JUDGMENT 1. Appellant Nanda has preferred this appeal against the judgment of the Sessions Judge, Bhilwara. dated 21. 11. 1974 by which he was convicted and sentenced to life imprisonment under section 302 I. P. C. 2. The facts briefly stated were as under. On 10.6.74. Gendilal deceased who was living in village Duni for the last two years came to the field of Bansilal to meet him. He then told Bansilal that he was going to meet his brother Deva. The deceased Gendilal left the company of Bansilal and proceeded to see his brother Deva. When he reached near the well of Devi Kalal, Deva, Hazari, Ghissa, Nanda, Moolia and Dalu attacked the deceased and gave him mercikss beating. It is further alleged that Nanda was armed with an axe and the other accused were armed with lathis. Nanda appellant gave fatal axe blow to Gendilal. P. W. 2 Bansilal heard the cries and went to the scene of occurrence and witnessed the entire incident. It is further alleged in the F. I. R. that some of the villagers including Berdu Teli, Deva Khatik, Muliya Nai and Jagdish Kalal have also arrived at the scene of occurrence and witnessed the assault on Gendilal. This incident is alleged to have taken place on 10.6.1974. at 5 p. m. in the precints of village Pipiund. Bansilal lodged the report of the incident on the next day at 2 p. m. in village Bhawanipura to the S. H. O. of Police Station Jahazpur namely Shafuddin. The police conducted the usual investigation and got the dead body of Gendilal examined. After completing the investigation, out of the six persons nemed in the F. I. R., the police presented a challan against Deva, Ghissa and Nanda only in the court of Munsif Magistrate, Gluabpura who committed them to face trial to the court of Sessions Judge, Bhilwara. The learned Sessions Judge disbelieved the only intact eye witness P. W. 2 Bansilal as far as he tried to prove the complicity of Deva and Ghissa in the murder of Gendilal. The learned Sessions Judge, however, believed the testimony of Bansilal in coming to a finding that the appellant murdered Gendilal. 3. We have heard the learned counsel for the appellant and the public prosecutor and gone through the record of the case carefully. It is not disputed before us that Gendilal met a homicidal death. The learned Sessions Judge, however, believed the testimony of Bansilal in coming to a finding that the appellant murdered Gendilal. 3. We have heard the learned counsel for the appellant and the public prosecutor and gone through the record of the case carefully. It is not disputed before us that Gendilal met a homicidal death. P. W. 1 Dr. Laxmi Chand Kabra conducted the post mortem examination of the dead body. He found the following ante-mortem injuries which were sufficient in the ordinary course of nature to cause death on the body of deceased Gendilal:-External Injuries: 1. Cut wound vertically from occipital area upto lower end of back of neck 4" x 2" x 2" cutting all muscles and dislocation and fracture of 2nd cervical vertebrae and also cutting the occipital bone having cut mark fracture. Spinal cord at 2nd cervical vertebrae severed completely. 2. lacerated wound 11/2" x ⅓" through and through on left side of the lower lip upto left angle of mouth. 3. lacerated wound 11/2" x ⅓" through and through on left side of upper lip. 4. left side maxillary bone upto left eye found fractured in 3 - 4 pieces. 5. Black haemotoma contusion 2" x l1/2" on right side of chest near right axilla. Internal injuries: 1. Occipital bone having cut marks and fractured. 2. Second cervical vertebrae dislocated and fractured. 3. Cord severed and disconnected at the level of second cervical vertebrae. 4. It was argued by the learned counsel for the appellant that it would not be safe to base conviction of Nanda for the murder of Gendilal on the sole testimony of P. W. 2 Bansilal which has not been corroborated by circumstance or ocular evidence whatsoever. This witness was definitely disbelieved for as the two other accused persons namely Deva and Ghissa and also against the three more persons namely Hazari, Muliya and Goru, whom he also tried to implicate in the F. I. R. Thus the witness could be put in the category of partly reliable witness and his statement by itself was insufficient to prove any offence beyond reasonable doubt against the appellant. The learned Public Prosecutor tried to argue that the ftatement of Bansilal P. W. 2 is corroborated by the F. I. R. 5. The learned Public Prosecutor tried to argue that the ftatement of Bansilal P. W. 2 is corroborated by the F. I. R. 5. In our opinion the F. I. R. cannot be made use of in this case to corroborate the testimony of P. W. 2 Bansilal. In the first instance the occurrence took place at 5 p. m. on 10.6.74 but the F. I. R. was lodged by P. W. 2 Bansilal at 2 p. m. on the next day in village Bhawanipur. In his statement Bansilal has stated that he did not go to the Police Station Jahazpur in the night because of heavy rains and also because he was afraid of the accused party. Next day early in the morning he came to know that Deva Goojar had gone to the police station for making the report. However, the police did not arrive in the village till 8 a.m., therefore, he left for the Police Station Jahazpur to lodge the report. The S. H. O. met him in Bhawanipur where he submitted to the S. H. O. the written report. If the witness was really anxious to lodge the F. I. R. at the earliest, he should have left for the Police Station Jahazpur soon after 8. a. m. It may be stated that the Police Station Jahazpur is within 5 miles of the scene of incident. Thus in our opinion P. W. 2 Bansilal has failed to adequately explain the delay in lodging the F. I. R. Another suspicious circumstance in respect of F. I. R. is that Bansilal admitted that he had written a report on a piece of paper and took it with him for submitting to the police. However, it was not properly written. Therefore, Mool Chand, Head Constable who was with the S.H.O. told him to write a proper report and, thereafter he obtained a paper from Mool Chand and wrote another report. This would suggest the initial version of the incident which Bansilal wrote down in the village has not been reported to the police. The F. I. R. further suffers from the infirmity that probably some other report had also reached the police and had been suppressed. P. W. 5 Bansilal son of Mohanlal has stated that Ugma informed him that Gendilal had been murdered. The F. I. R. further suffers from the infirmity that probably some other report had also reached the police and had been suppressed. P. W. 5 Bansilal son of Mohanlal has stated that Ugma informed him that Gendilal had been murdered. He then at about 12.30 noon wrote down a report and sent it with Ugma to police station Jahazpur. After sometime a constable namely Puri came to his house and took him to the scene of incident where the S. H. O. also arrived in a truck. There is yet another infirmity in the F. I. R. that though it is alleged that it was lodged with the S. H. O. at 2 p. m. on 11.6.74. in village Bhawanipur and was registered in the police station Jahazpur on the same day at 5 p. m. yet it reached the court of Munsif Magistrate on 15.6.1974 and the prosecution did not care to afford any explanation for this inordinate delay in submitting the F. I. R. to the Munsif Magistrate. A material contradiction is found in the statements of P, W. 2 Bansilal and P. W. 12 Shafuddin S. H. O. Police Station, Jahazpur. P. W. 2 Bansilal has stated that the S. H. O. met him in village Bhawanipur and he came there in a jeep while P. W. 5 Bansilal stated that the S. H. O., arrived at the scene of incident in a a truck. P. W. 12 Shafuddin S. H. O. has also stated that he arrived at Bhawanipur in a truck. For all these reasons, we are therefore, definitely of the opinion that the F. I. R. was not promptly lodged and the delay could not be explained, adequately by P. W. 2 Bansilal. That apart the F. I. R. is somewhat a suspicious document. 6. We have also gone through the statement of P. W. 2 Bansilal carefully. The witness appears to be a member of the party of Gendilal while the appellant belonged to the party of Deva and Ghissa. It has been so admitted by P. W. 2 Bansilal who further stated that about 4 years before the incident, Chhoga was murdered and in connection with that murder he and Gendilal were accused of the offence and remained in jail together for about a year. This would also show that the witness had a bias in favour of the deceased. This would also show that the witness had a bias in favour of the deceased. It may be stated that Chhoga is none other then the father of one of the accused Ghissa. Thus the enmity between Ghissa and the witness is proved beyond doubt and as appellant Nanda belonged to the praty of Ghissa thus P. W. 2 Bansilal was inimical towards the appellant. 7. In the F. I. R., it was definitely stated that several villagers including Bardi Teli, Deva Khatik, Muliya Nai and Jagdish Kalal had appeared at the scene of incident. Bardu was examined as prosecution witness No. 3 but he did not support the prosecution case. The three alleged eye-witnesses named in the F. I. R. has been produced by the prosecution. The prosecution tried to boost up its case by production of two other witnesses P. W. 4 Devilal and P. W. 9 Ram Prasad as alleged eye-witnesses of the incident but they turned hostile to the prosecution. This is not a case where the only eye-witness available was Bansilal. The incident is alleged to have been witnessed by so many persons, yet none has come forward to corroborate the statement of Bansilal. Bansilal has definitely tried to implicate as many as five other innocent persons falsely, and his evidence was rightly disbelieved by the trial Judge for reasons given in his judgment with which we agree so far as it related to Deva, Ghissa and the three other persons named in the F. I. R. It would be, difficult under the circumstances to separate the grain from the chaff and arrive at the conclusion that this witness was speaking the truth so far as appellant Nanda is concerned. Ordinarily an accused should not be convicted upon evidence which is not accepted by the court in connection with other accused persons, unless such evidence is corroborated by direct or circumstantial testimony coming from independent source. As independent corroboration is lacking in this case, the veracity of the statement of Bansilal P. W. 2 is so adversely affected as to render it uncertain as to when he is telling the truth. As independent corroboration is lacking in this case, the veracity of the statement of Bansilal P. W. 2 is so adversely affected as to render it uncertain as to when he is telling the truth. It is, therefore, not safe to act on his uncorroborated testimony especially when his evidence has been rejected in respect of other accused and when the incident had been witnessed by a number of witnesses but the prosecution had either failed to produce them or the other eye witnesses examined in the trial did not support the only partly reliable eye-witness. 8. Even the axe alleged to have been recovered on the information and at the instance of Nanda could not be proved to be stained with human blood. For the aforesaid reasons we are definitely of the opinion that the learned Sessions Judge was sadly in error in believing the testimony of P. W. 2 Bansilal and coming to a finding of guilt against appellant Nanda. The prosecution has failed to prove any offence beyond reasonable doubt against appellant Nanda and, therefore, he is entitled to acquittal.In the result the appeal is accepted and the appellant is acquitted of the offence under section 302 I. P. C. and further the judgment of the learned Sessions Judge convicting and sentencing the appellant under section 302 I. P. C. is set aside. Appellant Nanda is confined to District Jail, Bhilwara. He shall be released forthwith if not required in any other case.Appeal accepted. *******