JUDGMENT : ( 1. ) THE present appellants Dheer Singh and his son bishambhar Singh (along with the third appellant Raghuraj Singh - also a son of appellant Dheer Singh who died during the pendency of this appeal) have come up in appeal against their conviction and sentences passed by the learned Third Additional sessions Judge, Morena, by judgment dated 23-3-1984 in Sessions Trial No. 40/1983. Appellants Dheer Singh and Bishambhar Singh have been convicted and sentenced to suffer life imprisonment under Section 302/34 and section 302, Indian Penal Code, respectively, for the murder of Dataram. They have also been convicted under section 307/34, Indian Penal Code, and sentenced to suffer three years rigorous imprisonment each for attempting to cause the murder of Shriram (PW. 1), Bhagchand (PW. 2), ramswaroop (PW. 4), Chironji (PW. 5) and Angad (PW. 6 ). The sentences are to run concurrently. ( 2. ) THE prosecution produced five eye-witnesses, namely, Shriram (PW. 1), bhagchand (PW. 2), Ramswaroop (PW. 4), Chironji (PW. 5) and Angad (PW. 6), all of whom belong to a closely related family, but none of the independent witnesses, said to be present on the occasion (there were as many as four of them), have been examined, with the prosecution furnishing absolutely no explanation for their non-examination. Bhagchand (PW. 2) is the father, and Chironji (PW. 5) is the brother, of the deceased dataram. Angad (PW. 6)s son is married to the daughter of Bhagchand (PW. 2 ). Angad (PW. 6) is also the maternal uncle of Shriram (PW. 1), and Ramswaroop (PW 4) is a cousin of the former. Thus, very partisan witnesses have been brought forth in support of the prosecution. None of these eye-witnesses have chosen to tell us as to why and for what reason did the incident take place. There has been no bad blood between the parties. Nor any previous quarrel is reported to have taken place between them on any land dispute. ( 3. ) THE prosecution witnesses do not appear to have told the truth about the incident when they narrated the incident in the Court, as the first information report, ext. P-1, by Shriram (PW 1.), and their police case-diary statements, Exts. D-2 to D-5, speak altogether a different story. This variation has come by deliberation and improvement so as to deny to the appellants the right of self-defence. P-1, by Shriram (PW 1.), and their police case-diary statements, Exts. D-2 to D-5, speak altogether a different story. This variation has come by deliberation and improvement so as to deny to the appellants the right of self-defence. The veracity of the first information report (Ext. P-1) has been seriously challenged and is said to be ante-dated. We shall deal with these matters in detail hereafter. ( 4. ) AT village Pachekha within the Police Station Kailaras, agricultural fields of bhagchand (PW 2) and that of the appellant Dheer Singh lie adjacent to each other. According to the prosecution, on 13-11-1982 at about 8 a. m. , the above-named 5 prosecution witnesses had gone to the field of Bhagchand (PW. 2) to plough it with the help of a tractor (which was driven by one Prabhu, who was not examined ). Angad (PW. 6) had gone there, armed with a gun. Shriram (PW. 1) had come all the way from his village Ancholi, about 8-9 miles distant away. It is alleged that the field had been ploughed and the tractor was parked by the road-side. Thereafter, the appellants armed with gun and Farsa (appellant Dheer Singh with a gun and Bishambhar Singh with a farsa) arrived there from the direction of their field and enquired why the boundary of their field has been demolished. It is said that the deceased Dataram and Angad (PW. 6)pleaded to be forgiven for their lapse and tried to assure the appellants that the boundary would be re-erected, but to no avail. The appellant Dheer Singh exhorted the appellant Raghuraj Singh (who has since died) to shoot them dead. The appellants dheer Singh and Raghuraj Singh started firing. All the 5 prosecution witnesses along with the deceased Dataram were injured. Shriram (PW. 1), Bhagchand (PW. 2), ramswaroop (PW. 4) and Chironji (PW. 5) took to their heels and stood aside at a short distance. Angad (PW. 6) and deceased Dataram had fallen to the ground. The appellants dragged the deceased Dataram to their field and there his neck was sliced with a deep cut by appellant Bishambhar Singh with a Farsa. So the story goes that immediately thereafter Shriram (PW. 1) ran to the Police Station Kailaras, and lodged the first information report as per Ext. P-1, which is dated 13-11-1982 and timed at 9. 30 a. m. ( 5. So the story goes that immediately thereafter Shriram (PW. 1) ran to the Police Station Kailaras, and lodged the first information report as per Ext. P-1, which is dated 13-11-1982 and timed at 9. 30 a. m. ( 5. ) WHAT destroys the prosecution case is that the first information report (Ext. P-1) dated 13-11-1982 was not forwarded to the concerned Magistrate "forthwith" as required under section 157 (1), Criminal Procedure Code, 1973. It was kept back and not forwarded for five days, till 18-11-1982. This extraordinary delay coupled with peculiar features of the case which we shall presently note, is fatal for the prosecution. The investigating officer Abhai Singh Kushwah (PW. 8) admits that the first information report was forwarded to the Magistrate after five days on 18-11-1982. He was pointedly asked in the cross-examination the reason for this delay but he proved helpless and could furnish no explanation for it. Forwarding the first information report "forthwith" to a Magistrate is no mere formality. It has the solemn function of keeping the magistrate concerned informed of the investigation of a cognizable offence, to be able to control the investigation and, if necessary, to give directions under Section 159 of the code. Due compliance with this salutary provision denies time and opportunity to the prosecution to make improvements and embellishments in the prosecution case and set up a distorted version of the incident. This is the dictum laid down in Ishwar Singhs case air 1976 SC 2423 ; Marudanals case, AIR 1980 SC 638 ; Gokarans case, AIR 1985 SC 131 , and Narayans case, 1986 C. Cr. J. (MP) 185. ( 6. ) SHRIRAMs testimony that he had gone to the Police Station and lodged report, ext. P-1, is belied by Bhagchand (PW. 2) (para 3 of his deposition) who has stated that shriram (PW. 1) had given report to the Police on the spot by the road side. If the first information report (Ext. P-1) was not ante-dated and had actually been lodged on 13-11-1982 and the appellant Bishambhar Singh had been named therein, then there was no reason to have arrested him only on 4-12-1982 (vide memo, Ext. P-8 ). It has come in the evidence of Dr. Jatav (PW. 7) (para 19 of his deposition) as well as in the testimony of Dr. Garg (DW. P-8 ). It has come in the evidence of Dr. Jatav (PW. 7) (para 19 of his deposition) as well as in the testimony of Dr. Garg (DW. 1) that appellant Bishambhar Singh, with injuries on his person, was brought by the Police to the hospital for examination and treatment on the day the incident is said to have occurred. Even though appellant Bishambhar Singh was available, he was not taken into custody and arrested before 4-12-1982. Investigating officer Abhai Singh kushwah (PW. 8) could not furnish any explanation for it and he falsely stated that the appellant Bishambhar Singh was absconding. As held in Narayans case (supra) and rameshwars case, 1971 CAR 416 (SC), the non-arresting of the accused immediately after the lodging of the first information report wherein he has been named, casts serious doubt on the veracity of the first information report itself and the whole investigation. ( 7. ) LEARNED Government Advocate Shri Govind Singh submitted, relying on gokarans case (supra), that the delayed forwarding of the first information report (Ext. P-1) to the concerned Magistrate is not fatal, if after the receipt of the first information report investigation had started at once and in such circumstances the investigation would not be tainted as partisan and unfair. This contention has little merit. It is stated that the site-plan, Ext. P-2, was prepared on 13-11-1982 in the presence of Prabhu and rabhuvar as per direction of Shriram (PW. 1 ). Prabhu and Raghuvar have not been examined, and Shriram (PW. 1) (in para 2 of his deposition) has flatly denied having gone to the spot with the Police and got prepared any site-plan in his presence. Another document which deserves to be mentioned on the fairness of the investigation, is Ext. P-32, the alleged memo of recovery of Farsa from appellant Bishambhar Singh. This document is written on a full-scap paper. The investigating officer and the panch witnesses have signed at the bottom of the sheet and in the middle of the sheet in between the columns "reasons for seizure" and "description of article," there is left a blank space of about 3-4 inches. No reason has been shown as to why this blank space was left in the middle of the paper. This shows that the signatures of the witnesses were obtained first and then the document was prepared some time afterwards. No reason has been shown as to why this blank space was left in the middle of the paper. This shows that the signatures of the witnesses were obtained first and then the document was prepared some time afterwards. Obviously, it was a forged and fabricated document prepared at the time convenient to the investigating officer. ( 8. ) SHRIRAM (PW 1) has contradicted the first information report (Ex. P-1 ). He has stated in his report that from Bhagchand (PW. 2)s field the deceased Dataram was dragged to the field of the appellants and there his neck was sliced with a deep cut by appellant Bishambhar Singh. But his testimony in the Court (para 2) is that he could not see as to who had given the cut on Datarams neck. The recitals in the first information report about the dragging of the deceased Dataram from the field of Bhagchand (PW. 2)to the appellants field are also proved false by the fact that no abrasions or dragging marks were found on the body of the deceased. ( 9. ) IN the first information report, Ext. P-1, it is very clearly mentioned that the incident had been witnessed by Mulla, Ratiram Dhakad and Ramcharan Dhakad. It has come in the evidence of Ramswaroop (PW. 4) (para 8 of his deposition) that the tractor-driver Prabhu was also present at the time of the incident. But none of these four witnesses, who were independent and disinterested, have been examined and no explanation is forthcoming about their non-examination. In the special circumstances of this case wherein only members of a closely related family have been examined as eye-witnesses, it was all the more incumbent on the prosecution to examine the independent witnesses. Failure of the prosecution in this behalf would more than justify the drawing of an adverse inference against it. The prosecution was not interested in bringing forth the truth before the Court. (Please see "bir Singhs case, 1977 C. A. R. 319 (SC) and Darya Singhs case, AIR 1965 SC 328 ). ( 10. ) IT is proved by the evidenced Shriram (PW. 1) (para 16 of the deposition) that the appellant Bishambhar Singh had gone to the police station after the incident and lodged a report with the police. (Please see "bir Singhs case, 1977 C. A. R. 319 (SC) and Darya Singhs case, AIR 1965 SC 328 ). ( 10. ) IT is proved by the evidenced Shriram (PW. 1) (para 16 of the deposition) that the appellant Bishambhar Singh had gone to the police station after the incident and lodged a report with the police. That appellant Bishambhar Singh had injuries on his person and the Police had taken him to the hospital for examination and treatment is proved by the evidence of Dr. Jatav (PW. 7) (para 19 of the deposition) and that of Dr. Garg (DW. 1) (para 2 of the deposition ). Dr. Garg (DW. 1) had even insisted that he would examine appellant Bishambhar Singh only as a medico-legal case. But as the police was not willing to have him examined as a medico-legal case, he was brought back by the Police from the hospital without treatment and examination. The report lodged by appellant Bishambhar Singh has been suppressed. Not only that. All the five prosecution witnesses have also chosen to suppress in their deposition the injuries on the person of appellant Bishambhar Singh. The prosecution witnesses have not spoken the whole truth about the incident and the prosecution has failed absolutely to offer any explanation as to how injuries were caused to appellant Bishambhar Singh. This is a very serious infirmity in the prosecution case. During the trial, appellant Bishambhar Singh had filed an application on 13-2-1984, at the stage of adducing defence evidence, for his medical examination, but unfortunately, the application was rejected by the trial Judge the same day. This was in clear violation of the mandatory provisions of Section 233 (3)of the Code, and was denial of a fair trial to the appellant. ( 11. ) NOW, we come to a very important and vital aspect of the whole case which has been altogether ignored by the trial Court. In his examination under section 313 of the Code, appellant Bishambhar Singh has explained what had happened. According to him, he was sleeping in the room housing the machinery of his tube-well, which was near the place of occurrence. There was a noise of gun-firing. He came out of his room to see what it was all about. The gunshot pellets struck him and he was injured He went back to the room. According to him, he was sleeping in the room housing the machinery of his tube-well, which was near the place of occurrence. There was a noise of gun-firing. He came out of his room to see what it was all about. The gunshot pellets struck him and he was injured He went back to the room. Hearing the hue and cry, his brother Surendra had come to his rescue and from atop the room his brother Surendra had fired from his 12-bore gun. About 25 to 30 persons had surrounded the room and all of them were armed with guns and other weapons. Deceased Dataram had a 12-bore gun, Angad (PW. 6) had a mouzer gun and he was also firing. Shriram (PW. 1) also had a 12-bore gun and he was also firing. He (appellant Bishambhar Singh) went to the Police station and lodged the report, and thereafter he was taken by the Police to the hospital for medical examination. Investigating Officer Abhai Singh Kushwah (PW. 8) being inimical to him and his family, had him called back from the hospital without being examined. He got the pellets extracted from his body privately. He was illegally detained for 18-20 days. He has still some pellets embedded in his body. ( 12. ) THE above statement of the appellant Bishambhar Singh does raise the plea of self-defence. The law is well settled, as held in Seriyal Udayars case, AIR 1987 SC 1289 , that if there are materials and circumstances appearing on the record which, though not sufficient to establish the right of private defence of the accused, indicated that the incident might have happened in the manner in which it was suggested by the accused, then the case of the prosecution cannot be said to have been proved beyond reasonable doubt and the benefit would go to the accused and he would be entitled to acquittal. A very important circumstance in this respect is mentioned in Ext. D-6 which is in the nature of dying declaration statement of Angad (PW. 6), recorded in the hospital by a doctor on duty, wherein he had admitted that he had fired from his gun. This would go to show that he was an aggressor. A very important circumstance in this respect is mentioned in Ext. D-6 which is in the nature of dying declaration statement of Angad (PW. 6), recorded in the hospital by a doctor on duty, wherein he had admitted that he had fired from his gun. This would go to show that he was an aggressor. Shriram (PW 1) has stated (paras 9 and 10 of the deposition) that a day prior to the incident his party had tried to plough the field, and the boundary of appellant Dheer Singhs field was scrapped. Appellant Dheer Singh had asked them not to do so. On that day, the matter rested there at that. It was as a result of this warning that next day Angad (PW 6) had gone to the field armed with a gun, determined to fight. This accords with what has come in Ext. D/6, adverted to above. ( 13. ) THERE is still another circumstance which supports the statement of the appellant Bishambhar Singh. The evidence of Dr. Jatav (PW. 7) (para 14 of the deposition) is that the pellet-wounds of entrance on the body of deceased Dataram were not rounded and circular but were oval in shape. In all, four pellets were found in the body of the deceased. Dr. Jatav (PW. 7) explained that oval-shaped wounds are caused only when a gun is fired from a higher level towards downward. He further opined that from the shape of the pellete-wounds on the body of the deceased it can safely be said that the gun-shots were fired from a higher level and the deceased was on a lower surface. The shots were fired from a distance of about 40 feet The opinion of Dr. Jatav (PW 7) finds support from what Modis Medical Jurisprudence (1979 Ed. , p. 223) says, which is as follows :- "the wound of entrance in distant shots is usually smaller than the projectile due to the elasticity of the skin and is rounded when the projectile strikes the body at a right angle and oval when it strikes the body obliquely. " ( 14. ) THE above-named five prosecution witnesses have developed the prosecution case so as to deny the right of private defence to the appellants. The case set out in the first information report (Ext. P/1) and their case-diary statements, Exts. " ( 14. ) THE above-named five prosecution witnesses have developed the prosecution case so as to deny the right of private defence to the appellants. The case set out in the first information report (Ext. P/1) and their case-diary statements, Exts. D-2, d-3, D-4 and D-5, was that as soon as the complainant-party had started ploughing the field the appellants arrived there and protested against it. Deliberately resiling from this position, all the five witnesses deposed in the Court that the complainant-party had already ploughed the field, even the tractor had been taken out of the field and parked on the road-side and it was at that stage that the appellants had come and assaulted them. From the earlier version it is clear that as soon as the complainant-party and started ploughing the field, trying to demolish the boundary of appellant Dheer Singhs field, appellants had come and protested against it. Angad (PW. 6) used his gun and fired shot by it. This would give the appellants the right of private defence. Coupled with the change of the version of the case in the Court, the prosecution witnesses have also suppressed the injuries caused to appellant Bishambhar Singh. Under these circumstances, the evidence of the five eye-witnesses is not safe to act upon and is liable to be rejected. ( 15. ) FROM the discussion aforesaid, it is clear that the first information report (Ext. P-1) is ante-dated and has to be legally excluded from the case. The investigation is partisan and is wholly tainted. The prosecution witnesses have not stated the truth and their evidence is liable to be rejected. The injuries on the person of the appellant bishambhar Singh have been suppressed and have not been explained. A fair trial has been denied to the appellants by not affording them an opportunity to adduce defence evidence. The materials and circumstances on record establish the possibility of the exercise of the right of private defence by the appellants. The prosecution failed to bring home the guilt to the appellants and prove its case against them. Both the appellants would have to be acquitted. ( 16. ) IN the result, the appeal is allowed. The conviction and sentences awarded to both the appellants on various counts are set aside and they are acquitted of the charges levelled against them. The prosecution failed to bring home the guilt to the appellants and prove its case against them. Both the appellants would have to be acquitted. ( 16. ) IN the result, the appeal is allowed. The conviction and sentences awarded to both the appellants on various counts are set aside and they are acquitted of the charges levelled against them. They be set at liberty forthwith, if not required in any other case. Appeal allowed.