found it necessary to do so now. Firstly, it is not only the Investigating Officer who has not been examined in the case, but the persons who took the dead body from the scene of occurrence to the Mortuary and identified it there when the Doctor examined it there, and the persons who obtained the sealed bundles and brought it from the spot to the Thana and thereafter, if at all, took the same to the Chemical Examiner, have also not been examined. The site plan prepared by the Investigating Officer was put to the witnesses and there is some contradiction as regards the directions and the locations all around the scene of occurrence. It was, therefore, necessary to examine these formal witnesses also. In our opinion, however, since the prosecution case has not been satisfactorily made out, the absence of the Investigating Officer and other formal witnesses will have no material effect upon our decision now. We cannot but impress upon the subordinate Judges, who try Sessions cases, to be very careful and cautious when trying a case, especially on murder charge. If prosecution fails to discharge its duty, it is still the duty of the Judge to see that all the necessary evidence which could have any effect upon his judgment and when appears to be necessary in order to arrive at a just decision, is summoned and examined.

10. Of the two eye-witnesses examined in this case, Jaddu (P.W 3) has turned hostile. The law is that the testimony of the hostile witness is not to be treated as completely washed out. It has to be looked into and the Court has to come to a conclusion whether in spite of his hostility to the prosecution there is something in his evidence which finds corroboration from the other evidence of reliable nature and can be looked into for the proper decision of the case. The learned Judge, who tried this case, did not pay any attention to this aspect of the matter. Our perusal of the statement of Jaddu reveals that in his examination-in-chief he made two different statements because in the beginning he came up with the case that the occurrence took place at 4.00 p.m While he himself was in the khalihan of Inder along with Lal Bahadur, Gagan and Deoraj. Then he says that he saw the two appellants Ramzan and Shahabjan raising cries and on that, first Deoraj ran towards them, and then he along with others also rushed towards the field of Jatan. Jatan's wife Smt. Kasidani was present in the field. This is the first part of his statement. In the second part, again during the examination-in-chief he took a somersault and says that in the field he saw the dead body of Amruddin lying and Ramzan and Shahabjan were not present there. He also did not see anybody hitting Amruddin nor did he see the appellants running away. At this stage he war. treated as hostile and was cross-examined by the prosecution and his statement under S. 161, Cr. P.C was put to him, which in the absence of the Investigating Officer could not be proved. Now the reason why the testimony of this witness should be discarded and not taken into consideration, is not that he has turned hostile, but is that in his examination-in-chief he gave two different versions which are self contradictory. In the first place he says that all the witnesses ran at the cries of Ramzan and Shahabjan and reached the field of Jatan where Jatan's wife Smt. Kasidani was present. Then he says that when they reached there the dead body was lying and neither Ramzan nor Shahabjan was present and none of them was even seen running. He is thus a completely wavering witness and hence unreliable. Moreover, there is no justification for treating him hostile because his statement, allegedly recorded under S. 161, Cr. P.C has neither proved nor brought on the record. Under these circumstances, Jaddu was not a reliable person.

11. This will leave Deoraj only (P.W 2) to be considered. He says in his statement that the occurrence took place at 4.00 p.m and he got the first information report scribed within about half an hour and then started for the thana at about 4.30 p.m and took 2-2½ hours to reach the police station and he reached the Thana at 8 or 9 p.m In this light of this statement, it is really very strange that the first information report shows that it was taken down at 6.45 p.m He also says that from the injuries of the injured blood fell on the spot where he had been assaulted. No blood appears to have been taken from that place by the Investigating Officer. The site plan which has also been proved by a Constable who did not accompany the Investigating Officer to the spot does not mention any blood on point ‘B’. On the contrary, the bloodstain and simple earth was taken from point ‘A’, which is the khalihan and where the dead body was found by the Investigating Officer when he reached the spot. This fact is mentioned in the site plan itself. It means., therefore, that there is a grave doubt about the occurrence having taken place in the agricultural field of Amruddin as is alleged by the prosecution and there is some doubt about the time of occurrence also. According to the testimony of Deoraj (P.W 2) on hearing the cries of Smt. Kasidani, the witnesses ran from the khalihan which is 30-40 paces away while the accused persons ran from in front of their house which is at a distance of 100 steps. It is really very strange that in spite of the fact that the appellants had to go a much longer distance, they could reach the spot and kill Amruddin and run away from there before the witnesses could reach there. Deoraj also admits that his sister has deserted her husband and she is now living with accused-appellant Ramzan. The defence is, therefore, justified to argue that since Deoraj's sister is living with Ramzan as his wife and has deserted her husband, the relations between Ramzan and shahabjan on the one hand and Deoraj on the other are strained.

12. The contention on behalf of the appellants that the deceased was murdered sometime when it was dark, not in his agricultural field but in the khalihan from where the dead body was ultimately recovered cannot be dismissed as absolutely without force. In the first information report, which was lodged in this case, besides Deoraj, the other eye-witnesses who have been named are Gagan, Jaddu and Lal Bahadur. Jaddu has not supported the prosecution case and is an unreliable witness. There is no reason why Lal Bahadur and Gagan had not been examined. The mere allegation that they were not prepared to support the prosecution case and had been won over by the appellants will not be sufficient. Opportunity should have been given to the Court to assess their evidence and come to that conclusion. This has been denied.

13. The almanac will show that the sun set on 9-12-74 at 5.17 p.m the statement of Deoraj shows that he took a considerable time in reaching the thana because of the dark night. It means, therefore, that in covering the distance of six miles he had to traverse through the darkness of the night and in turn it will mean that when according to him he reached the thana at 8 or 9 p.m then the occurrence might have taken place after sunset when it had become dark.

14. Considering all the aspects of the matter including the lacuna in the evidence, we are of the opinion that the prosecution has completely failed to prove its case beyond doubt and, on the basis of the evidence that was led, there was no justification for convicting the appellants. In the result, the appeal is allowed, the judgment and order dated 18-9-1978, passed by Sri M.P Tripathi, the then III Additional Sessions Judge, Deoria, convicting the appellants Shahabjan and Ramzan under S. 302/34, I.P.C and sentencing them to imprisonment for life is set aside. They are both given benefit of doubt and hence not found guilty and are acquitted. They are on bail and they need not surrender. Their bail bonds are cancelled and the sureties discharged.

15. Appeal allowed.