JUDGMENT 1. - This appeal has been preferred against the judgment dated 10-12-80 passed by the Addl. Sessions Judge (2) Baran convicting the appellants Radhey Shyam and Narayan for the offence under Section 302 read with Section 34 I. P. C. and sentencing each of them to undergo imprisonment for life and a fine of Rs. 100/-in default of payment of fine to further under go one months R. I. 2. A challan was submitted against Radhey Shyam, Narain and Purshottam. After trial the Addl. Sessions Judge acquitted Purshottam and found guilty the appellants Radhey Shyam and Narain for the offence mentioned above. 3. On 29-10-79 Dr. R. S. Vyas, Medical Jurist, Government Hospital, Baran informed the S.H.O., Baran on telephone at 6-40 P. M. that two dead bodies of Jamnalal and Bansilal Dhakar have been brought to the hospital. On receipt of this information, the S.H.O. Kistur Chand alongwith 8 police officials came to the hospital. Din Dayal submitted a written report to the S.H.O. at the hospital at Baran at 7 P. M., which was sent to the police station where a case under Section 302/34 IPC was registered. The F.I.R. is No. 294/79. 4. The brief facts of this case are that Din Dayal was watering the field on 29-10-79 at 4-30 P.M. when suddenly in the middle linger a scorpion gave him a sting as a result of which he stopped the water pump and called Gordhan from nearby field. Then at 5 P. M. his brothers Jamunalal and Bansilal also came on the field. He told them that he had a scorpion bite and he was asked to go to the hospital. Din Dayal leaving Gordhan, Bansilal and Jamnalal on the field left for the hospital on cycle where he got an injection and took certain pills and then came to the field. By that time, the sun had set down. When he reached the field, he found his two brothers lying near his well. Jamnalal was bleeding from his stomach and had died. Bansilal was also smeared with blood and was bleeding from his mouth and head. Gordhan was standing there. Din Dayal asked Bansilal as to what had happened, on which he replied that he and Jamnalal were beaten by Radhey Shyam and his two associates whose names he did not know. He informed that both were inflicted injuries by knife. Bansilal was also smeared with blood and was bleeding from his mouth and head. Gordhan was standing there. Din Dayal asked Bansilal as to what had happened, on which he replied that he and Jamnalal were beaten by Radhey Shyam and his two associates whose names he did not know. He informed that both were inflicted injuries by knife. Bansilal also informed that Jamnalal was on the well and he was watering the field. Jamnalal was attacked by knife by all the three persons and when Bansilal tried to intervene he too was inflicted injuries. Gordhan also told him that Radhey Shyam and his two associates came on motor cycle and after inflicting injuries all the three went back towards Gajanpura. He also said that he did not know the names of two other associates of Radhey Shyam. Thereafter, Din Dayal went to the village on cycle and reported the matter to the family members and then went to Motilal, his relation. Din Dayal narrated the incident to Motilal and when he went towards the hospital he learnt at Barigate that his two brothers had reached the hospital and there he saw that Bansilal had also breathed his last. It is also alleged that some two and a half months back a quarrel had taken place between Motilals son, Kishanlal and Kallu Jatav and it was expected that due to this enmity his brothers had been killed. 5. After registering the case, the police started investigation. Site Plan (Ex. P. 7) was prepared. The police prepared the inquest memo and the dead bodies were sent for post-mortem. From the site, blood stained earth were also taken the clothes of the deceased were also taken and the clothes of the deceased were also seized. After post-mortem, the dead bodies were handed over to their relatives and thereafter on completion of the investigation a challan was submitted against three persons. 6. A charge u/s 302, IPC and in the alternative under Section 302 read with Section 34, IPC was framed against all the three persons. They pleaded not guilty and claimed to be tried. 7. The Addl. Sessions Judge, Baran recorded the statements of 19 prosecution witnesses. No defence witness was produced and after hearing both the parties he found that no case was made out against accused Purshottam and he acquitted him. They pleaded not guilty and claimed to be tried. 7. The Addl. Sessions Judge, Baran recorded the statements of 19 prosecution witnesses. No defence witness was produced and after hearing both the parties he found that no case was made out against accused Purshottam and he acquitted him. He, however, found a case u/s 302/34, IPC duly established against accused Radhey Shyam and Narain and convicted and sentenced them, as stated above. 8. The foremost point in this case is, whether the death of Jamnalal and Bansilal was a natural death or homicidal in nature. It is not disputed that both Jamnalal and Bansilal were given beating and inflicted injuries by knife. From the post-mortem report as well as the statement of Dr. Vyas (PW11) it is clear that Jamnalal and Bansilal died on account of the injuries inflicted to them by sharp weapon. Thus, it is clear that their death was homicidal in nature. 9. Mr. A. K. Gupta learned counsel for the appellant Radhey Shyam argued that the FIR. was prepared later on in consultation with Motilal, who had inimical terms with accused Radhey Shyam. The report was not lodged on the date and time as alleged by the prosecution, but it was prepared subsequently. So, this FIR is anti dated and anti time. He also argued that the FIR. which ought to have been sent immediately to die concerned Magistrate was not sent to him, but it was sent after two days. The incident is alleged to have taken place on 29-10-79 and according to the FIR. (Ex. P. 22) it was entered at the police station at 7-30 P. M. on 29-10-79. According to the endorsement on the FIR, made by the Addl. Munsif & Judicial Magistrate, Baran, it was received in his office on 31-10-79 at 10.45 A.M. Thus there was a delay-in sending the FIR, to the magistrate concerned. This delay ha, not been explained by the prosecution and it creates doubt in the truthfulness of this prosecution story. Mr. Gupta also argued that Gordhan (PW 3) the solitary eye witness and from the facts of this case it is established that Motilal was not at the present spot when the incident had taken place, but he was made a witness later on His statement is most unreliable and untrustworthy. As there was no recovery of the. Mr. Gupta also argued that Gordhan (PW 3) the solitary eye witness and from the facts of this case it is established that Motilal was not at the present spot when the incident had taken place, but he was made a witness later on His statement is most unreliable and untrustworthy. As there was no recovery of the. weapon from the accused persons the case has not been established against them. 10. Mr. A. K. Sharma learned counsel for Narayan argued that the entire case against him is based on identification parade. Narain Singh, as alleged by the prosecution, was identified by Gordhan (PW 3), and on the basis of this identification he has been convicted. There is nothing on record to show that Narain Singh had inflicted any injury by knife either to Jamnnalal or to Bansilal. The identification parade was not conducted according to the provisions of law and before conducting this identification parade the accused was shown to the witnesses at the police station. He argued that the identification parade is illegal and should not be relied upon at all. 11. The learned P. P. has argued that the prosecution has proved its case beyond reasonable doubt. Gordhan no doubt is the solitary eye witness in this case but his statement is of sterling worth and his deposition cannot be thrown away. The identification parade of Narainsingh was held according to law and he was correctly identified by Gordhan. He was an associate of Radhey Shyam accused and they inflicted knife blows to Jamnalal and Bansilal resulted in their death. So, the case has been proved against both of them and they have been rightly convicted by the learned Addl. Sessions Judge. 12. We have considered the arguments of both the learned counsel and the Public Prosecutor and have gone through the entire prosecution evidence. 13. The statement of Dr. R. S. Vyas (PW 1) is very important in this case. When the dead bodies of Jamnalal and Bansilal were brought to the hospital, Dr. Vyas informed the police station, Baran on telephone. That telephonic message was written in the Roznamcha at 6-40 P. M. on 29-10-79, and Roznamcha report is No. 1627. In the Roznamcha, it is mentioned that Dr. Vyas informed on telephone that two dead bodies of Jamnalal and Bansi Lal have been brought to the hospital. Dr. Vyas informed the police station, Baran on telephone. That telephonic message was written in the Roznamcha at 6-40 P. M. on 29-10-79, and Roznamcha report is No. 1627. In the Roznamcha, it is mentioned that Dr. Vyas informed on telephone that two dead bodies of Jamnalal and Bansi Lal have been brought to the hospital. Dr. Vyas in his cross-examination has stated that he informed the police that two dead bodies and one person having a cut in his hand have been brought to the hospital, but the police has mentioned in the Roznamcha about bringing of two dead bodies only. There is no mention in the Roznamcha No. 1627 about one person having a cut in his hand. Why incomplete information was entered in the Roznamcha by the police has not been explained. The information regarding a person having a cut in his hand is an important circumstance. The accused have submitted a copy of the F. I. R. (Ex. D. 3) which was lodged by Kallu. It is significant to mention that this Kallu is the same person who had quarrel with Kishan son of Motilal (PW 3) some two and half months before this incident. In the report lodged by Din Dayal it has been mentioned that two and a half months before there was some quarrel between Kallu and Kishan son of Motilal, and on account of this enmity Banshilal and Jamnalal have been murdered. So, the report of Kallu which is Ex. D. 3 has a bearing on this case. This Kallu was brought to the hospital on 29-10-79 along with the dead bodies of Jammalal and Bansilal. According to Ex. D. 3 the incident took place at 6 P. M. and he was beaten by Kishanlal and others, who inflicted four injuries. On account of those injuries he become unconscious and was brought to the hospital. The report (Ex. D. 3) indicates that on 29-10-79 at 6-30 P. M. he was admitted in Surgical Ward where his Parcha Bayan was recorded by S. I. Kistur Chand. After recording the Parcha Bayan (Ex. D. 3), it was sent to the police station through Banshidhar ASI. and on that FIR. No. 295/79 was registered. The report (Ex. D. 3) indicates that on 29-10-79 at 6-30 P. M. he was admitted in Surgical Ward where his Parcha Bayan was recorded by S. I. Kistur Chand. After recording the Parcha Bayan (Ex. D. 3), it was sent to the police station through Banshidhar ASI. and on that FIR. No. 295/79 was registered. On the basis of Parcha Bayan a report in the Roznamcha was entered at No. 1624 at 7-45 P.M. and then the case was registered u/s 307, IPC read with Section 34, IPC and a regular FIR. No. 295/79 was prepared. The question to be seen is how Kistur Chand S. I along with Bansidhar ASI. reached the hospital at Baran where Parcha Bayan of Kallu was recorded. The prosecution has not explained as to how the S. I. Kisturchand and Banshidhar ASI. came to Baran hospital. From the Roznamcha Report (Ex. P. 21) which was entered at 6-40 P.M. it seems that Kisturchand S. I. alongwith ASI. Hiralal and ASI. Banshidhar and ASI. Ravikaran alongwith other police officials came to the hospital. So, the S. I. Kisturchand and ASI. Banshidhar came to the hospital on receipt of the information by Dr. Vyas from the hospital. When they came, to the hospital they recorded the statement of Kallu and Parcha Bayan of Kallu was sent along ASI. Bansidhar to P. S. Baran where a report in the Roznamcha at No. 1624 was entered at 7-45 P. M. On this report, FIR. No. 295/79 was registered. The Roznamcha Report with regard to Din Dayals report is Ex. P. 21, which was recorded at No. 1627 at 6-40 PM. It is ridiculous that the Roznamcha report No. 1627 was entered at 6-40 P. M. while the Roznamcha Report No. 1624 was entered at 7-45 P.M. The Roznamcha Report regarding Kallu was the prior one, while the Roznamcha Report with regard to Din Dayal was recorded after the report of Kallu. The prior report was entered in the Roznamcha at 7-45 P.M. and the later report at 6-40 P.M. This is not at all possible and it seems that there is something bungling in making entries in the Rcznamcha. The FIR. on the basis of report lodged by Din Dayal is No. 294/79, while the FIR. lodged by Kallu was entered at No. 295/79. Actually, the FIR lodged by Kallu should have been entered earlier. The FIR. on the basis of report lodged by Din Dayal is No. 294/79, while the FIR. lodged by Kallu was entered at No. 295/79. Actually, the FIR lodged by Kallu should have been entered earlier. From the FIR. Ex. P. 22 we find that this FIR. No. 294/79 was prepared on the basis of Roznamcha Report No. 1628, which was entered at 7-30 P.M. The information given by Dr. Vyas at 6-40 P. M. has been entered in the Roznamcha at No. 1627. The Roznamcha report of Din Daya was entered at No. 1628 at 7-30 P.M. while the Roznamcha Report of Kallu was entered at 7-45 P.M. at No. 1624, which is not possible. The Roznamcha report No. 1624. was prior to Roznamcha Report No. 1627 and 1628. The time of Roznamcha Report No. 1624 is 7-45 P. M. as such the time of Roznamcha Reports 1627 and 1628 can not be prior to 7-45 P.M. They should have been entered after 7-45 P.M. But, according to Dr. Vyas and according to Roznamcha Report (Ex. P. 21), the information was given at 6-40 P.M. at the police station. When Roznamcha Report No. 1627 (Ex. P. 21) was entered at 6-40 P. M., how the Roznamch Report No. 1624 could to entered at 7-45 P.M. All these discrepancies in time have not been explained by the prosecution, and it creates doubt in the correctness of the entries of the reports. So, the argument of Mr. Gupta has some force. 14. If we read the statement of Motilal (PW 3) and Din Dayal (PW 2) we find that the report was lodged after consultation. This report was not lodged immediately. Din Dayal (PW 2) is the brother of deceased Bansilal and Jamnalal. When he came to the field, he found both the brothers lying injured. Jamnalal had already expired while Bansilal was in senses. After seeing the condition of his brothers, it was natural that Din Dayal should have rushed to the police station to lodge the report but according to his statement instead of going to the police station he went to the house of Motilal who is his relative. He narrated the entire incident to Motilal and asked Motilal to accompany him. After seeing the condition of his brothers, it was natural that Din Dayal should have rushed to the police station to lodge the report but according to his statement instead of going to the police station he went to the house of Motilal who is his relative. He narrated the entire incident to Motilal and asked Motilal to accompany him. Motilal (PW 3) told him that he is to go for nature call and he (Din Dayal) should proceed to the hospital and he will come there. This statement is not believable. Din Dayal brother of the deceased instead of taking his brothers to the hospital or to the Police Station went to Motilal first to inform him about this incident, which appears to be an unnatural act. It was his duty to take both the injured to the hospital for treatment, Bansilal could be saved, but on the contrary he went to Motilal, and the conduct of Motilal is that he did not accompany Din Dayal but told him that he will come after attending the call of nature. This shows that the matter was consulted between Din Dayal and Motilal and later on a written report (Ex. P. 2) was submitted by Din Dayal at the hospital to the S. H. O., Baran. When Din Dayal was coming to the hospital he was informed that Bansilal had also died and he came to the hospital and submitted report (Ex. P. 2) at 7 P. M. At 6-40 P. M. Dr. Vyas had informed the police-station that the dead bodies had been brought to the hospital. The S.H.O. Kisturchand alongwith other police officials came to the hospital from the police station and he left the police station after 6-40 P. M. He must have taken some time to reach the hospital. By the time the S.H.O. arrived at the hospital, Din Dayal also arrived there and submitted the report (Ex. P. 2), which is a detailed report. How and where he got this report written has not been explained by the prosecution. This shows, that when Din Dayal came to the hospital he came with the written report (Ex. P. 2). He had come from the house of Motilal. It means that this report (Ex. P. 2), which is a detailed report. How and where he got this report written has not been explained by the prosecution. This shows, that when Din Dayal came to the hospital he came with the written report (Ex. P. 2). He had come from the house of Motilal. It means that this report (Ex. P. 2) was got written at the house of Motilal, which was submitted to the S.H.O. at 7 P.M. on his arrival to the hospital. Thus, the report Ex. P. 2 is well considered and was prepared after consultation with Motilal. From this discussion, we find that the report Ex. P. 2 was not submitted at 7 P. M. as mentioned in the end on this report. The F.I.R. Ex. P. 22 was not prepared at the time as mentioned therein. It gives the indication that both these reports are anti-dated and anti-time. This creates a suspicion in the correctness of the prosecution story. It is not disputed that Motilal (PW 3) is related to the deceased and Din Dayal (PW2) It is not disputed that Kishan is the son of Motilal (PW 3). It is also not disputed that there is enmity between Kallu, Kishanlal and Motilal. It is also on the record that Kallu, is the brother of accused Radhey Shyam. As alleged by Kallu, it is clear from Ex. D. 3 that he was given sword blow by Kishan and others. Previously also, a quarrel took place between Kallu and Kishan. Naturally there was enmity between these families. So, on account of enmity as argued by Mr. Gupta learned counsel for the appellant, the name of Radhey Shyam was entered in the report Ex. P. 2 on consultation with Motilal and he has been falsely implicated in this incident. This argument has great substance and we agree that there is some doubt in the correctness of the prosecutio story. 15. Another argument on behalf of the appellants is, that the FIR. Ex, P. 22 was written at 7-30 P. M. on 29-10-79, but this report was sent to the Magistrate concerned on 31-10-72 at 10-45 AM. Thus, there is a delay in sending the report which creates doubt in the correctness of the report, and it indicates that this report was prepared later on. 16. We have perused the report Ex. P. 22 dated 29-10-79. Thus, there is a delay in sending the report which creates doubt in the correctness of the report, and it indicates that this report was prepared later on. 16. We have perused the report Ex. P. 22 dated 29-10-79. It was written on the basis of Roznamcha Report No. 1628. The time of recording this report is 7-30 P. M. There is no proof on the record that this report was received by the Munsiff & Judicial Magistrate on 31-10-79, but there is an endorsement on Ex. P. 22 which shows that it was received in his office on 31-10-79 at 10-45 AM. It is not disputed by the learned P. P. that this endorsement is correct. He also admits that the report was received by the Magistrate at 10-45 AM. on 31-10-79. The report was lodged on 29-10-79 in the evening which should have reached the Magistrate concerned on 30-10-79, which was a working day. The police station and the court of the Magistrate are situated at one place, but the report was received by the magistrate on 31-10-79. In Ishwar Singh v. State of U. P. ( AIR 1976 SC 2423 ) it has been observed as under:- "The extra-ordinary delay in a sending the FIR is circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishment and set up a distorted version of the occurrence." In Maru Danal Auguusti v. State of Kerala ( AIR 1980 SC 638 ) their lordships have observed as under:- "According to the allegation made in the FIR the attack on deceased was a sudden and short one and was not likely to have been noticed by any body unless he was actually present there. The most serious infirmity which appeared in the case is that although the FIR. was lodged on the mid night of 23/24-6-1971, it was to the Sub-Magistrate and received by him at 6-30 AM. on the 25th of June, 1971, that is to say, there was a delay of as many as 29 hours in the receipt of FIR by the Sub-Magistrate. was lodged on the mid night of 23/24-6-1971, it was to the Sub-Magistrate and received by him at 6-30 AM. on the 25th of June, 1971, that is to say, there was a delay of as many as 29 hours in the receipt of FIR by the Sub-Magistrate. The Investigating Officer being questioned on this matter does not appear to have given any explanation whatsoever for this delay." While considering this aspect along with other circumstances, their Lordships have observed that the Sessions Judge was fully justified in entertaining a serious doubt about the truth of the prosecution case. In the result, the appeal kwas allowed and the appellant was acquitted.The case of Chandrabhan v. State of Rajasthan (1978 RCC 340) is a Division Bench decision of this Court. In this case the FIR was received by the Magistrate after 3 days and no explanation was given for this delay. It was observed by this Court: "There is nothing to indicate that Ex. P. 6 which is claimed to be the first information report in this case, reached any court, but we find an endorsement dated October 28, 1974 on it. However, even if that endorsement is construed to be the endorsement made by the magistrate, there is no explanation why the first information report of the was made 3 days after the occurrence. The extra ordinary delay in sending the FIR. is a circumstance which provides legitimate basis for suspecting that the FIR. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvement and embellishment and set up distorted version of the occurrence." The case Imjl and Imia v. State of Rajasthan (1960 RCC 231) is also a decision of the Division Bench of this Court. In this case, while dealing with the FIR and its inordinate delay in sending the report to the magistrate, it has been observed as under:- "The importance of the FIR. cannot be under-estimated, but it is the first version coming to the knowledge of the police and setting its machinery to motion. It is for that reason that it has been provided under Section 157, Cr. PC that the FIR should be sent forth with to the concerned magistrate." 17. In the present case, the FIR. cannot be under-estimated, but it is the first version coming to the knowledge of the police and setting its machinery to motion. It is for that reason that it has been provided under Section 157, Cr. PC that the FIR should be sent forth with to the concerned magistrate." 17. In the present case, the FIR. was written on 29-10-79 at 7-30 P. M. and it was received in the office of the magistrate concerned on 31-10-79 at 10-45 AM. There is an endorsement by the Magistrate concerned on this FIR. This endorsement has not been disputed by the learned P. P. Thus there is delay of about 39 hours in sending the FIR to the concerned magistrate. From the endorsement it seems that this FIR. was sent to the concerned magistrate through Chotelal FC. No. 1862. The delay in sending this FIR should have been explained by the prosecution. This could be explained by examining Chotelal FC, The learned P. P. during the argument pointed out that this FIR was despatched on 30-10-79 from the police station. No time has been mentioned as to when it was despatched. When the FIR was despatched on 30-10-79, why it was not submitted to the concerned magistrate on that very day. The police station and the court of the concerned magistrate are at the same place. It could have been submitted immediately on 30-10-79 after its despatch. Then another aspect on the file is that the statement of PW 1 Gordhan was recorded under Section 164, Cr. PC. on 30-10-79 by the magistrate. For recording his statement, he was produced by the police before the magistrate. Kuljeet Singh SHO. PS., Baran (PW 18) in his cross-examination has admitted that the statement of Gordhan u/s 164, Cr. PC. was recorded on 30-10-79. He has also admitted that the Court is at a distance of 1 Km. from the police station. When the SHO. was present on 30-10-79 in the court of the magistrate concerned, why the FIR. was not submitted on that day by the SHO. or constable Chotelal. No explanation has been given by the prosecution to this question. This creates doubt in the correctness of the prosecution story. 18. The F. I. R. should have been submitted forthwith without any delay. was present on 30-10-79 in the court of the magistrate concerned, why the FIR. was not submitted on that day by the SHO. or constable Chotelal. No explanation has been given by the prosecution to this question. This creates doubt in the correctness of the prosecution story. 18. The F. I. R. should have been submitted forthwith without any delay. The delay in submitting the F. I. R. after 39 hours gives the impression that the F.I.R, was lodged after consultation amongst themselves and there was sufficient time for the prosecution to introduce improvements or set up a distorted version of the occurrence. It gives the legitimate basis for suspicion that the F. I. R. was recorded much later than the stated date and hour. Therefore, the delay in sending the F. I. R. to the magistrate concerned creates a doubt in the genuineness and correctness of the prosecution story. 19. The delay in sending the F. I. R. to the concerned magistrate also provides a legitimate basis for considering the argument of the learned counsel for the appellant, that it was recorded much later than the stated time, date and hour in order to introduce improvements and embellishments and set up a distorted version of the occurrence. Hence, this delay also creates about the fairness of investigation in this case. 20. Learned counsel for the appellant Radhey Shyam has argued that Gordhanlal (P. W. 1) is the only eye witness in this case. He is a very material witness of the prosecution, but he was examined u/s 161, Cr. P. C. not immediately after the occurrence, but on 30-10-79. In the report (Ex. P. 2) Din Dayal has stated that Gordhan was present at the field when he came back from the hospital after getting injection and pills and Gordhan informed him about this incident. So, it was the only eye witness who could throw light on this incident. According to Gordhan Lal (PW. 1) when the dead bodies were lying in the hospital, he was also present there. Ex. P. 2 report was handed over by Din Dayal to the S. H. O. where Gordhan Lal was also present. The report was sent to the police station for registration and I after registration the S.H.O. went to the site on the same night of the incident. Ex. P. 2 report was handed over by Din Dayal to the S. H. O. where Gordhan Lal was also present. The report was sent to the police station for registration and I after registration the S.H.O. went to the site on the same night of the incident. Gordhan Lal in his cross-examination also stated that he returned from the hospital to his house in the village at 9. P. M. and on that very day at 10 P. M. the S. H. O. met him in the village. The S. H. O. could have examined Gordhanlal and could have recorded his statement u/s 161, Cr. P. C. then and there when he was in the village at 10. P. M. Apart from this, the S. H. O. prepared site plan on 30-10-79, which is Ex. P. 7. This site plan was not prepared at the instance of Gordhanlal. He was not even present when the site plan was prepared. He could have been called by the S. H. O. for verification from him as to at what place this occurrence took place. Din Dayal was not present when Jamna Lal and Bansilal were inflicted injuries. So, Gordhan lal was the proper person to guide the S.H.O, in preparing site plan (Ex. P. 7). This shows that Gordhanlal was actually not an eye-witness but he was later on made are eye witness to support the prosecution case.In Wahid v. The State of Rajasthan (1981 RCC. 274) which is a decision of Division Bench of this Court, it has been observed as under:- "The sole eye witness was present when the police arrived on the scene of occurrence just after the incident. He did not disclose to the police anything as to how the murder was committed. He was examined by the police on 18-10-77 after two days of the incident. No explanation coming on record as to why he could not be examined either on 16th or 17th specially when he lived in the close of the police station where the case was registered. This further throws doubt on the veracity of this witness and lends support to the submission made by the learned defence counsel that he is a put up witness". This further throws doubt on the veracity of this witness and lends support to the submission made by the learned defence counsel that he is a put up witness". In Ganesh Bhawan Patel v. The State of Maharashtra ( AIR 1979 SC 135 ) , it has been observed as under:- "Delay of a few hours, in recording the statements of eyewitnesses may not be, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses be introduced. Thus under the. facts and circumstances of the case delay in recording the statements of material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses". 21. In the present case, the incident took place on 29-10-79, and in the evening at 7 P. M. the witness Gordhan Lal was present in the hospital when the report was submitted to the S. H. O. Thereafter, Gordhanlal returned to the village at 9 P.M. and the S. H. O. also arrived in the village at 10 P. M. where he met Gordhanlal. The S. H. O. could have examined him u/s 161, Cr. P. C. at that time and should not have waited for recording his statement on the next day. Therefore, the delay in examining him by the investigator creates doubt in the credibility of this witness. 22. We have also gone through the statement of Gordhanlal (PW. 1). He has stated that he was at his field and Jamnalal was on the well and Bansilal was working in the field. Three persons came on a motor-cycle and he could identify Radhey Shyam only, Tamnalal was inflicted knife blow by one of those three persons. Then Bansilal came and all the three persons inflicted knife blow to him. 1). He has stated that he was at his field and Jamnalal was on the well and Bansilal was working in the field. Three persons came on a motor-cycle and he could identify Radhey Shyam only, Tamnalal was inflicted knife blow by one of those three persons. Then Bansilal came and all the three persons inflicted knife blow to him. This witness Gordhanlal was seeing the incident but he could not say as to who inflicted knife blow to Jamnalal and who inflicted knife blow to Bansilal. A very vague statement has been given by this witness that three persons came and they inflicted knife blows to Jamnalal and Bansilal. He knew Radhey Shyam very well and he could certainly say that Radhey Shyam had inflicted knife blow to Jamnalal or Bansilal. But he has given a vague and general statement which is not believable. 23. Gordhanlal (PW 1) has also stated that he asked Din Dayal to go to the village and bring a cart for taking them to the hospital. But, Din Dayal has not stated so. Apart from this witness, the prosecution has examined Ramesh (PW 4), who has stated that he was working on his field at 5 P.M. and the fields of Jamnalal and Bansilal are adjacent to his field. Three persons came on a motor cycle and they gave knife blow to Jamnalal. Bansi Lal came to rescue him and he was also given knife blow. Then all the three persons ran away towards Gajendrapuria and he could not identify any of them. This witness has not been declared hostile. He has not stated that at that time Gordhanlal (PW 1) was also in his field. So, Ramesh (PW 4) disproves the presence of Gordhanlal (PW 1). There is no reason to disbelieve Ramesh (PW 4). So, the statement of Gordhanlal (PW 1) that he was the eye-witness is not reliable and trustworthy. According to Ramesh (PW 4) Chhitar was also working with him in the field, but the prosecution has not examined him. 24. Din Dayal (PW 2) has stated that he came from the hospital and saw his brothers Jamnalal and Bansilal lying on the ground smeared with blood. Jamna Lal had expired and Bansilal was alive. Bansilal had told him that Radhey Shyam and two others inflicted knife blows to him and Jamnalal. 24. Din Dayal (PW 2) has stated that he came from the hospital and saw his brothers Jamnalal and Bansilal lying on the ground smeared with blood. Jamna Lal had expired and Bansilal was alive. Bansilal had told him that Radhey Shyam and two others inflicted knife blows to him and Jamnalal. He has also stated that Jamnalal and Bansilal were injured with knife by Radhey Shyam and his two associates. So, on this dying declaration, the prosecution has laid much stress. In this respect the statement of Gordhanlal (PW 1) has also been perused. He has not ' stated that when Din Dayal came to the field, he also told him that Radhey Shyam and his two companion inflicted knife blows to Jamnalal and Bansilal. Therefore, the statement of Din Dayal is not corroborated by Gordhanlal. There was a suggestion to Gordhanlal that after scorpion bite to Din Dayal he accompanied him to the hospital, but he denied this suggestion, and as such the fact narrated above go to show that Gordhanlal was not present when the actual incident took place. Had he been present at the field, Ramesh (PW 4) would have spoken about his presence. Therefore, as discussed above, Gordhanlal has been set up as an eye witness and this is the reason that he was not examined u/s 161, Cr. P.C. by the Investigator on 29-10-79. 25. Another aspect to disbelieve Gordhanlal (PW 1) is, that according to him Jamnalal was given knife blows at a distance of 10 paces from the well and he fell down at that very spot. Bansilal who came to his rescue was also inflicted injuries and obviously he was injured at that very spot. So, both Bansilal and Jamnalal were injured at a distance of 10 paces from the well where Jamnalal was working. But the site map falsifies this fact. According to the site map Ex. P.7., well has been shown at place A. Place C is the spot where Bansilal was lying smeared with blood. Place D is the spot where Jamnalal was lying dead. The place where Bansilal was lying as shown in the map is 78 ft. from the well, and the place where Jamnalal was lying is 86 ft. from the well. The Investigating Officer found blood on the earth at two places C and D, as shown in the map. Place D is the spot where Jamnalal was lying dead. The place where Bansilal was lying as shown in the map is 78 ft. from the well, and the place where Jamnalal was lying is 86 ft. from the well. The Investigating Officer found blood on the earth at two places C and D, as shown in the map. He measured and mentioned that place C is at a distance of 78 ft. and' place D at a distance of 86 ft. from the well where Jamnalal was working. If both Jamnalal and Bansilal were given knife blows as stated by Gordhanlal (PW 1), they would have been lying at a distance of 10 paces from the well. But this is not the position and it shows that Gordhan Lal is eye witness, because he has not seen the infliction of knife blows. He has been shown standing at place F in the map Ex. P. 7, which is at a distance of 300 ft. from place C. Gordhanlal (PW 1) has also stated that he did not come to the spot on account of fear and witnessed the incident while sitting in his crop. Sometimes he used to sit and sometimes he used to stand up. According to him the whole incident took place within two minutes. During this short period it was impossible for him to witness the incident and recognise Radhey Shyam accused. Therefore, we find that this Gordhan Lal is not at all a reliable witness and the learned Addl. Sessions Judge has erred in placing reliance on his testimony. 26. Mr. A. K. Sharma learned counsel for Narain Singh accused has argued that the entire case depends upon his identification. He was not named in the report (Ex. P. 2). He was identified only by Gordhanlal (PW 1). The argument of . Mr. Sharma is that the identification parade was not held according to law. Firstly he was shown to the witness, and secondly he was mixed with other persons during identification of Purshottam accused. It was also argued that identification parade of Purshottam accused was held first in which Narain Singh appellant was one of the mixed persons. He has argued this on the basis that the learned Magistrate did not mention the time of conducting identification parades of Narain Singh and purshottam. Mr. It was also argued that identification parade of Purshottam accused was held first in which Narain Singh appellant was one of the mixed persons. He has argued this on the basis that the learned Magistrate did not mention the time of conducting identification parades of Narain Singh and purshottam. Mr. Sharma also argued that the learned Magistrate has not mentioned in the memo of identification the names of persons mixed with the appellant and Gordhanlal did not give any particulars of Narain Singh accused on the basis of which he came to identify him. Therefore, such identification should not be taken as the basis of conviction of the accused.In Hazari v. The State of Rajasthan (1979 RCC 48) , Hon'ble Siddhu J. has observed as under:- "The learned Magistrate has not mentioned the names and addresses etc. of the persons who participated in the test identification and among whom the appellant was mixed up for the purpose. This would show how the proceedings of test identification were." In Sulekha v. State of Rajasthan (1980 RCC 381) which is a decision of the Division Bench of this Court, it has been observed as under;- The accused appellant was arrested on 25th of Nov., 1977. He was kept in police custody for a number of days before he was sent to Judicial Lock-up on 3-12-77. The possibility of the appellant having been seen by the witnesses during this long interval cannot be ruled out." 27. In the present case, the accused was arrested on 11.3.80. He was sent to Judicial custody on 15.3.80, and identification parade was held on 22.3.80.. This inordinate delay creates a doubt and these is possibility of the accused being shown to the witness Gordhanlal during this period, which cannot be ruled out.In Vakil Singh and others v. The State of Bihar (1981 SC 1392) , their Lordships observed as under:- "In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the whom they have alleged to have identified in the dacoity, nor the witnesses gave any identification marks, viz., structure of the accused or whether they were fat or thin or of a fair colour or of black colour. In the absence of such description it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded". 28. In the present case Gordhanlal (PW. 1) has not given description of Narain Singh appellant in his statement u/s 161, Cr. P. C. or in court statement. He has not mentioned even the slightest mark of identification regarding his structure, clothes which he was wearing, or any other specific mark by which he was going to identify him. So, it is most unsafe to hold Narain Singh appellant guilty on the basis of identification only, which was not conducted according to the provisions of law. The learned Magistrate did not even mention the time of conducting identification parade in the memo. Mentioning of time is very essential and material factor specially when the learned magistrate conducted two identification parades on the same day. 29. In view of our above discussion, we are of the opinion that the learned Sessions Judge has not appreciated the evidence in a proper perspective way and he has arrived at a wrong conclusion. We do not agree with his finding and the conviction of the appellant cannot be maintained. 30. The result is, that the appeal is accepted and the judgment of the learned Addl. Sessions Judge (2), Baran is set aside. The appellants Radhey Shyam and Bachala alias Narain are acquitted of the offence u/s 302 read with S. 34, IPC. Accused Narain Singh is on bail and he need not surrender. His bail bonds are cancelled. The accused-appellant Radhey Shyam is in Jail. He shall be released forthwith, if not enquired in any other case. Fine if deposited by the appellants shall be refunded to them. *******