JUDGMENT 1. - Ramkumar appellant has preferred this appeal against his conviction and the sentences passed under section 302, IPC and S. 27 of the Indian Arms Act, by the Sessions Judge, Jaipur District, Jaipur. He has been sentenced to imprisonment for life and a fine of Rs. 1.000/-, and in default of payment of fine, to further undergo 3 months' rigorous imprisonment for offence under section 02, IPC; and to 1 year's rigorous imprisonment and a fine of Rs. 50/-. and in default of payment of fine, to further undergo 1 month's rigorous imprisonment, for offence under section 27 of the Indian Arms Act. Both the sentence of imprisonment, have, however, been ordered by the learned Sessions Judge, to run concurrently. 2. One Dalu lodged a written-report at PS Viratnagar, on 6th Mar., 84, at about 11.45 AM; to the effect that on 5th Mar., 84, in the evening, at Tan Chhitoli Manna (deceased) who was his real brother, and living with the accused-appellant who was his `Saala' (brother-in-law), with his family, for the last 5-6 months, in village Kishanpura, and was working as Chowkidar' (watchman), was murdered by the accused-appellant by gun-shot, due to some quarrel on the point of hunting, and that, his dead body was lying at the field on one Narain Dhabai, and on that morning, Nanda, Umrao and Moharpal Gujar were called and they had seen the dead body of Manna (deceased). It was also mentioned in the said report that the accused-appellant had confessed his mistake in presence of those persons and other villagers, who asked him to lodge the report. 3. On the basis of this report, a case under section 302, IPC, was registered. The accused was arrested, and on his information and at his instance, one gun was recovered. The dead body of Manna was sent for post-mortem examination, and the report of the said examination was submitted by Dr. Omprakash, who conducted the post-mortem on the dead body, which is Ex. P. 4, According to the said doctor, the cause of the death was due to excessive blood-loss as a result of the injury to anch of aorta. During the examination of the dead body, the doctor recovered therefrom one metallic piece, which was scaled by the doctor and sent to chemical examiner tor analysis. P. 4, According to the said doctor, the cause of the death was due to excessive blood-loss as a result of the injury to anch of aorta. During the examination of the dead body, the doctor recovered therefrom one metallic piece, which was scaled by the doctor and sent to chemical examiner tor analysis. The recovered articles were also sent to forensic science laboratory for examination, and the reports in this regard, are Exs P. 18 & 19. 4. After completing the usual investigation, the police submitted a challan against the accused-appellant and one Nanu, under section 302, IPC & Sections 27 and 30 of the Indian Arms Act- Both the accused pleaded not guilty and claimed trial. After recording the statements of the prosecution witnesses and hearing both the learned counsel for the parties, the trial court found that no case was established against Nanu accused, and so, he was acquitted of the charges. The trial court, however, found the accused-appellant guilty and sentenced him as mentioned above. 5. The learned counsel for the appellant argued that the alleged eye-witnesses in this case, namely, Ramsahai and Bodia, PWS 2 and 3 respectively, are real brothers of the deceased, and that, both these witnesses are chance-witnesses, and their conduct reveals that they both are most unreliable and ' untrustworthy witnesses. It was also argued that there was delay in lodging the FIR, and so also in sending the same to the concerned Magistrate. Another argument was that there is difference in the statements of the witnesses about the scribe of the report (Ex. P. 1), and that, as such, there is doubt in the genuineness of the FIR which, according to the learned counsel, was prepared subsequently. Thus, according to him, the entire prosecution case is a false and fabricated one. 6. To the contrary, the learned Public Prosecutor supported the judgment of the trial court and argued that there is the confession of the accused-appellant of the crime being committed by him, in presence of the witnesses, and this extra-judicial confession is fully corroborated by the evidence on record, and the prosecution has successfully proved its case against the accused-appellant. 7. We have considered the arguments of both the parties also minutely scrutinised the entire evidence on the record. The report (Ex P. 1) was submitted by Dalu PW 1, who was real brother of the deceased. 7. We have considered the arguments of both the parties also minutely scrutinised the entire evidence on the record. The report (Ex P. 1) was submitted by Dalu PW 1, who was real brother of the deceased. But, he is not an eye witness in this case. So his statement is not a material one so far as the guilt of the accused is concerned, but it is important because, he was the author of the report (Ex.P. I). In his statement, he his stated that he was at his village Pastapur, where bis brother Ramsahai had come and informed him that appellant Ramkumar had murdered Manna, after a dispute having taken place in between them regarding watching field, and that, Ramsahai had also informed him that after committing the murder, the dead body of Manna had been thrown in the Nullah drain). According to his statement on this information, he came to spot, where so many persons had collected, and Ramkumar accused and his father were also present there. The villagers took them to spot and narrated the incident. Accused Ramkumar admitted and stated that he had murdered Manna by firing his gun. He (Dalu) then went to police station and submitted a report, which is Ex P. 1. He has also stated in his statement, about the extrajudicial confession made by the accused. 8. Now, the extra-judicial confession is believable one or not, is the main point to be decided in this case. Much stress was laid by the learned Public Prosecutor on this extra-judicial confession With regard to this confession, the statements of Dalu PW 1, Baluram PW6, Phula PW7 and Moharpal PW 12 are important ones. 9. In the report (Ex.P.l), Dalu mentioned that in presence of the villagers Ramkumar accused had stated that mistake had been committed by him, and according to the (Ex.P.l) his words were, "Gujaron ke saamne, Ramkumar ne apni galti manee thee." In his court-statemant, Dalu PW1 has stated that Ramkumar had admitted that he had murdered Manna by firing gun-shot. 10. Baluram PW6 has stated that when Ramkumar was asked to tell the truth after being assured that the matter would be finalised there only, he confessed the crime and told, `Hamare haath se khatm ho gaya hai". 11. 10. Baluram PW6 has stated that when Ramkumar was asked to tell the truth after being assured that the matter would be finalised there only, he confessed the crime and told, `Hamare haath se khatm ho gaya hai". 11. Phoola PW7 has stated that when the villagers had asked Ramkumar to tell the truth as to who had murdered Manna and he was assured that if he told the truth, he would be saved. He had said, ``Manna ke goli mere haath se lag gayee hai". 12. Moharpal PW12 has stated that Ramkumar also had arrived at the place where the dead body of Manna was lying and that, on asking, he had replied, "yeh vakya mere se ban gaya." 13. We thus find that all these witnesses, in whose presence, the accused is alleged to have made the confessional statement, have given different versions. Had it been a fact that the accused had confessed the crime in presence of the villagers, and the above witnesses, there could be no question of arising any difference in the words as spoken out by the accused-appellant. But, here, we see that each witness has given a different version as having been told by the accused. This shows that the story of extra-judicial confession made by the accused, is a latter-development and a concocted story, Another aspect to disbelieve the confessional statement is that PW 2 Ramsahai and Bodia PW 3 who were the real brothers of the deceased and were also present alongwith the other villagers when the alleged confession was made by the accused, have not uttered a singal word about the said confessional statement having been made by the accused-appellant. Yet another aspect is that in the report (Ex.P.l), it has been mentioned that Nanda, Umrao and Moharpal Gujar also had arrived at the spot. Nanda has been examined and he has been declared hostile having not supported the story of the extra-judicial confession. Umrao who has also been examined as PW 11, has stated in his statement that Ramkumar had told, `Ban gayee so ban gayee-woh mar gaya", and according to this witness except these words, Ramkumar had not uttered any other word. 14. Thus, we are of the opinion that the story of the the extrajudicial confession is a falsely cooked up story, and so, we do not believe it. 15. 14. Thus, we are of the opinion that the story of the the extrajudicial confession is a falsely cooked up story, and so, we do not believe it. 15. The next argument was with regard to the report (Ex.P.l) It was argued that this report is a false one. 16. Dalu PW1, in his statement has stated that he had submitted the report (Ex.P.l) at the police station which bears his thumb-impression. In his cross-examination he has said that the report was scribed by Moharpal, and that the same was written at the spot where he had put his thumb-impression, and further that the thumb-impression was affixed with the ink pen. It means that pen-ink was applied to the thumb and then thumb-impression of Dalu was taken on the report. If we look at the report (Ex P. 1), we find that the thumb-impression of Dalu is not by pen-ink but by stamp-pad ink. This shows that this is not the report which was scribed at the spot and on which Dalu P.W. 1 had put his thumb-impression with the pen-ink, but, this report was subsequently prepared and taken by the police. So, it creates doubt. 17. Phoola PW7 has also stated that Moharpal had scribed the report and then he was sent to police station to submit it. In his cross-examination, this witness has said that the report was written at the spot where the dead body was lying. 18. Ramsahai PW2 has also said in his cross-examination that the report (Ex. P.l) was written by Moharpal at the spot, and then, Dalu had taken it to police station. 19. Bodiya PW3, in his main statement, has stated that Umrao Gujar I had written the report and Dalu had taken it to police station. 20. Moharpal PW 12 has not stated that he had written the report (Ex. P. 1) Similarly, Umro PW 11 also has not stated that he had scribed the report (Ex. P. 1). Both these witnesses are silent on the point as to who had scribed the report (Ex.P.l) Thus, there is difference in the statements of the witnesses about the scribing of the report (Ex.P.l). The statement of Dalu PW 1 also creates doubt in the genuineness of the report (Ex. P.1). We are, therefore, in agreement of the learned counsel for the appellant, in this I respect. 21. The statement of Dalu PW 1 also creates doubt in the genuineness of the report (Ex. P.1). We are, therefore, in agreement of the learned counsel for the appellant, in this I respect. 21. Then, the incident had taken place on 5th Mar., 84, and the report was submitted at police station on 6th Mar., 84 at about 11.45 AM this delay in lodging the report has not been explained by the prosecution. The only argument advanced by the learned Public Prosecutor is that as the brother of the informant was murdered, the relatives were busy in the said affair, and hence, none could go to police station to report the matter. This argument is merely i for the sake of argument. 22. Ramsahai PW 2 and Bodiya PW 3 who were the real brothers of I deceased Manna, and in whose presence he was murdered by gun-shot, could have easily gone to police station. Ramsahai had gone to another village to informing Dalu about the incident, but, he did not go to police station, even after informing Dalu and when Dalu arrived at the spot where the dead body was lying, Ramsahai and Bodiya could go to lodge a report. The villagers had also collected there so, anyone of them could easily go to police station for reporting the matter. No doubt, Manna was murdered, and so, his relatives must be feeling sad, but, it does not mean/appeal that nobody would go to police station to report the matter. It indicates that the report (Ex.P.l) was subsequently prepared after due deliberation and consideration, and the circumstances as stated above, creates serious doubt in the genuineness of the report (Ex.P.l). 23. In Mst. Resbma v. State of Rajasthan (1978 RCC 330) , it has been observed by a division bench of this High Court that in that case there was considerable delay in lodging the complaint to the police and no satisfactory explanation had been offered FIR is an important piece of evidence if there is delay, the possibility of concoction, deliberation and chances of implicating an innocent person, cannot be ruled out. 24. The next argument was that the FIR was sent to the concerned Magistrate in this case, with delay. 24. The next argument was that the FIR was sent to the concerned Magistrate in this case, with delay. According to the learned counsel, according to the provisions of the Code of Criminal Procedure, an information-report is to be sent forthwith to the concerned Magistrate, competent to take cognizance of the offence, and in the case of delay in sending the report to the Magistrate, explanation has to be tendered. 25. In the present case, the report was submitted to the police on 6th Mar.,`84 at about 11.45 AM, and the same was received by the Magistrate concerned on 7th Mar.,'84 at about 3.15 PM. According to the endorsement on the FIR (Ex P.l-A), it was dispatched on 7th Mar., 84 and was sent through a messenger. When the report was lodged on 6th Mar., `84, why was it dispatched to the concerned Magistrate on 7th Mar., 84, This delay has not been explained by the prosecution. 26. In Ishwarsingh v. State of U.P., ( AIR 1976 SC 2423 ) , their Lordships of the Supreme Court have observed, that extraordinary delay in sending the FIR, is a circumstance which provides a basis for suspecting that the FIR was recorded much later than the stated date which affords sufficient time to the prosecution to introduce improvements embellishments and set up a distorted version of the occurrence. 27. In Marudamal Augusty v. State of Kerala, ( AIR 1980 SC 638 ) , it has been observed by their Lordships of the Supreme Court that the most serious infirmity which appeared in that case was that although the FIR was lodged on the midnight of 23rd/24th June, 71, it was dispatched to the Sub-Magistrate and received by him at 5-30 AM on 25th June, `71, that is to say that there was a delay of as many as 29 hours in the receipt of the FIR by the Sub-Magistrate. 28. In both the cases mentioned above, it has been observed that non-explanation of sending FIR with delay, to the concerned Magistrate, casts serious doubt about the truthfulness of the prosecution case. In the present case, the position is the similar. The prosecution has not explained the delay, and as such, it creates doubt in the truthfulness of the prosecution story as well I was in the evidence of the eye-witnesses. 29. In the present case, the position is the similar. The prosecution has not explained the delay, and as such, it creates doubt in the truthfulness of the prosecution story as well I was in the evidence of the eye-witnesses. 29. Then, the argument was that Ramsahai PW 2 and Bodiya PW 3 who are the real brothers of the deceased, are chance-witnesses and should not be relied upon. This argument has substance. Ramsahai PW 2 and Bodiya PW 3 have stated that they were working as Chowkidars at the fields at Jadu-ka-Baas, and that. Manna (deceased) was working with his brother-in-law and was Chowkidar in Village Kishanpura. Both the Villages Jadu ka-Baas and Kishanpura are at a distance. The statement is that Ramsahai and Bodiya had gone from Jadu-ka-Baas towards Khariya-ka-Nullah, for chasing wild animals and had left Jadu-ka-Baas at about 11 AM and they returned in the evening at about 5.30 O'clock. They saw in the Nullah which was in the way, Ramkumar and Manna fighting with each other. So both these witnesses had witnessed the incident while they were coming back after chasing the wild animals. It was also stated that when they saw both Ramkumar and Manna fighting with each other, they stood up on a Tiba' and watched the fight. At that moment, Ramkumar fired his gun at Manna, which hit on his chest. They have stated that they did not raise any hue and city, nor did they go forward to the rescue of Manna. Their further statement is that Ramkumar then lifted the dead body of Manna, took it to Jhonpri (hut) of Narain Balai and put in inside. Both these witnesses were witnessing all these events, but, they did not try either to rescue Manna or raise an alarm. Their explanation is that on account of fear, they kept silent. This explanation is unbelievable and just to give an explanation, they have stated so It cannot be believed that even after seeing by both the brothers that Ramkumar was fighting with their real-brother Manna havings gun in his hand, they would not go to his rescue. When, Ramkumar lifted the dead body of Manna and was taking it to the hut of Narain Balai, then Ramsahai and Bodiya could well have rushed behind him and caught him at the spot. When, Ramkumar lifted the dead body of Manna and was taking it to the hut of Narain Balai, then Ramsahai and Bodiya could well have rushed behind him and caught him at the spot. But, none of these two witnesses tried to catch Ramkumar, nor did they try to rescue Manna from the clutches of Ramkumar- Apart from this, both these witnesses were examined by the police during the investigation, and their police-statements are Exs. D. 3 & D. 4. They have denied to have given certain portions of those statements. Their statements were recorded under section 164, Cr.P.C. also by the Magistrate, and then, Bodiya PW 3 denied to have given the statement at portions marked A to B in his police-statement (Ex. D. 4). 30. With regard to the statements recorded under section 164, Cr.P.C., it was argued that where statements of witnesses are recorded under this section, their testimony should be read in evidence with great caution. 31. In Balvendra Singh v. State of Rajasthan (1983 RLR 883) , a division bench of this High Court, has observed, that in respect of a witness whose statement has been recorded under section 164, Cr.P.C. the law is well-settled that evidence of such a witness must be approached with caution, because such a witness feels tied to the previous statement given on oath and has but a the-oritical freedom to depart from the earlier version and a prosecution for perjury could be the price for that freedom. 32. Thus, in the present case, the statements of the witnesses recorded under section 164, Cr. P.C. are to be judged with caution. The circumstances prove that Ramsahai PW 2 and Bodiya PW 3 who were not residing at Kishanpura and who had no business to have come towards the side of incident, are certainly chance-witnesses, and such witnesses are not to be relied upon. 33. During investigation, the investigating officer prepared two site-plaos which are Exs. P. 8 & P. 9. In the said site-plans, the place where Ramsahai and Bodiya were standing and wherefrom they were witnessing the occurrence has not been shown. It was necessary for investigating officer to have shown in the site-plan the place from the where the two witnesses had witnessed the alleged occurrence. So, this all creates serious doubt about the presence of these witnesses at the spot, at the time of the occurrence. 34. It was necessary for investigating officer to have shown in the site-plan the place from the where the two witnesses had witnessed the alleged occurrence. So, this all creates serious doubt about the presence of these witnesses at the spot, at the time of the occurrence. 34. In Savia and another v. The State of Rajasthan, (1985 Cr. L.R. (Raj.) 18) , a division bench of this Court, on a similar aspect, has observed that in site-plan (Ex. P. 13) and in the inspection-memo (Ex. P.12) of that case, it was not mentioned as to where the witness was standing when the accident had taken place and from which place he had seen the incident taking place- Hon'ble Judges of the division bench in that case held that was a serious infirmity and could not persuade them to hold that the witness was present near the place of occurrence. 35. In the present case, it has not been mentioned as to at which place Ramsahai PW 2 and Bodiya PW 3 were standing, and wherefrom they had witnessed the incident. This is a serious infirmity in this case which further creates doubt about the presence of these witnesses at the spot at the time of the alleged occurrence. 36. Under these circumstances, we are inclined to hold that both Ramsahai and Bodiya were only chance-witnesses, and their presence at the spot, was doubtful, and so, no reliance can be placed on their testimony. 37. Apart from this, the conduct of both the witnesses, namely, Ramsahai and Bodiya, appears to be abnormal and unnatural they were witnessing that their real-brother was being murdered by the accused and the latter was having a gun in his hand, but, in spite of that, they did not try either to rescue Manna or raise a hue and cry. So, their conduct being abnormal makes them unreliable. The aspect of their fear as stated by them, is without any foundation, nor is it supported by any evidence of act or conduct. All these features of this case indicate infirmities as to the truthfulness of the testimony of the witnesses of the prosecution. 38. So, their conduct being abnormal makes them unreliable. The aspect of their fear as stated by them, is without any foundation, nor is it supported by any evidence of act or conduct. All these features of this case indicate infirmities as to the truthfulness of the testimony of the witnesses of the prosecution. 38. In Chanan Singh v. State of Haryana ( AIR 1971 SC 1554 ) , their Lordships of the Supreme Court have observed that the conduct of the witness in running away from the place of occurrence, even though, he was not chased or threatened by anyone of the assailants, and his not reporting the incident even to the relatives of either of the two deceased person, was treated as abnormal. 39. In the present case, Ramsahai and Bodiya being the real-brothers of Manna (deceased), did not try to rescue him. There is no evidence that they had any fear or their being beaten. None of them went to police station to lodge a report. All these aspects show abnormality in their conduct and create serious infirmity in their truth fullness, and also through considerable doubt about their presence at the spot at the time of the alleged occurrence. 40. It was then argued that the prosecution has failed to prove that the sealed articles were kept in the Malkhana and the seals on them remained intact and were not tampered with. The prosecution has not examined any witness to prove that he was the in-charge of the Malkhana, the sealed-packets were kept in the Malkhana in his custody, and that the seals were intact till the packets were sent to forensic science laboratory for examination. This argument of the learned counsel, has force. 41. In Rajaram v. State of Rajasthan (1985 RCC 342) in which, one of us was a member, it was observed that it is necessary for the prosecution to prove that the recovered articles remained intact till they reached for the identification-parade. If the prosecution fails to prove that the seals remained intact from the date the packets were sealed till they date and time they were brought before the Chairman of the Nyay-Panchayat for identification, it create suspicion. In the present case also, the Malkhana in-charge was not examined; and the prosecution has failed to prove that the sealed-packets remained intact and that the seals thereon were not tampered with. In the present case also, the Malkhana in-charge was not examined; and the prosecution has failed to prove that the sealed-packets remained intact and that the seals thereon were not tampered with. And, in the absence of this proof, serious doubt is created. The packets were sealed on 7th March, 1984, and they were sent to forensic science laboratory on 27th March, 1984. There is no evidence where the sealed-Jackets remained daring this period, and also whether the seals intact or not. Therefore, the reports of the forensic science laboratory, are of no value. 42. According to the prosecution, the accused had fired a gun. But, there is no evidence as to fro n what distance the gun was fired. Ramsahai PW2 and Bodiya PW3, the alleged eye-witnesses have stated that the gun was fired from a distance of 4-5 feet If a gun is fired from such a distance there must be mark of blackening on account the fire on the body. Dr. Omprakash Jain PW9 is silent about the distance from where the gun must have been fired. He I has not stated there was any mark of any blackening on the dead body. The gun was not even sent to ballistic-expert for examination. Only the pellets which were found in the dead body by the doctor during the post-mortem examination and were sealed by him, were sent to forensic science laboratory, the report with regard to the gun seized by the police, is that it was a serviceable firearm. It was also mentioned in the report (Ex P.19) that the gun had been fired sometime before it was received in the laboratory. But, it cannot connect the accused with crime. Actually, the ballistic-expert ought to have been examined. The serologist had forwarded two packets to ballistic division for examination, but there is no report in his connection. As such, the recovery of the gun too has no bearing on this case. 43. In view of our above discussion, we are of the considered opinion that the prosecution has utterly failed to establish its case against the accused-appellant. In our view, the learned Sessions Judge has not been able to appreciate the evidence on record in its right perspective. He has also failed to consider the legal aspect of this case in a proper manner. We are. In our view, the learned Sessions Judge has not been able to appreciate the evidence on record in its right perspective. He has also failed to consider the legal aspect of this case in a proper manner. We are. therefore, not in agreement with the finding recorded by the trial court. The case against the accused-appellant has not been proved, and as such, he is not found guilty of offences under section 302, IPC and S. 27 of the Indian Arms Act. 44. In the result, the appeal is accepted. The accused-appellant, Ramkumar, having not been found guilty of offences under section 302, IPC and S. 27 of the Indian Arms Act, is hereby acquitted of the said charges He is in jail He be released forthwith, if not required in any other case. The judgment of the trial court, is accordingly, set aside.Appeal allowed. *******