S.I Jafri, J.:— Appellants Vijai Shanker Misra, Dashrath Misra and Akshaibar have filed this appeal against their conviction under S. 302 I.P.C 307/34 I.P.C and 302/34 I.P.C Accused Vijai Shankar Misra was convicted under S. 302 I.P.C and was sentenced to life imprisonment. He was further convicted under S. 307 I.P.C read with S. 34 I.P.C and sentenced to undergo 7 years' R.I; whereas co-accused Dashrath Misra and Akshaibar were, convicted under S. 302 I.P.C read with S. 34 I.P.C and sentenced to life imprisonment and they were further convicted under S. 307 I.P.C and sentenced to undergo R.I for 7 years. All the sentences to run concurrently. The appellants were as such convicted and sentenced by the judgment dated 4-6-1977 of Sri G.D Chaturvedi, 2nd Additional District and Sessions Judge, Varanasi.

2. A revision was also filed against the appellants for the enhancement of sentences by P.W 1 Ram Shromani Misra and the said revision was admitted and notices were issued to the appellants. The occurrence is alleged to have taken place on 17-4-1976 at about 8 p.m in village Boochi, Police Station Phoolpur Distt. Varanasi at the house of deceased Dhruv Nath who was the cousin of P.W 1 Ram Shromani and while the deceased Dhruv Nath, P.W 2 Prahlad Misra, the brother of P.W 1 Ram Shromani, Subhash handra, Ram Dular were sitting and talking at the door of Dhruv Nath Misra after returning from the Court where they had gone to attend Cr. P.C Sec. 107 case, the appellants Vijai Shanker Misra, Dashrath Misra and Akshaibar reached there and at the exhortation of Akshaibar, the remaining appellants Vijai Shankar Misra and Dashrath Misra armed with Gandasha and spear respectively, had assaulted the accused Dhruv Nath Misra and P.W 2 Prahlad Misra and caused injuries to them. P.W 1 Ram Shromani who was at that time inside his house, came out on hearing the noise and found Dhruv Nath Misra and his brother P.W 2 Prahalad Misra in injured condition. The witnesses Ram Chandra Misra, Lal Bahadur and other persons of the village also arrived at the scene of occurrence, whereupon the appellants made good their escape with their weapons. It is said that the said occurrence was seen by witnesses in the light of a lantern which was burning at the door of the deceased Dhruv Nath. It is further alleged that Dhruv Nath Misra shortly after receiving the injuries, sat down and dictated the First Information Report Ex. Ka. 1 to P.W 1 Ram Shromani Misra which was read over to him and, thereafter, Dhruv Nath Misra put his thumb impression on the same and then Ram Shromani Misra took both the injured on a cart up to Mangali Bazar with the help of other residents of the village and from there they were taken to police station Phoolpur on a Truck, where the aforesaid report Ex. Ka. 1 was handed over to Head Constable P.W 5 Ramdev Yadav by P.W 1 Ram Shromani and on the basis of the aforesaid report Ex. Ka. 1, the aforesaid head constable prepared a chik report Ex. Ka. 6 at 12.10 A.M on 18-4-1976 and registered a case under S. 307/34 I.P.C against the appellants in the General Diary of the Police Station. Phoolpur which is Ex. Ka. 7 and sent the injured to S.S.P.G Hospital Varanasi for medical examination and treatment. P.W 10 Ahsanullah A.S.I was present at the Police Station when the aforesaid report of the occurrence was lodged at 12.20 A.M on 18-4-1976 and both the injured were sent to S.S.P.G Hospital Varanasi along with P.W 1 Ram Shromani Misra. Sri Ahsanullah A.S.I left the Police Station Phoolpur for the scene of occurrence at about 1 a.m on 18-4-1976 and reached the village Boochi in the morning at about 6 a.m There, he recorded the statements of witnesses Ram Chandra Misra, Lal Bahadur, Ram Lakhan, Dharam Jeet and P.W 1 Ram Shromani Misra and he then inspected the place of occurrence and prepared the site plan which is Ex. Ka. 20. He also found blood near the scene of occurrence and he took stained and unstained earth from there, and prepared FARD Ex. Ka. 2. He found two cots at the place of occurrence. He also found one lantern on the Chabutra of the deceased Dhruv Nath which is Ex. Ka. 2 and prepared its recovery memo Ex. Ka. 3 and handed over the same in the SUPARDAGI of the brother of Dhruv Nath. He then took the search of the house of appellants Vijai Shanker Misra and Dashrath and from their houses, he recovered one Lathi on which blood spots were found and he prepared its recovery memo which is Ex. Ka. 5. P.W 10 A.S.I Ashanullah, thereafter, got information that the appellants Vijai Shanker Misra and Dashrath were concealing themselves in a sugercane field on the eastern side of village Boochi and he left for the field and arrested appellants Vijai Shanker Misra and Dashrath from that field and then he returned to the police station along with the appellants and deposited the recovered articles from the scene of occurrence in the Malkhana of the police station and also lodged the appellants Vijai Shanker Misra and Dashrath Misra in the lock-up of the Police Station, P.W 10 Assanullah, A.S.I again visited the village Boochi on 19-4-1976 and recorded the statements of Subhash Chandra and Ramdular. He also searched for the accused Akshaibar but he was not found there. Then, he left for S.S.P.G Hospital Varanasi and there, he recorded the statement of P.W 2 Prahlad who was admitted there in the hospital and there he was informed that the other injured Dhruv Nath was sent from S.S.P.G Hospital to B.H.U Hospital Varanasi for the treatment as his condition further deteriorated.

3. Dhruv Nath injured succumbed to his injuries on 1-5-1976 at the B.H.U Hospital and P.W 9 Aditya Giri S.I Police Station Bhelupur proceeded to the Hospital on 2-5-1976 at 6.30 a.m and took the body of Dhruv Nath in his custody and prepared inquest report etc. and sealed the dead body and sent it to the Mortuary through P.W 11 constable Shambhunath Giri and Jaswant Singh Giri for post-mortem examination. P.W 8 Dr. S.N Srivastava, conducted the postmortem examination of the deceased Dhruv Nath on 2-5-1976 at 3 p.m and prepared the post-mortem report Ex. Ka. 14.

4. On 9-5-1976 P.W 10 Ahsanullah got information that appellant Akshaibar has surrendered in the Court of Chief Judicial Magistrate Varanasi on 3-5-1976 and he then went to the jail and recorded the statement of appellant Akshaibar. He also came to know the same day that injured Dhruv Nath succumbed to his injuries on 15-1976 in B.H.U Hospital and then on 14-5-1976 vide G.D 11 of the police station Phoolpur, the aforesaid case under S. 307/34 I.P.C was converted to S. 302/3241. P.C The said G.D entry of police station Phoolpur is Ex. Ka. 22. P.W 10 Ahsanullah, A.S.I admitted in his cross-examination that though the case was registered at Police Station Phoolpur in his presence but he did not record the statements of the two injured as they were being sent to the Hospital for treatment. He also stated that after 9-5-1976, the investigation of the case was taken over by P.W 6 Udai Narain Singh, station officer of Police Station Phoolpur.

5. P.W 6 Udai Narain Singh who was the station officer of Police Station Phoolpur, took investigation of the case from P.W 10 Ahsanullah, A.S.I on 29-5-1976 and sent the case property to the Chemical Examiner Agra for analysis and after completing the investigation, submitted charge-sheet Ex. Ka. 9 against the appellants in the Court of Chief Judicial Magistrate, Varanasi.

6. The appellants pleaded not guilty to the charge framed against them by the trial Court and stated that they were falsely implicated in this case on account of enmity.

7. P.W 7 Dr. B.P Singh examined the injuries of the deceased Dhruv Nath Misra on 18-4-1976 at 1.50 A.M and prepared injury report Ex. Ka. 10. The deceased Dhruv Nath had received the following injuries.

1. Incised wound 15 cm. × 8 cm. × brain deep on left side of head (blood clot and brain matter coming out from the wound).

2. Incised wound 10 cm. × 7 cm. × bone deep on the upper part of the left scapula.

8. According to the opinion of Doctor both the injuries of Dhruv Nath are caused by sharp instrument.

9. Dr. B.P Singh P.W 7 had also examined the injuries of P.W 2 Prahlad Misra at 2 a.m on 18-4-1976 and he.

10. Dr. B.P Singh P.W 7 had also examined the injuries of P.W 2 Prahlad Misra at 2 a.m on 18-4-1976 and he prepared Injury Report Ex. Ka. 12. He found the following injuries on his person.

1. Incised wound 1 cm. × ¼ cm. × muscle deep on the part of right shoulder on the lateral part of right clavicial.

2. Punctured wound 1 cm. × ¼ cm. × depth not probed on the left side of chest 1 cm above left nipple with sub-cut, emphysema present.

11. According to the opinion of the Doctor, both the injuries were caused by sharp weapon.

12. P.W 8 Dr. S.N Srivastava conducted post-mortem examination on the dead body of Dhruv Nath on 2-5-1976 at 3.50 P.M and prepared post-mortem report Ex. Ka. 14. He had found the following anti-mortem injuries.

1. Stitched wound 14 cm long semi lunar extending from the midline to the left ear (15 stainless steel stitches.)

2. Infected wound 10 cm. × 3 cm. × muscle at the back of left shoulder.

3. Bed-sore 4, ½ cm. × 4 cm. at the back (LS)

4. Septic wound 2 cm. × 1, ½ cm. × muscle at the front and root of neck: only two stitches present at the upper and lower pale.

13. According to the opinion of the doctor, death was caused due to haemorrhage and shock as a result of injuries.

14. We have heard Sri A.D Giri, learned counsel for the appellants and Sri Jitendra Kumar learned Government Advocate for the State at a great length and we feel ourselves unable to sustain conviction of the appellants recorded by the Trial Court.

15. The prosecution examined 11 witnesses in support of the case out of them P.W 2 Prahlad, P.W 3 Ram Dular and P.W 4 Dhruv Nath son of Ambika are the eye-witnesses. P.W 3 Ramdular and P.W 4 Dhruv Nath, son of Ambika were not relied upon by the Trial Court and they were disbelieved. P.W 1 Ram Shromani who is the brother of P.W 2 Prahlad Misra and also a cousin of deceased Dhruv Nath, is the scribe of the report Ex. Ka. 1, which was dictated to him shortly after the aforesaid occurrence by the deceased Dhruv Nath in a sitting posture and according to him, after taking down the aforesaid report, he read over the said report to the deceased and the deceased had put his thumb impression upon the same.

16. It is alleged that there was enmity between Vijai Shanker appellant and the deceased Dhruv Nath. The accused Vijai Shanker Mishra had prosecuted Mangla alias Bachan Ram, Ramshakal and Ram Tahal under S. 323/324 I.P.C in the year 1974 in which Dhruv Nath was the witness for Vijai Shanker appellant, but he refused to give evidence for him and this led to enmity between Vijai Shanker Mishra and the deceased Dhruv Nath. Besides this, Vijai Shanker Mishra appellant had filed another case under S. 436/323 against Mangla in which Dhruv Nath deceased was also witness for Vijai Shanker Mishra appellant but the deceased had filed affidavit in the Court in favour of Mangla. It was further stated that the police had also challaned Dhruv Nath deceased and other persons of the village on one side and Vijai Shanker Mishra and others on the other side under S. 107 Cr. P.C prior to the occurrence and 17-4-1976 was fixed for hearing in the aforesaid case under S. 107 Cr. P.C in the Court of A.D.M (City) Varanasi in which Dhruv Nath deceased. Ram Shromani Mishra and a few others had come to the Court on 17-4-1976 from one side and the accused vijai Shanker Mishra and Akshaibar also attended the Court of the aforesaid Magistrate on the aforesaid date and according to the prosecution's allegations, both the parties returned to their village after attending the Court of Magistrate on the date of occurrence and it is then said that at about 8 P.M on the same day while the deceased Dhruv Nath along with Subhash P.W 3, Ramdular and P.W 4 Dhruv Nath son of Ambika, Rama Shanker and P.W 2 Prahlad were sitting and talking at the door of Dhruv Nath, the alleged occurrence took place in which Dhruv Nath deceased and P.W 2 Prahlad Mishra had received injuries by the hands of the appellants Vijai Shanker Mishra and Dashrath Mishra on the instigation of Akshaibar.

17. From the above, it is clear that there was enmity between the parties from before the occurrence of this case and proceedings under S. 107 Cr. P.C were also going on between them. Enmity is a double edged weapon which cuts both ways and as such there may be strong motive for the accused to commit the offence and at the same time the accused may also be falsely implicated by the aggrieved party on account of enmity.

18. The learned Sessions Judge after discarding the evidence of P.W 3 Ram Dular and P.W 4 Dhruv Nath son of Ambika had placed reliance upon the statement of P.W 2 Prahlad Mishra, who is the injured witness and had also placed reliance upon report Ex. Ka. 1 by treating the said report as dying declaration. He also relied upon the statement of P.W 1 Ram Shromani Mishra who had stated that shortly after the occurrence, the deceased Dhruv Nath had dictated to him the report Ex. Ka. 1 while in a sitting posture and after writing the slid report on the dictation of the deceased Dhruv Nath, P.W 1 Ram Shromani, had put the thumb impression of the deceased on the said report Ex. Ka. 1 after reading over the report to the deceased.

19. Admittedly in this case, as stated above, there was enmity between the appellants and the complainant party from before the occurrence and therefore, the evidence of P.W 2 Prahlad Mishra and P.W 1 Ram Shromani Mishra requires strict scrutiny for placing reliance on their testimony as both the witnesses are partisan as they are closely related to the deceased. No doubt, P.W 2 Prahlad Mishra is an injured witness but merely on account of the presence of injuries on his person, he cannot be treated as a wholy reliable witness, if his evidence fails to stand the test of reliability. The presence of the injury on the person of a witness does not give any guarantee about his truthfulness.

20. It is argued by the learned defence counsel that the deceased could not have spoken after receiving the injuries as he must have become unconscious and as such the report Ex. Ka. 1 could not be dictated to P.W 1 Ram Shromani by the deceased Dhruv Nath. In this connection, the learned counsel for the appellant had referred to the statement of P.W 7 Dr. B.P Singh, who had admitted in his cross-examination that the deceased Dhruv Nath would have become semi-unconscious after receiving the injuries and as such he could not give coherent statement. P.W 7 B.P Singh further stated that left part of the head of the deceased Dhruv Nath (injury No. 1) was cut and brain matter had come out from the said wound and beneath also the brain was found cut, which is apparent from the post-mortem report. Dr. B.P Singh had also stilted that the speech centre of the right handed man is found on the left side of the head. He had also admitted that on account of cutting of the brain, the working of the brain must have been affected and as such the injured after receiving the injury, must have been semi-unconscious. He had further stated that in semi-conscious condition, sometimes the injured responds to painful stimuli but the injured cannot give coherent statement and he also cannot talk coherently. He has further stated that Dhruv Nath deceased after receiving the injury, would not have been in a position to speak. Dr. B.P Singh has further stated that aphsic means that the injured cannot speak and he had raid that so long as injured Dhruv Nath remained in the Hospital, he was not at all in a position to speak. Dr. Singh had further stated that aphsic condition of the injured developed on account of cutting of the left temporal and the injured must have also suffered from cerebral ocederma and as such this condition develops on account of the head injury. Dr. Singh further stated that the deceased after receiving Injury No. 1 would not be in a position to sit down and he must have fallen on the ground. Dr. Singh further admitted in re-examination by the learned State counsel that from the nature of the injury, the injured Dhruv Nath must have come under shock and in semi-unconscious condition. He has further stated that it is difficult to say how long before the medical examination, the injured would have remained conscious but it is more probable to the extent of 99% that the deceased immediately after receiving the injury must have fallen unconscious. Dr. Singh has further stated that the head injury of Dhruv Nath was very serious and the patient must have gone under shock immediately after receiving the said injury.

21. P.W 8 Dr. S.N Srivastava who conducted the post-mortem examination of the deceased Dhruv Nath had stated in his evidence that the head injury of the deceased was of a very serious nature. He had found a laceration in the brain which was very long and broad. He has further stated that the speech centre lies beneath the outer portion of the brain. He had further found the left side of the brain lacerated. He also found the left side of the brain of the deceased Dhruv. Nath lacerated and as such speech centre would have been affected and on account of the injury, the brain could have been dislodged to some extent and in view of the length and breadth and serious nature of the injury of the deceased, there might have been dislodging of the brain of the deceased and on account of dislodging of the brain, the speech centre may or may not have been affected but it is more probable that the brain centres of the deceased must have been affected and as such, it is more probable that the speech centre of the deceased must have been affected and as such the speech centre of the deceased had become affected, then the deceased could not have spoken coherently and further, he stated that on account of the nature of the injury, the deceased might have become semi-unconscious but there is more probability in this case that on account of the aforesaid injury, the deceased could not have spoken at all after the said injury.

22. After thoroughly examining the evidence of both the doctors P.W 7 B.P Singh and P.W 8 S.N Srivastava, we are of the view that the deceased Dhruv Nath after receiving the head injury which was of a very serious nature, could not have dictated the report Ex. Ka. 1 to P.W 1 Ram Shromani Mishra.

23. According to the statement of P.W 1, Ram Shromani Mishra, the deceased Dhruvnath had read up to Class Vth and he could write and sign in Hindi. P.W 1 Ram Shromani Mishra also admitted that the deceased used to do his usual work by his right hand. It would be noted that there was no injury on the right hand of the deceased Dhruv Nath either in the report or in the post-mortem report and, therefore, the presence of alleged thumb impression on Ex. Ka. 1 of the deceased Dhruv Nath instead of his signatures, also creates doubt about the genuineness of the thumb impression on Ex. Ka. 1. Moreover, it was admitted by P.W 1 Ram Shromani Mishra that the deceased Dhruv Nath used to do his work by the right hand and therefore on account of the cut injury on the left side of the head of the deceased, the speech centre of the deceased must have been affected resulting in semi-unconsciousness of the deceased immediately after receiving the injury on the head and, therefore, it is again highly doubtful that after the speech centre of the deceased was affected, the deceased could have spoken and dictated the FIR Ex. Ka. 1 coherently to P.W 1 Ram Shromani Mishra. It was further submitted by the learned counsel for the appellants that the entire contents of FIR Ex. Ka. 1 is written in the first person but there is also mention of the words ‘Dhruv Nath Putra Rama Shankes’ by the deceased for himself. This shows that F.I.R was not dictated by the deceased Dhruv Nath. A perusal of the F.I.R Ex. Ka. 1 shows that in the 12th sentence, there are words ‘DHRUVNATH PUTRA RAMA SHANKER KO GANDASE SE MARA……’ and it therefore, shows that a person while dictating the F.I.R to the scribe in the first person, all of a sudden mentions himself in the third person as ‘DHRUV NATH Putra Rama Shanker’ creates strong suspicion about the bona fide of the First Information Report. It was further contended by the learned counsel for the appellant that in the First Information Report Ex. Ka. 1, there appears to be double thumb impressions of the deceased and, therefore, it shows that they are not genuine thumb impressions of the deceased as the thumb impressions have become blurred so that it could not be specifically compared by the expert with the admitted thumb impressions of the deceased from some other documents. We have carefully examined the alleged thumb impression of the deceased on Ex. Ka. 1 with the help of a magnifying Glass and we are of the view that the thumb impressions are blurred. It may further be noted that P.W 1 Ram Shromani Mishra has also admitted in his evidence that he first put the thumb impression of the deceased immediately after writing Ex. Ka. 1. Shortly after the occurrence in the village but on reaching the police station with the injured, he had put another thumb impression of the deceased on the earlier thumb impression on Ex. Ka. 1 on the direction of P.W 5 Head Constable Ramdev Yadav as the earlier thumb impression was faint. However, P.W 5 Ramdev Yadav head constable had denied in his evidence that he directed the P.W 1 Ram Shromani Mishra at the police station to put second thumb impression on the earlier thumb impression of the deceased. Furthermore, from a close perusal of the First Inforation Report Ex. Ka. 1, it will be seen that the thumb impression of the deceased is affixed on the writing in Hindi Nishan ANGOOTHA DHRUVANATH PUTRA RAMA SHANKER MISRA adjacent to the word PRAITHI written in Hindi. This also creates doubt regarding the thumb impression of the deceased Dhruv Nath on the First Information Report, it may further be noted that there is sufficient space between the lines of the top of the report Ext. Ka. 1 but the space between the lines, becomes narrower and narrower as the writing goes down below, up to the alleged thumb impression of the deceased and, therefore, it appears that some thumb impression was taken on the blank paper and subsequently while writing F.I.R Ex. Ka. 1 the space from the top to downward up to the thumb impression had to be narrowed by writing the contents of the F.I.R and this was the reason that space between the lines from top to bottom up to the alleged thumb impression of the deceased had become gradually narrower. Furthermore, there is overwriting in digit 8 in date 18-4-76 written in Hindi at the bottom of Ex. Ka. 1. It is clear that digit 8 had been written on figure 7 in a different ink and when the attention of the P.W 1 Ram Shromani was drawn to this fact, he stated that he himself wrote down figure 8 on figure 7 on the asking of P.W 5 Ramdev Yadav, head constable at the police station Phoolpur but P.W 5 Ramdev Yadav head constable had emphatically denied that he had directed the P.W 1 Ram Shromani for making the above overwriting on figure ‘7’ to figure ‘8’ and, therefore, on account of the overwriting in the date, the time as to when the F.I.R Ex. Ka. 1 was scribed by P.W 1 Ram Shromani is also suspicious. It may further be noted that Chithi Mazroobi of deceased Dhruv Nath Mishra and also of P.W 2 Prahlad Misra bears the date 17-4-76 on the back side of injury report Ex. Ka. 10 and Ex. Ka. 12 after the signature of clerk constable Kamla Kant Upadhiya and S.I Ramjanam Singh. The signatures of clerk constable Kamla Kant Upadhiya and S.I Ramjanam Singh were identified and proved by P.W 5 Ramdev Yadav. It may be noted that the chik report Ex. Ka. 6 was prepared at the police station at 12.00 A.M on 18-4-1976 on the basis of Ex. Ka. 1 and also the GD entry Ex. Ka. 7 was prepared thereafter, which shows that the Chithi Mazroobi of both the injured and the deceased was then prepared by Clerk constable Kamla Kant Tripathi at the police station, but the Chithi Mazroobi of both the injured Dhruv Nath and P.W 2 Praiilad bears the date 17-4-76 which clearly shows that both the injured reached the police station on 17-4-76 and as such it appears that the Injured were brought shortly after the occurrence on a truck to Police Station Phoolpur which lies at a distance of 6 miles from the village Boochi and after preparation of the Chithi Mazroobi on 17-4-76 by clerk constable Kamla Kant Upadhiya, both the injured were sent to the Hospital by P.W 5 Ram Dev Yadav for medical treatment at Varanasi and the chik register of cognizable offences and the general diary of the police station were kept open and subsequently after due consultation, Ex. Ka. 1 was scribed by P.W 1 Ram Shromani Mishra and, then, the chik report Ex. Ka. 6 was prepared at the police station on 18-4-76 at 12.20 A.M and also the case was registered in the GD entry Ex. Ka. 7 on the basis of the Chik report at 12.20 A.M on 18-4-1976 by P.W 5 Ram Dev Yadav. P.W.5 Ramdev Yadav had also admitted in his evidence that the written report Ex. Ka. 1 was taken by him from Dhruvnath when he had come at the police station in injured condition and there is also mention in the GD Ex. Ka. 7 that P.W 5 Ramdev Yadav had got the report Ex. Ka. 1 from injured Dhruv Nath but according to the statement of Ram Shromani Mishra who claims to have gone to the police station along with the two injured and others, he had handed over the report Ex. Ka. 1 to the head constable P.W 5 Ramdev Yadav and then he accompanied the injured to the Hospital at Varanasi. It may further be noted that P.W 10 Ahsanullah A.S.I the first Investigating Officer, had stated in his evidence that he reached the village Boochi for investigation at about 6 a.m on 18-4-76 and there, he recorded the statement of witnesses including Ram Shromani Mishra, and it is, therefore, highly doubtful that P.W 1 Ram Shromani Mishra had accompanied the injured Dhruv Nath and Prahlad to the police station and had handed over the report Ex. Ka. 1 to P.W 5 Ramdev Yadav and had accompanied the injured to the hospital at Varanasi.

24. It may further be noted that P.W 1 Ram Shromani Mishra who claims himself to be the scribe of FIR Ex. Ka. 1 is the brother of P.W 2 Prahlad and also a cousin of deceased Dhruv Nath. He has admitted that prior to the occurrence of the present case, the appellant Vijai Shanker Mishra had got registered a case against him under section 307/324 I.P.C for causing incised injury to his daughter. He had further admitted that Vijai Shanker Mishra had also filed another case against him for setting fire to his property and at the time of the present occurrence, both the aforesaid cases were pending in the Court against him. P.W 1 Ram Shromani is thus, not only partisan witness but he is also inimical against the appellants and his claim about the authorship of the first information report as scribe shortly after the occurrence in village Boochi, is not at all believable in view of the clinching and convincing evidence of P.W 7 Dr. B.P Singh and P.W 8 Dr. S.N Srivastava which has already been discussed above. Moreover, the admission of P.W 6 Head Constable Ramdev Yadav that he had got the written report Ex. Ka. 1 from the injured Dhruv Nath at the police station, again creates doubt about the preparation of the report Ex. Ka. 1 by P.W 1 Ram Shromani Mishra in village Boochi shortly after the occurrence on the dictation of the deceased Dhruv Nath and handing over of the same to P.W 5 Ram Dev Yadav by him at the police station. Moreover, the claim of P.W 1 Ram Shromani Mishra that he had also accompanied both the injured to police station and then to the Hospital at Varanasi and had remained there at Varanasi with the injured, is also falsified by the statement of P.W 10 Ahsanullah A.S.I who had stated that he recorded the statement of Ram Shromani Mishra P.W 1 under section 161 Cr. P.C on reaching the place of occurrence in village Boochi at about 6 A.M on 8-4-76 and therefore, P.W 1 Ram Shromani Mishra is not at all reliable witness and as such his evidence is of no avail to the prosecution.

25. Now we are left with the sole evidence of P.W 2 Prahlad Misra, who is an injured witness. He is a young boy of 18 years and a student of class X, and is the brother of P.W 1 Ram Shromani Mishra and also a cousin of deceased Dhruv Nath and therefore, he is not only partisan witness but also inimical to the appellants. In order to prove the prosecution case, quantity of evidence is not at all needed but the quality of witness is taken into consideration for proving the charge against the accused. It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, it is necessary that the injured witness must be held to be a wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness's accounts given by him without independent corroboration by material evidence.

26. In this case, it may be noted that the statement of P.W 2 Prahlad Mishra that shortly after the occurrence, the deceased Dhruv Nath had dictated report Ex. Ka. 1 to P.W 1 Ram Shromani, has been found to be false and is not at all believable in view of the clinching and convincing medical evidence and, therefore, P.W 2 Prahlad Mishra is not at alia wholly reliable witness. Moreover, the medical evidence in this case as discussed above, shows that the deceased Dhruv Nath after receiving the head injury, could not have dictated the report Ex. Ka. 1 to P.W 1 Ram Shromani as he had become semi-unconscious and speechless after receiving the head injury. Further the chik report Ex. Ka. 6 said to be prepared at 12.20 A.M on 18-4-76 and the G.D entry Ex. Ka. 7 of PS Phoolpur also appear to be anti-timed and as such the investigation in this case, does not appear to be above board. Therefore, in such a situation, the evidence of P.W 2 Prahlad Misra, though injured witness, cannot be implicitly relied upon for the conviction of the appellants without independent corroboration which is lacking in this case. It has also been established in this case that the evidence of Prahlad P.W 2 regarding the dictation of report Ex. Ka. 1 to P.W 1 Ram Shromani is false and no reliance can be placed on this part of his evidence regarding the dictation of First Information Report Ex. Ka. 1 by Dhruv Nath to P.W 1 Ram Shromani Mishra and P.W 2 Prahlad Misra cannot be treated as a wholly reliable witness and as such it will not be at all safe to place implicit reliance on his evidence without independent corroborastion which is lacking in this case.

27. In view of the facts and circumstances of the case as discussed above, we hold that the prosecution has failed to prove its case against the appellants.

28. In the result, the appeal is allowed. The conviction of the appellants under section 302 I.P.C, 307 I.P.C 302/34 I.P.C and 307/34, I.P.C is set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Criminal Revision No. 999/1977 filed by P.W 1 Ram Shromani Mishra against the appellant for enhancement of sentence is devoid of any merit and is therefore, dismissed.

29. Appeal allowed.