JUDGMENT M. M. Lal, J. 1. This is an appeal against the judgment and order dated 18-9-1978 passed by Sri Parmatma Saroup, the then Sessions Judge, Budaun, by which he has convicted the appellant under section 302 IPC and has sentenced him to imprisonment for life. 2. Satya Pal Sharma appellant ami Nand Ram alias Nandu were residents of the same village Gidhol. Both of them used to commit heinous crimes together. Three years prior to this incident, the appellant and his father hired Nandram to commit murder of one person belonging to Bilsi, which was ultimately committed by him. At that time the appellant and his father paid some money to Nandram-deceased and with respect to the remaining amount, they promised to pay the same later on. However, when Nandram-deceased used to ask for the said money, the same was not paid to him. About one year prior to this occurrence, Nandram performed the marriage of his daughter and even at that time when he asked for the money from the appellant, the latter did not pay the same, but, on the other hand stated that as he himself was a Brahman and Nandram was a Gadaria, there was no companionship between them. Nandram deceased felt much aggrieved and at that time he is said to have threatened the appellant that after the marriage of his daughter, either he or the appellant would remain alive. On 9-3-1977 in the after noon Nandram-deceased, along with his brother Raghubir PW 5, went to meet their maternal uncle Kuber PW 3, who was living in hamlet Nagla Man Singh of the same village-Gidhol. They stayed there for some time. In the evening when they left the place of their maternal uncle Kuber PW 3, the latter also came out of his house for some distance to see them off. It is further the case of the prosecution that on the same date at about sun set when all of them had covered a distance of 1-1 1/2 Fg. and came near the tube-well of Maiku Dhimar PW 4 in village-Nagla Man Singh, the said Maiku Dhimar was found sitting there by the side of a fire. Nandram-deceased went there to wish him. and came near the tube-well of Maiku Dhimar PW 4 in village-Nagla Man Singh, the said Maiku Dhimar was found sitting there by the side of a fire. Nandram-deceased went there to wish him. At that time, the appellant, who was also sitting there, got up and fired a. shot at Nandram from a close range, which hit him and he died at the spot. It is said that on seeing the dead body of his brother the condition of Raghubir PW 5, became bad. Kuber PW 3, then sent Maiku Dhimar to the village Gidhol to call the near and dear ones and it was on their arrival that Kuber went to the police station Moosa Jhag, situated at a distance of about four kilometres from the place of occurrence, where he lodged the report of the incident on the same date at 11.30 P.M. 3. In support of its case, prosecution examined three eye-witnesses, namely PW 3 Kuber informant, PW 4 Maiku Dhimar and PW 5 Raghubir. PW 1 Ganga Ram Head Moharrir had recorded the written report of the incident and had registered the case. PW 2 Head Constable Dhani Ram is a formal police witness, who had taken the dead body of Nandram to the mortuary for post mortem examination. 4. The post mortem examination! of the dead body was conducted by PW 6 Dr. Virendra Prasad Kulshrestha m 10-3-1977 at 3.00 P.M. He had found the following ante-mortem injuries on the dead body : 1. Gun shot wound of entry 6 cm. x 6 cm. x cavity deep on the front of chest slightly towards right side 3 cm. below from the supra sternal notch and 6 cms. above and inner to right side nipple at 2 O'clock position with blackening and tattooing around the wound in an area of 7 cms. x 7 cms. 2. Fracture of 2nd and 3rd ribs of right side medial ends. 3. Fracture of upper 1/3rd part of sternum nose on right side. On internal examination, the doctor found the brain and membrances to be congested. There was fracture of the right 2nd and 3rd ribs medial. Pleura was ruptured and blood was present in the cavity. Right lung was lacerated at various places. Stomach and bladder were empty. 3. Fracture of upper 1/3rd part of sternum nose on right side. On internal examination, the doctor found the brain and membrances to be congested. There was fracture of the right 2nd and 3rd ribs medial. Pleura was ruptured and blood was present in the cavity. Right lung was lacerated at various places. Stomach and bladder were empty. Forty seven small lead pellets and one cork piece were recovered from right side chest cavity and the same were sealed and handed over to the Head Constable Dhani Ram PW 2, along with the clothes of the deceased. Aocording to the doctor, the death of Nandram had occurred due to shock and haemorrhage about one day before. 5. The investigation of this case was made by PW 7 Siddhi Singh Kushwaha. He had reached at the place of occurrence on 10-3-1977 at about 2.00 A.M. to find the dead body lying there. He took the dead body in possession and in the morning prepared the panchayatnama etc. thereof. He had sent the dead body for post-mortem examination. The Investigating Officer had found a blood stained towel, cap, shoes and ash. He had taken the same, as also the blood stained and plain earth, in possession. He had inspected the place of occurrence and prepared a site-plan thereof. 6. The appellant in his statement recorded under Section 313 CrPC denied the case of the prosecution. He further stated that there were strained relations between him and one Onkar, who had got him falsely implicated in this case. In defence, the appellant examined DW 1 Ganga Pal Singh, Lekhpal who deposed that in the village record, there was no mention of village Man Singh Nagla. It may be stated at this; place that the learned counsel for the appellant, during the course of his argument, frankly conceded that there was nothing for the appellant to rely on the evidence on DW 1 Ganga Pal Singh. 7. The learned Sessions Judge has believed the case set up and the evidence produced by the prosecution! and has recorded the conviction and sentence of the appellant as aforesaid. Aggrieved by the same, the appellant has filed this appeal. 8. We have heard the learned counsel for the appellant and the State and have perused the record carefully. Pw 3 Kuber-informant is the maternal uncle of Nandram-deceased. He is a resident of hamlet-Nagla Man Singh of Village-Gidhol. and has recorded the conviction and sentence of the appellant as aforesaid. Aggrieved by the same, the appellant has filed this appeal. 8. We have heard the learned counsel for the appellant and the State and have perused the record carefully. Pw 3 Kuber-informant is the maternal uncle of Nandram-deceased. He is a resident of hamlet-Nagla Man Singh of Village-Gidhol. The said place is situated at a distance of 1-1/2 miles from the village-Gidhol, to which place Nandram-deceased belonged. Pw 3 Rubber has deposed that both Nandram- deceased and his brother-Raghubir Pw 7 had come together to meet him on Holi the fateful day, in the afternoon. Both of them had stayed with Ruber till the evening, Holi is a festival of colour and feast. In the year 1977, Holi had fallen on 6-3-1977. It is customary that after the festival of Holi, people visit the places of their near and dear ones to meet and greet them and on said day they are entertained by the host. 9. The learned counsel for the appellant has urged before us that had it been a fact that Nandram-deceased, accompanied by his brother, had gone to meet his maternal uncle Ruber at the time of Holi, then his stomach at the time of post mortem examination would! not have been found empty. It may be observed from the post mortem examination report that at the time of the post mortem examination of the dead body, the stomach was found empty. It is, therefore, difficult to believe Ruben PW 3 that Nandram and his brother Raghubir PW 5 had accompanied to his place on the date of the incident in the after noon and stayed with him for some time, whereafter he had accompanied them to the place of occurrence. 10. The learned counsel for the State has drawn our attention to the evidence of PW 3 Ruber and PW 5 Raghubir where they have stated that although they were asked to eat some thing but they had declined to do so on the ground that they had already taken meal, and on the, basis of the same, has tried to urge that when Nandram had not eaten anything at the place of Kuber-informant, there was no question of anything being found in bis stomach at the time of the post mortem examination. In our opinion, the said contention has no merit. In our opinion, the said contention has no merit. Dr V. P. Kulshrestha PW 6 has stated in his evidence that stomach would become empty 6-8 hours after taking the meals. The fact that the stomach of Nandram deceased was found empty, shows that be had taken meals, if any, at 6-8 hours prior to the incident. If Nandram deceased had not taken any meal 6-8 hours prior to the incident, then in the normal course he would have taken meal at the place of his maternal uncle, specially when, the meal were offered to him at that place. It may also be noted that PW 5 Raghubir has admitted in his evidence that he had not taken any meal after 8-00 A.M. on that day. We are of opinion that when it was the festival of Holi, then, in the normal course Nandram would have eaten something at the place of his maternal uncle Kuber PW 31, if he had visited his house, and the fact that the stomach of dead body of Nandram was empty, shows that Nandram deceased had not visited the house of Kuber PW 3. PW 3 Kuber is thus a got up witness and has come forward to depose in favour of the prosecution only on account of his relationship with the deceased. The learned counsel for the appellant has further urged before us that when both brothers, i.e. Nandram deceased and Raghubir PW 5 were together and had left the house of Kuber informant together, there was no reason for Kuber PW 3 to accompany them and to come out of the village and that the prosecution has shown the same only with a view to make Kuber PW 3 the witness of this incident. It has already been observed that this incident took place at a distance of 1-1 1/2 furlongs away from the hairnet of Nagla Man Singh, where PW 3 Kuber resides. In our view, Kuber PW 3 is not a natural witness and his evidence does not inspire confidence. 11. Whereas this incident is said to have taken place at about sun set, the First Information Report on the other' hand was lodged by Kuber PW 3 at police-station Musa-Jhag, situated at a distance of about 4 kilometres, at 11.30 P.M. the same day, i.e. after the lapse of about five hours. 12. 11. Whereas this incident is said to have taken place at about sun set, the First Information Report on the other' hand was lodged by Kuber PW 3 at police-station Musa-Jhag, situated at a distance of about 4 kilometres, at 11.30 P.M. the same day, i.e. after the lapse of about five hours. 12. Fir in a criminal case is an extremely vital and valuable piece of evidence for the purposes of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain oral information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the place of occurrence. Delay in lodging the first information report quite often results in embellishment, which is a creature of an after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In our view, in this case when the FIR is belated, it shall be unsafe to base the conviction of the appellant on the evidence of Kuber informant PW 3. The learned counsel for the State has urged before us that the delay in lodging the first information report has been properly explained in this case and for the same he has referred to us the evidence of PW 3 Kuber, who has deposed that because after the aforesaid murder, the condition of Raghubir PW 5 became bad, hence he sent PW 4 Maiku Dhimar to viilage Gidhol to call the relatives of the deceased. We have not been impressed with the said explanation, firstly, because no such explanation has been given in the first information report, and, secondly, because, the said explanation does not inspire confidence. It may be observed that this incident had taken place in the presence of Kuber PW 3, who was maternal uncle of the deceased, PW 5 Raghubir, who was the real brother of the deceased, and PW 4 Maiku Dhimar who was a resident of the same village. It may be observed that this incident had taken place in the presence of Kuber PW 3, who was maternal uncle of the deceased, PW 5 Raghubir, who was the real brother of the deceased, and PW 4 Maiku Dhimar who was a resident of the same village. When this was so, some one could have easily gone to the police station to give an information of the aforesaid incident. As regards Raghubir PW 5, it may be noted that he was a young lad of 25 years and the record shows that after the incident he had not lost his course and this is why after the victim bad been hit with the shot, he, along with Kuber PW 3, had challenged the assailant. We are thus not impressed with the belated explanation either that Raghubir PW 5 had become unwell or that it was on account of the same delay of more than five hours in lodging the first information report, took place. 13. Maiku Dhimar PW 5 has stated in evidence that he was warming himself by the side of fire, when the appellant carrying a gun came and sat by his side. He has further deposed that after some time, Nandram deceased, accompanied by Kuber and Raghubir, came from the side of hamlet-Nagla Man Singh and on seeing him (PW 4 MAIKU Dhimar), Nandram deceased came towards him and wished him, whereupon the appellant got up and fired a shot at Nandram deceased from his gun, from a close range, which hit him and he fell down dead at the spot. 14. The learned counsel for the appellant has argued before us that in the 2nd week of March, i e. on 9-3-1977 it could not have been so cold that PW 4 Maiku Dhimar would have lit the fire and would have been sitting there in order to warm himself. We find merit in the said contention. It may further be proper to observe at this place that the learned counsel for the State, on the other hand, has tried to urge that the Investigating Officer, who inspected the place of occurrence, shortly after the incident, had found ash in an appreciable area at the place of occurrence and the said fact lends support to PW 4 Maiku Dhimar that afire had been lit at the place of occurrence. The learned counsel for the appellant on the other hand has tried to assert that when it is customary for the people to lit fire one day prior to Holi, it was the ash of the said fire which was lying at the place of occurrence. Whatever the position may be, it appears more probable that in the 2nd week of March, 1977 it would not have been so cold that Maiku Dhimar would have been warming himself by the side of any fire and that too even before the sun had set. The learned counsel for the appellants has urged before us that the evidence given by PW 5 Maiku, and in that way by the other witnesses as well, is belied by the medical evidence, because the fire could not have been made from the distance alleged by the said witnesses. There is force in the said argument. It may be observed that PW 4 Maiku Dhimar has stated in his evidence that the shot was fired by the appellant from a distance of 3-4 steps. When he was asked to be more specific, this witness told that the shot was fired from as much distance as the Presiding Officer of the lower court was sitting from him. When the said distance was measured, it came to be 9 1/2 feet. The postmortem examination revealed that the gun shot wound sustained by Nand Ram deceased had blackening and tattooing around the wound in an area of 7 cms. x 7 cms. Dr. V. P. Kulshrestha PW 6 lias stated in his evidence that the aforesaid gun shot wound measuring 6 cms. a 6 cms. x cavity deep would have been caused from a distance of 5-6 inches only. Even if it may be said that the said distance given by the said doctor was too short, we are of the opinion that when there was not much dispersal in this case and also when there was blackening and tattooing it cannot be said that th? shot would have been fired from a distance of 9 1/2 feet, as deposed by Maiku PW 4. Maiku PW 4 is also not an independent witness. He has submitted at the end of his evidence that there was a "marpit" between him and the appellant. shot would have been fired from a distance of 9 1/2 feet, as deposed by Maiku PW 4. Maiku PW 4 is also not an independent witness. He has submitted at the end of his evidence that there was a "marpit" between him and the appellant. Therefore, we are of the opinion that reliance should not have been placed upon Maiku Dhimar PW 4. 15. Raghubir PW 5 is last witness. He is the real brother of the deceased. He stated in bis evidence that he was returning with his brother Nand Ram deceased when this incident took place. In this respect we have already expressed our doubt regarding the fact that the deceased Nand Ram, accompanied by this witness RAGHUBIR PW 5 would have at all gone to the place of his maternal uncle from where he could return. 16. The learned counsel for the appellant has also urged before us that had the appellant been sitting with Maiku Dhimar by the side of fire at the aforesaid time, then the deceased would not have left the "rasta" and gone for a distance of 30 steps to wish Maiku Dhimar. In this respect it may be observed that the prosecution has taken a case that there was enmity between Nand Ram deceased and the appellant, so much so that each one of them was out for taking the life of the other at an opportune time. It is also the case of the prosecution, that the incident took place before sun set, when the visibility was quite good Therefore, we find merit in the aforesaid argument advanced by the learned counsel for the appellant that Nand Ram deceased would not have left the rasta and gone for a distance of 30 steps to wish Maiku Dhimar, if the appellant was sitting by his side. Besides we are of the opinion that it is also quite doubtful that Maiku Dhimar and the appellant would have been sitting together by the side of the fire at the time of the incident, specially when it has come on record that on account of a "marpit" between them, the relations between Maiku Dhimar and the appellant were strained. The oral evidence produced by the prosecution, therefore, does not inspire confidence. The oral evidence produced by the prosecution, therefore, does not inspire confidence. We find merit in the argument advanced by the learned counsel for the appellant that this incident took place in the dark when some one shot dead Nand Ram and it was only on account of enmity and suspicion that the appellant was named in the first information report lodged by Maiku Dhimar. It may not be out of place to state here that Nand Ram deceased was himself a criminal and had committed many heinous crimes and therefore, it was natural for him to have many enemies. The case against the appellant is, therefore, not made out beyond reasonable doubt. 17. Accordingly this appeal is allowed and Satyapal Sharma is held not guilty of the offence under section 302 IPC and is accordingly acquitted thereof. His conviction and sentence under section 302 IPC are set aside. He is on bail. He need not surrender to his bail bonds, which hereby stand discharged. Appeal allowed.