JUDGMENT (ORAL) M.S. Deshpande J. - This is an appeal by the original accused nos. 1 and 2 against their conviction under Section 302 read with Section 34, Indian Penal Code and the sentence of rigorous imprisonment for life. One Ramesh Marotrao Bhiwagade, an extreme from Nagpur, we staying at Ballarshah with either of his friends lagan or Kishore Ahirwar. At about 4.30 P.M. on 15-10-1985, Ramesh tried to molest lagan's younger daughter Nanda. Later, he entered the house of lagan to take his clothes and both the accused assaulted him, the accused No. 1 Vijaysingh with a stick and the accused no. 2 Ashok with an axe. Upon receiving the blow of Vijaysingh's stick, Ramesh entered one Tiwari's house, but he was driven away by Tiwari's wife, whereupon' he ran towards the garden and was chased by Vijaysingh who hit him with a stick. The accused no. 2 Ashok dealt 4-5 blows with his axe on Ramesh and he died on the spot. One Nandlal made report of the incident to the Police Station at Ballarshah at 3.45 p.m. on that very day. P.S.I. Darwadkar (P.W. 7) visited the scene of the offence which was pointed out by, Nandlal, held an inquest on the dead body and seized from Nandlal the axe (Article 1) under a Seizure Memo. In the post-mortem examination conducted by Dr. Paliwal (P.W. 8). six incised wounds were found on the person of the deceased together with the internal injuries such as depressed fracture with incised wound both on occipital and parietal bone in midline, contusion and laceration on both sides of the brain, stab wound on the right side below clavical. The heart was found to be empty: According to Dr. Paliwal, death was due to haemorrhagic shock due to multiple incised wounds and the injuries were sufficient to cause death in the ordinary course of nature. The clothes of the accused nos. 1 and 2 were also seized and during the course of investigation, no blood stains were found on clothes of either of the accused. The defence of the accused was that they had been falsely implicated. The learned Sessions Judge found that Ramesh met with a homicidal death and the accused nos. 1 and 2 caused his death in furtherance of their common intention and he convicted and sentenced the accused as stated above. 2. The defence of the accused was that they had been falsely implicated. The learned Sessions Judge found that Ramesh met with a homicidal death and the accused nos. 1 and 2 caused his death in furtherance of their common intention and he convicted and sentenced the accused as stated above. 2. The submission of Shri M.R. Daga, the learned counsel for the appellants, was that the conviction was founded on the evidence of Rajprasanna (P.W. 1) and Kishore (P.W. 2) whose statements came to be recorded on 24-10-1985 i.e. about nine days after the incident and in the absence of any corroboration, the conviction could not have been properly based on their account. He also pointed out that in the First Information Report which Naildla1 had filed, he had implicated himself had even the blood-stained axe was produced by Nandlal and not by any of the accused persons. On the other hand, Shri Ahmad, the learned Public Prosecutor, commented the evidence of the two eye-witnesses Rajprasanna (P.W. 1) and Kishore (P.W.2). The story given by Rajprasanna (P.W. 1) is that while Ramesh and Kishore were proceeding by the bridge at about 5 P.M. on the date of the incident, he asked them where they were proceeding and since Ramesh said that he was going for getting his clothes, he also accompanied him. At that time, the accused nos. 1 and 2 were standing on the road along with a small boy, presumably Nandlal. According to Rajprasanna, the accused Nos. 1 and 2 were armed respectively with a stick and on axe and when Ramesh tried to enter the house, Vijaysingh accused no. 1 struck Ramesh with a stick and Ramesh entered Tiwari's house but was driven out by his wife and so he ran towards the garden. His version so far is supported by Kishore (P.W. 2). According to Kishore (P.W. 2), when accused nos. 1 and 2 ran towards him, he fled from the place and did not know what happened thereafter. According to the learned Public Prosecutor, Kishore (P.W. 2) materially corroborates the version given by Rajprasanna (P.W. 1) and there is no reason for not accepting Rajprasanna's account which is adequately corroborated. 3. According to Kishore (P.W. 2), when accused nos. 1 and 2 ran towards him, he fled from the place and did not know what happened thereafter. According to the learned Public Prosecutor, Kishore (P.W. 2) materially corroborates the version given by Rajprasanna (P.W. 1) and there is no reason for not accepting Rajprasanna's account which is adequately corroborated. 3. To resume the story further, we have it from Rajprasanna (P.W. 1) that accused No. 1 Vijaysingh went after Ramesh and Ramesh fell down and then again got up and held Vijaysingh's stick and at that time the accused no. 2 Ashok gave a blow with an axe to Ramesh and it landed on Ramesh's head. The accused no. 2 Ashok gave four or five blows with an axe to Ramesh. Rajprasanna states that he then ran away out of fear and Kishore (P.W. 2) had already run away. He identified the axe (Article 1) as the one being with accused no. 2 Ashok, but he was contradicted in his cross-examination by the statement which he had made before the police that the blood-stained axe was with Nandlal. It is apparent from the account given by the two witnesses that they do not ascribe any act to Nandlal. In fact, the evidence of the Investigating Officer. P.S.I. Darwadkar (P.W. 7) shows that it was Nandlal who had come to the Police Station with the axe and the blade of the axe was, at that time, stained with blood and he therefore, seized the axe (Article 1) under Seizure Memo (Exhibit 10). It was Nandlal again who had pointed out the spot where Ramesh's dead body lay. Though he stated that the accused no. 1 Vijaysingh had given information leading to the recovery of the stick (Article 7), it is apparent that this stick was not identified as the one which was used at the time of the incident and there were no blood stains on it The recovery of the stick, therefore, if any, will not tend to incriminate the accused no. 1 Vijaysihgh. As we have pointed out, there were no blood stains on clothes of either of the accused. Thus, there is no corroboration for the account given by Rajprasanna (P.W. 1) and Kishore (P.W. 2) regarding the complicity of the accused nos. 1 and 2. 1 Vijaysihgh. As we have pointed out, there were no blood stains on clothes of either of the accused. Thus, there is no corroboration for the account given by Rajprasanna (P.W. 1) and Kishore (P.W. 2) regarding the complicity of the accused nos. 1 and 2. What is more, Rajprasanna's account regarding the axe is belied by the recovery of the blood-stained axe from Nandlal. It appears from the charge-sheet which was filed in this case that Nandlal was shown as accused no. 3, but since he was a child he was being proceeded against in the juvenile Court. 4. The learned Public Prosecutor invited us to refer to the contents of the First Information Report (Exhibit 24) which was recorded by P.S.I. Darwadkar at 17-45 Hrs. on 15-10-1985. Since Nandlal was not examined to bear out the truth of the allegations in the First Information Report and since the only use to which the First Information Report could have been put to was either for corroboration or contradiction if Nandlal were to have been examined, neither the prosecution nor the defence can urge that the First Information Report should be read in evidence. However, the fact remains that it was upon Nandlal's first information that the offence came to be registered and it was he who produced the axe (Article 1) on which there were blood stains. As already pointed out, the circumstances brought out from the evidence of P.S.I. Darwadkar show that the truthfulness of the version given by Rajprasanna (P.W. 1) is considerably shaken and Kishore (P.W. 2) does not lend any support to his version regarding the actual assault 5. It is in this context that the delay in recording the statements of P.W. 1 Rajprasanna and P.W. 2 Kishore has to be considered. The learned Sessions Judge has observed in his judgment that these two witnesses may not have been available to the prosecution, but there is no foundation laid in the evidence of P.S.I. Darwadkar to justify these observations. The learned Sessions Judge has observed in his judgment that these two witnesses may not have been available to the prosecution, but there is no foundation laid in the evidence of P.S.I. Darwadkar to justify these observations. It was for the Investigating Officer to show why the two eye-witnesses who should have been examined with all promptitude were not examined soon after the First Information Report was received and the delay in recording their statements would only show that it was deliberate and was due to the shape which the Investigating Officer wanted to give to the prosecution version and direct the prosecution on that basis. The accused no. 1 Vijaysingh was arrested on 16-10-1985, but there is no indication anywhere in the evidence-as to what prompted the Investigating Officer to arrest him even before the statements of the eye-witnesses were available. The accused no. 2 Ashok was arrested on 27-10-1985 i.e. nearly three days after the statements of the two eye-witnesses were recorded. Considering all these factors, we have considerable hesitation in relying upon the evidence of Rajprasanna (P.W. 1) and Kishore (P.W. 2). It would be indeed hazardous to rely on their account having regard to the factors which we have enumerated above. Disagreeing, therefore, with the learned Sessions Judge, we find that there was no reliable evidence to bring home the guilt to the appellants. 6. In the result, we allow the appeal, set aside the conviction of the appellants under Section 302 read with Section 34, Indian Penal Code and while acquitting them, direct that they be forthwith set at liberty, if not required for any other offence. -Appeal allowed