JUDGMENT 1. - Appellant Arjuna Ram was tried for the offences under Sections 302, 440, 148, 149, 435 and 201 I.P.C. by the learned Additional Sessions Judge, Merta and was convicted for the offences under Section 307/149, and 147 I.P.C. and sentenced to four years rigorous imprisonment and a fine of Rs. 50/-, in default to undergo two months rigorous imprisonment for the first count and one years rigorous imprisonment for the second count with an order that the substantive sentences shall run concurrently. 2. Briefly, stated the facts of the case giving rise to this appeal are that there were two factions in the village Balaya. Ramnath complainant and Lakharam deceased belonged to one party and the appellant and other co-accused, who had been separately tried, belonged to the other party. There was litigation between the two factions. Ramnath (PW11)had gone to village Bhakrod on 22nd March, 1970 and was returning the same night to village Balaya in his tractor driven by deceased Lakharam at about 2.0 or 2.30 P.M. In the intervening night of 22nd and 23rd March, 1970 when the tractor reached near the Bara near the Field of Poona at the village, Ramnath saw from a distance of about 50 paundas a group of persons armed with lathis and farsis rushing towards the tractor. They surrounded the tractor and one of them, Parsaram by name, fired a shot from the gun towards complainant Ramnath. He took to heels but when he had reached only a few paundas away from the tractor, Parsaram fired another shot. Ramnath did not sustain any injury and succeeded in making good his escape. He went to village Mundiyar where he met (PW 5) Ramnarain @ Narain. Ramnath told about the incident to Ramnarain and asked him to go and find out what the miscreants had done with the tractor and the driver Lakharam. Ramnath then left for Nagaur, Ramnarain went to the site and saw the tractor burning but he did not see any trace of Lakharam. Ramnarain went to Nagaur and at about 10 or 11 in the morning informed Ramnath about the tractor being burnt and the whereabouts of Lakharam not known. Ramnath got a report written from his brother Sukhdeo who was studying at Nagaur and was residing in the Boarding House. The report was filed before the Superintendent of police, Nagaur or, that very day. Ramnath got a report written from his brother Sukhdeo who was studying at Nagaur and was residing in the Boarding House. The report was filed before the Superintendent of police, Nagaur or, that very day. The report was forwarded to S.H.O. Mundwa who registered a case under the aforesaid sections. The S.H.O. Roop Singh (PW 13) went in the site and saw the burnt tractor there. He took in possession the shoes and certain other articles lying near the tractor belonging to Lakha. Following certain foot prints going towards a well, the S.H.O. went towards that side and found the dead body of Lakha in the well, which was taken out. After necessary investigation, the charge-sheet against ten persons was filed in the court of Munsif Magistrate, Nagaur. They were committed to the court of Sessions Judge, Merta to stand their trial. They were tried by that court and convicted. The charge-sheet against appellant Arjuna Ram was filed under Section 512 Cr.P.C. (old) as he had absconded. Arjuna Ram surrendered before the S.H.O. Police Station, Mundwa on 8-12-1974 and, therefore, supplementary charge-sheet was filed in the court of Chief Judicial Magistrate, Nagaur who committed him to the Court of Sessions to stand his trial. 3. The learned Additional Sessions Judge proceeded with the trial and examined 15 witnesses in all produced from the prosecution side. The appellant totally denied the allegations levelled against him in his statement under section 313 Cr. P.C. He took the plea of alibi contending that he was not present at village Balaya on that day and was living at village Deldar since long. To substantiate his plea he examined five witnesses. The learned Additional Sessions Judge placed reliance on the prosecution evidence and passed the judgment under appeal. 4. The learned counsel for the appellant strenuously contended that the ten co-accused who were convicted by the trial court have been acquitted by the Division Bench of this Court on 19-1-1979 and the case of the present appellant does not stand on a different fooling and, therefore, he also may be acquitted. 5. The learned Public Prosecutor does not dispute the contention about the acquittal of the ten co-accused. 6. Those accused had filed appeals for their conviction while the State ha preferred an appeal against their acquittal for the offence of murder. 5. The learned Public Prosecutor does not dispute the contention about the acquittal of the ten co-accused. 6. Those accused had filed appeals for their conviction while the State ha preferred an appeal against their acquittal for the offence of murder. The appeals filed by the State and those filed by those accused were tried and were disposed of by a single judgment dated 19-1-1979. This is correct that the case against Arjuna Ram appellant arises out of the same incident but the judgment passed against the co-accused in a separate trial cannot be itself be taken to be a ground for the acquittal of the appellant tried separately for the reason that witnesses are separately examined in the two trials and it is the evidence adduced in a particular trial which alone can be used for the particular accused tried in that trial. In this view of the matter, I carefully examined the evidence recorded by the learned trial Judge in the trial of Arjuna Ram. 7. Prosecution has based its case on the testimony of complainant Ramnath eye-witnesses Ramchander and Himmataram and the evidence of Ramnarain. 8. Himmataram had died prior to this trial and, therefore, his statement recorded in the previous trial was taken on record and he was marked as PW. 14. The learned Sessions Judge has not believed the testimony of Himmataram in view of his un-natural conduct in not disclosing the fact of his seeing the miscreants committing the mischief of setting fire to the tractor and four of them taking away Lakharam towards the well. The witness was present at the time of cremation of Lakharam and has admitted the presence of about two police employees at that time and still he did not disclose any information to them. It was only on 25-3-1970 that he was examined by Roop Singh S.H.O. While disbelieving his testimony this fact was also taken into consideration by the learned trial Judge that, had he been there and had talked with the mircreants, they would not have let him go free in order to have any evidence against them. 9. Himmataram being disbelieved, the only eye-witness to the occurrence besides the complainant Ramnath is Ramchander. This witness has not supported the prosecution case and was, therefore, disowned by it. 9. Himmataram being disbelieved, the only eye-witness to the occurrence besides the complainant Ramnath is Ramchander. This witness has not supported the prosecution case and was, therefore, disowned by it. So far as, Ramnarain is concerned he is not of much help to the prosecution because he had only seen the tractor burning. In such circumstances the only evidence against the appellant is that of Ramnath. 10. To appreciate the evidence of Ramnath in his proper perspective, the first point to be determined is whether his presence at the time of the incident can be believed, and even if so, whether he was actually in a position to identify the miscreants. In this connection, the learned counsel for the appellant has emphatically argued that the conduct of Ramnath is most unnatural. Ramnath has stated that he had seen the 11 miscreants surrounding the tractor and on his trying to run away, Parasram had fired two shots at him. This witness instead of staying at the village and asking people to go to the rescue of Lakharam, had run away to Nagaur, which cannot be expected of a person in natural course of human conduct. Police Station Mundwa is nearer to village Mundiyar than Nagaur and the argument of the learned counsel for the appellant, that in case there would have been any apprehension visualised by Ramnath he would have immediately rushed to the police station to seek the help of the police instead of going to Nagaur and waiting there for Ramnarain to furnish information to him, is not devoid of force. An important factor which deserves consideration is that Ramnath has given inconsistent statements at this police and the trial regarding certain material facts. Even if this is not given much importance still his earliest version given to Ramnarain is noteworthy. Ramnarain has deposed at the trial that Ramnath had told him the names of 11 persons surrounding the tractor and Parsaram firing the shot at him. Attention of Ramnarain was drawn to his police statement Ex. D-2, where he has specifically deposed that Ramnath had not told him the names of the miscreants. In that statement the witness has also stated that the name of the person who fired the shot was not told by Ramnath to him. Attention of Ramnarain was drawn to his police statement Ex. D-2, where he has specifically deposed that Ramnath had not told him the names of the miscreants. In that statement the witness has also stated that the name of the person who fired the shot was not told by Ramnath to him. There are certain other contradictions in the two statements of Ramnarain, that is, one before the police and the other at the trial, but they are not of much relevance in the case because his evidence has been attempted to be taken help of by the prosecution only as a corroborative piece of evidence to the testimony of Ramnath. Though the statement of the witness before the police can not be taken into consideration, still this may be inferred that the initially story narrated by Ramnath to him was altogether different from the one put forth before the court during the course of trial by Ramnath and Ramnarain. The statement of Ramnath taken together with that of Ramnarain lands to the conclusion that even assuming that Ramnath was present there, it is still doubtful whether he was actually in a position to identify the miscreants. It is pertinent to note that the witness has stated that from a distance of about 50 paundas he had seen the group of persons armed with lathis and forsis and, therefore, he jumped from the tractor. His attention was drawn to his previous statement, wherein he had stated that he did not see behind by turning his neck. This type of version given by the witness coupled with his unnatural conduct of not informing the villagers about the incident and remaining contented with asking Ramnarain alone to find om what was happening to the tractor, casts doubt on the truth of his version. This being the position of the statement of solitary evidence to the Occurrence, the delay in filing the information assumes important. Instead of informing at the nearest police station Mundwa, Ramnath went to Nagaur and there too did not tell any body as to what he had suffered and under what danger Lakharam, the driver of the tractor, was. This being the position of the statement of solitary evidence to the Occurrence, the delay in filing the information assumes important. Instead of informing at the nearest police station Mundwa, Ramnath went to Nagaur and there too did not tell any body as to what he had suffered and under what danger Lakharam, the driver of the tractor, was. He waited till the next morning for the arrival of Ramnarain and even after that he did not inform the police immediately despite the house of Superintendent of police being nearby, rather went to Boarding House to get the report written from his brother Sukhdeo. The argument of the learned counsel for the appellant, that Ramnath being inimical to Arjunaram had involved him also in the matter, as there was sufficient time at his disposal to think as to who were to be implicated. is full of force. 11. The learned counsel has also drawn my attention to the fact that there was delay of three days in sanding the first Information Report to the concerned Magistrate. 12. The intention of the legislature in provided for the dispatch of the First Information Report forthwith to the concerned Magistrate is to minimise the possibility of any improvement or establishment in the First Information Report. Prosecution has not given explanation about this delay in dispatch of the first Information Report to the Magistrate concerned. This fact in itself would not be sufficient to discard the prosecution case in its entirety from the evidence on record the case is otherwise duly established. But in case like the one on hand, where there is no credible, convincing evident; of any eye-witness, nor are there circumstances to connect the appellant with the commission of the crime and there is un-explained delay in filing the First Information Report, this fact assumes importance. Hence the prosecution case retire on the solitary testimony of Ramnath cannot be said to be duly established and the conviction of the appellant on such evidence can not he said to be justified. 13. Consequently, the appeal filed by Arjuna Ram is allowed and his conviction and sentence passed by the learned Additional Sessions Judge, Merta a set aside and he is acquitted of the charge levelled against him. The appellant is on bail, he need not surrender to it. His bail bonds stand discharged.Appeal allowed. *******