JUDGMENT 1. - D.B. Cr. Appeal No. 287/85 is a Representative Appeal while D. B. Cr. Appeal No. 300/85 is Jail Appeal. As both these appeals are against the same judjement, so they are disposed of by this common judjement. The appellants have preferred these appeals against the judjement dated 23-5-1985 passed by the Sessions Judge, Sawai Madhopur Camp Gangapur City convicting the appellants Bhabhuti under Section 302 Indian Penal Code and Chotey under Section 302/34 IPC. Both these appellants have been sentenced to life imprisonment and a fine of Rs. 200/- and in default of payment of fine to undergo two months' R.I. 2. Smt. Bitiya w/o deceased Narain Singh lodged a report on 15th November, 1983 at 5 p.m. at Police Station Mandrayal. According to this report Narain Singh was working in the agricultural field situated in village Tokeypura and was giving water in the field from the well. At that time Mst. Bitiya, her daughter Rambeti and her mother-in-law Anar Bai were also working there. At that time the accused persons were also there and they told Narain Singh not to give water as they will give water to their field first. Shri Narain Singh denied and the accused-persons entered in the field and tried to take Narain Singh by force. Narain Singh tried to run away from there and when he was running, he was caught in the field of the accused Bhabhuti where Bhabhuti caused injuries by spade on his head and accused Chotya caused injuries by Lathis. Narain Singh died at the spot. When Mst. Bitiya and others tried to rescue Narain Singh, they were also threatened by the accused-persons. After beating, the accused-persons ran away towards village. They went near the dead body where number of persons of the village had also arrived. On this report the Police registered a case under Section 302/34 Indian Penal Code and started investigation. 3. Laxman Prasad PW 5, who was posted as Head Constable at the Police Station recorded the report lodged by Smt. Bitiya and that report is Ex. D 1. The Head Constable also entered the FIR in the register which is Ex. P 16. The SHO Ramhet Singh PW 4 during investigation inspected the site and prepared site-plan Ex. P 1. The inquest report Ex. P 2 was also prepared. D 1. The Head Constable also entered the FIR in the register which is Ex. P 16. The SHO Ramhet Singh PW 4 during investigation inspected the site and prepared site-plan Ex. P 1. The inquest report Ex. P 2 was also prepared. The accused-persons were arrested and on the information given by them the Investigating Officer recovered a spade and a Lathi. The accused Chotey also received injuries so his medical examination was also done. Dr. Puspendra Nath Sharma PW 6 conducted the post mortem on the dead body of Narain Singh. The post mortem report is Ex. P 16. According to the doctor's opinion the cause of death is coma and such as a result of severe injuries to the head caused by the sharp weapon. 4. The SHO after completing the investigation submitted challan against the accused-persons under Section 302 & 302/34 IPC. The trial court framed charge against accused Bhabhuti under Section 302, Indian Penal Code and against accused Chotey under Section 302/34, IPC. Both the accused-persons pleaded not guilty and claimed trial. 5. The prosecution has examined 6 witnesses to establish its case. The accused-persons have denied the allegations. They have not examined any defence witness. 6. The learned Sessions Judge after concluding trial and hearing both the learned Counsel found that the prosecution has proved its case and he convicted appellant Bhabhuti under Section 302 Indian Penal Code and appellant Chotey under Section 302/34, Indian Penal Code and sentenced as mentioned above. 7. We have heard the arguments advanced by both the learned Counsel. We have also perused the judjement of the Trial Court and the prosecution evidence as well as the record of this case. 8. In this case Mst. Bitiya PW 1 and Rambeti PW 2 have been examined as eye-witnesses. No other witness has been produced by the prosecution. Mst. Anar Bai, the mother-in-law of Smt. Bitiya PW 1 i.e. mother of Narain Singh (deceased) who was also present at the time of occurrence as alleged by Mst. Bitiya, has not been examined by the prosecution. So the entire case rests on the statement of Smt. Bitiya PW 1 and Bambeti PW 2. 9. The dispute took place in the field which according to Mst. Bitiya belongs to her husband and he was in its possession. Bitiya, has not been examined by the prosecution. So the entire case rests on the statement of Smt. Bitiya PW 1 and Bambeti PW 2. 9. The dispute took place in the field which according to Mst. Bitiya belongs to her husband and he was in its possession. This is important aspect to see as to who was in possession of the land when the occurrence had taken place. If we see the statements of PW 1 Smt. Bitiya and PW 2 Rambeti, it comes out that this land originally belongs to Gheesiya father of accused Bhabhuti. This land was purchased by Narain Singh from Gheesiya. Smt. Bitiya and Smt. Rambeti have stated so. But this is only an oral statement of these witnesses about purchase of the land from Gheesiya by Narain Singh. The trial Court has believed the oral statement of these two witnesses and held that the land where dispute took place was in possession of Narain Singh. We are of the opinion that this finding of the trial court is incorrect. According to Smt. Bitiya the land was purchased by her husband Narain Singh some four years before but she has not produced any document to this effect. She stated that Gheesiya executed the document when this land was purchased by Narain Singh. Still no document has been produced. Even, according to revenue record the land was in the name of Gheesiya father of accused Bhabhuti and was in his possession. No document has been produced by the prosecution to prove and establish the possession of Narain Singh deceased on this land at the time of incident. Apart from this the statement of SHO Ramhet Singh PW 4 is an important one. He has admitted in the cross examination that the field in which Narain Singh was murdered was in the Khatedari of Gheesiya, the father of accused Bhabhuti. He has also stated that Narain Singh has purchased this land from Gheesiya but no document has been submitted by Mst. Bitiya PW 1. Even there is nothing in Government record to prove the possession of Narain Singh over this land. Thus, it becomes clear that the field where the dead body of Narain Singh was found was in possession of the accused persons and it is also not correct that this land was sold by Gheesiya to Narain Singh. Bitiya PW 1. Even there is nothing in Government record to prove the possession of Narain Singh over this land. Thus, it becomes clear that the field where the dead body of Narain Singh was found was in possession of the accused persons and it is also not correct that this land was sold by Gheesiya to Narain Singh. Therefore, the learned trial Court has committed an error in concluding that Narain Singh was in possession of this land. Now the field where the incident had taken place was not in possession of the deceased Narain Singh. Still he was trying to get possession and wanted to give water in the field. The accused-persons had resisted correctly also because they were in possession and Narain Singh has no right to interfere with their possession. Hence, if anything had happened there is in exercise of right of defence of the property. The accused-persons had right to defend their possession which was being disturbed by Narain Singh deceased & in exercise of that right of defence of property if any injury has been caused then it cannot be held that the accused-persons had intentionally committed murder of Narain Singh. 10. Now we have examined the entire record and gone through the statement of Smt. Bitiya PW 1 and Smt. Ram Beti PW 2. We find that both these witnesses have given false statements regarding purchase of this land and regarding possession over it. When they can tell a lie on this aspect then it is unsafe to believe the testimony of such witnesses. Smt. Bitiya has stated that at the time of occurrence they did not see anybody working in the field nearby. She has stated that after the occurrence leaving her mother-in-law and daughter at the spot she went to village Ghakoda but no male-member was found in the village. It cannot be believed that there would be no male in the village. Then, according to Ex D 1 she, her daughter Ram Beti and her mother-in-law went to Narain Singh who was lying on the ground and where some persons from village also arrived. After leaving those persons she came to the Police Station to lodge the report. So on this point, she tried to give a false statement. She has wrongly stated that when she left the village for Police Station, she did not meet anybody. After leaving those persons she came to the Police Station to lodge the report. So on this point, she tried to give a false statement. She has wrongly stated that when she left the village for Police Station, she did not meet anybody. The villagers had arrived at the spot when she was on the spot. Then she was also confronted with report Ex. D 1. She was also confronted with the Police statement Ex D 2. In the court-statement she has stated tated that Bhabhuti inflicted spade blows to Narain Singh from sharp side but this fact has not been mentioned in the FIR Ex. D 1 and the Police statement Ex. D 2. So after reading the entire statement of Smt. Bitiya, we are of this opinion that she has not stated correctly, therefore, no reliance can be placed on her. 11. Smt. Ram Beti PW 2 has stated that Bhabhuti inflicted 3-4 spade blows to her father from sharp side. Her grand-mother told her mother to go to village and take some male-member as well as to report at the Police Station. Her mother went to village while she and grand-mother stayed at the spot and at that time no person was with them. When her mother reached in the village then some persons came there. Thus her statement is not such as stated by Mst. Bitiya PW 1. They have tried to hide the presence of other persons at the spot. She has also given false statement regarding purchase of the land and possession over this land by her father. In the Police statement she has has not staled that Bhabhuti inflicted spade blow from sharp side. She has also staled that her statement was recorded by the Police on that very day in the evening of the incident. She has also stated that on the day of occurrence the Police arrived in the evening and her mother also accompanied the Police. But this is not correct. SHO Ramhet Singh PW 4 went to the spot on the next day. He has not stated that the Police arrived at the spot in the evening of the day of occurrence. Thus, we find that Smt. Ram Beti also did not give her statement honestly, therefore, her statement is also not reliable. 12. It was argued that Smt. Bitiya lodged the report at the Police Station with delay. He has not stated that the Police arrived at the spot in the evening of the day of occurrence. Thus, we find that Smt. Ram Beti also did not give her statement honestly, therefore, her statement is also not reliable. 12. It was argued that Smt. Bitiya lodged the report at the Police Station with delay. The incident had taken place on 15-11-1983 at 11 a.m. and the report was lodged on the same day at 5 p.m. The Police Station was only 4 miles from the place of occurrence. No explanation has been given by the prosecution about the lodging the report with delay. Why the report was not registered immediately on the arrival of Mst. Bitiya. According to her statement immediately after beating she left the pace and came to the Police Station to lodge the report. A distance of four miles could be covered within an hour or two. It cannot be believed that Mst. Bitiya reached the Police Station at 5 p.m. So there was delay in lodging this report and this delay has not been explained. Non-explanation regarding delay in lodging the FIR creates doubt in the genuineness and correctness of the story and also creates suspicion in the testimony of the witnesses. In Ramji Suriva and Anr. v. State of Maharashtra 1983 AIR SC 810 their Lordships have observed as under: "This extraordinary delay in giving the First Information to the police in the present case which has not been properly explained cannot but be viewed with suspicion." 13. It was also argued that the report Ex. P. 1 was sent to the Magistrate concerned on 17-11-1983. The delay in sending the FIR which should have been sent forthwith to Magistrate creates suspicion. In case of Illam Singh and Ors. v. State of U.P.( AIR 1976 SC 2423 ) , their Lordships have observed as under: "Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the First Information Report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version to the occurrence." 14. The learned Public Prosecutor has argued that there is no delay in reaching the FIR to the Court. The FIR was despatched on 15-11-1983 to the Court through Special Messanger but the same reached the Court on 17-11-1983, so there was no delay in despatching of the First Information Report and he had relied on the case of Mahabir Prasad Akela and Ors. v. State of Bihar 1987 Cr. LJ 545 . We have considered this argument and also gone through the ruling cited by learned Public Prosecutor. With due respect we do not agree with the observation made by Hon'ble Lordships of Patna High Court. According to sec 157 Criminal Procedure Code, it is required that the First Information Report is to be sent forthwith to the Magistrate competent to take cognizance of the offence. Mere despatching the report from the Police Station is not sufficient but it must reach to the concerned Magistrate without delay. It cannot be believed that the FIR which was despatched on 15-11-1983 would reach the concerned Court on 17-11-1983. Therefore, this delay which has not been explained by the prosecution creates suspicion that the report was recorded immediately. 15. It is also strange that the prosecution has produced the FIR but not proved it though it was on the record. Smt. Bitiya PW 1 who had lodged the report Ex. D 1, has been examined in the Court and this FIR should have been proved by her. We fail to understand why this report was not proved and explained in the statement of Mst. Bitiya PW 1. The learned Public Prosecutor argued that Mst Bitiya is an illiterate woman and she had put her thumb-impression on the report, hence it was not proved in her statement. This is no argument. Every informant is not a literate one. We fail to understand why this report was not proved and explained in the statement of Mst. Bitiya PW 1. The learned Public Prosecutor argued that Mst Bitiya is an illiterate woman and she had put her thumb-impression on the report, hence it was not proved in her statement. This is no argument. Every informant is not a literate one. Illiterate person also lodges the reports at Police Station and those reports are proved by them The Head Constable Laxman Prasad PW 5 has stated that he had recorded the FIR which is Ex. P 16. The report Ex. P 16 is the same report. Laxman Prasad PW 5 has only submitted the report but his statement does not prove that this was the same report which was lodged by Mst. Bitiya PW 1. Actually, this report should have been proved by Mst. Bitiya hence, there is no proper proof that the report Ex. D 1 was lodged by Mst. Bitiya PW 1. 16. Apart from this we have seen the original FIR Ex. P 16 According to the Police rules the FIR is prepared in four copies. The first copy is the original one and three copies are carbon copies which are sent to higher authorities as well as one copy is kept at the Police Station. So the original FIR is always sent to the Court concerned. Laxman Prasad PW 5 has stated that the report Ex. P 16 is the original one while Ex. D 1 which was sent to the concerned Magistrate is a copy. We have seen both these FIRs and both the FIRs are original one, Ex. D I is also an original report written in ink or ball pencil and the report Ex. P 16 is also original one written in ink or ball pencil. But none of these two is carbon copy. When we look at Ex. P 16, which is in the record of the Police Station, Mandrawal, we find that in column No. 1 there are overwritings. By seeing Ex. P 16 we find that it was lodged on 15-11-1983 at 11 a.m. but there is over writing which shows that it was written at 5 p m. This over writing has not been explained by the learned Public Prosecutor. So it also creates doubt that Ex. 1 or Ex. By seeing Ex. P 16 we find that it was lodged on 15-11-1983 at 11 a.m. but there is over writing which shows that it was written at 5 p m. This over writing has not been explained by the learned Public Prosecutor. So it also creates doubt that Ex. 1 or Ex. P 16 is the same FIR which was lodged by Mst Bitiya PW 1. It is painful that such things happen at the Police Station specially in murder case. How can one place reliance on the working of the Police Department? 17. The Panchnama Ex. P 2 was also brought to our notice. We find in this document that there are certain entries in different ink. Either these entries are by a carbon or they are by a coloured ball pencil. In the beginning of Ex. P 2 where FIR No. is mentioned, we find that the figure 94 is in different ink while figure 83 is in different ink, Then in column No. 4, two lines have been mentioned: e`rd ds 'kjhj ij ,d deht] ,d cfu;ku ,d /kksrh gSA are in different ink. In Sub-column No. 3 the time 1.30 pm. and sub-column No. 4 and column No. 5 & 6 the time has been mentioned. They are in different ink. Apart from this when we read the inquest report Ex. P 2 in the middle where FIR No is mentioned no FIR No. has been written but simply 83 has been mentioned. If FIR No. 94/83 was in the knowledge of the SHO when this Ex. P 2 was prepared why he did not mention the FIR number in the body. Why there are entries in this inquest report with a different ink. All these entries have not been explained by the prosecution and they create doubt in the investigation of the case. All these circumstances indicate that Smt Bitiya PW 1 & Smt. Rambeti PW 2 were not eye-witnesses, and were not present when this occurrence had taken place and the learned trial Court has committed error in placing reliance on the statement of these two witnesses. 18. It was also argued by the learned Counsel for the appellant that the SHO prepared the site-plan Ex. P 1 and in this site-plan he has not mentioned the place where the witnesses were standing and from where they had witnessed the incident. 18. It was also argued by the learned Counsel for the appellant that the SHO prepared the site-plan Ex. P 1 and in this site-plan he has not mentioned the place where the witnesses were standing and from where they had witnessed the incident. They have placed reliance on Savia and Anr. v. State of Rajasthan 1985 Cr. LR (Raj. 18 . In this case the Divisional Bench of this Court have observed as under: "In the site-plan Ex. P 13 and inspection memo Ex. P 12 it has not been mentioned as to where this witness was standing when the incident took place and from which place he had seen the incident taking place. This is a serious infirmity and prersuades us to hold that the witness was not present near about the place of occurrence." 19. In the present case the SHO has not shown in site-plan Ex. P 1 the place where Mst. Bitiya and Mst. Ram Beti were standing and from which place they had seen this incident. Therefore, this also creates suspicion about the presence of these two witnesses. The learned Public Prosecutor did not reply to this argument at all. 20. Thus in view of our above discussion that there are so many infirmities in this case, so many doubts and suspicions in the correctness and genuineness of the prosecution. The learned Sessions Judge has not appreciated the evidence and the law points properly. We are unable to agree with the learned trial court. 21. As a result, the appeals are accepted. The appellant Bhabhuti is not found guilty under Section 302 Indian Penal Code and appellant Chhote under Section 302/34 IPC. Both the appellants are, therefore, acquitted. The appellants are in jail. They are set at liberty forthwith, if not needed in any other case.Appeals accepted. *******