JUDGMENT 1. - Since both these appeals arise out of the same judgment, one being represented and the other having been received from jail, passed by learned Sessions Judge, Jaipur District, Jaipur on 29th July, 1989, they are hereby disposed of by this single judgment. The accused-appellant was convicted for offence under S. 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment. 2. Brief facts leading to these appeals are that a written report Ex.P.3 was lodged at police station, Sodala on 2.11.1985 at 11.30 a.m. by one Ram Narain, PW. 6, wherein it was alleged by him that he has a grocery shop (Purchooni) on Plot No. 124. In the morning when he was sitting on his shop at about 7.45 a.m. one person having little dark complexion and wearing black pant, came on a cycle, parked it and stood by the side of the road. After sometime one Barkat Khan, known to him, came towards his shop. As soon as Barkat Khan arrived there this man who was standing there, suddenly inflicted dagger blow on the neck of Barkat Khan. He tried to intervene but that man rode the cycle and ran away. Barkat Khan started bleeding profusely so he went to call the father of Barkat Khan. He (injured) was taken to the hospital by two persons of the locality and his father. He can identify the assailant if he is brought before him. On receipt of this report, a case for offences under Sections 304 and 307 IPC, was registered and investigation commenced. The investigation was handed over to Om Prakash, S.I. PW. 13, who reached Hasanpura and from there went to S.M.S. Hospital, Jaipur. He gave a memo to the Doctor for recording the dying declaration of the injured but according to the Doctor he was not in a position to give dying declaration. He therefore, returned to the place of occurrence and recorded the statements of Ram Narain and one Shanker Lal. He also recovered blood stained earth and prepared the site-plan. The Doctor who medically examined the injured, Barkat Khan, found the following injuries on his person: Incised wound 9 cm x 1 cm x ? deep obliquely placed left side sub mandibula region upto lateral side neck with profuse bleeding. He also recovered blood stained earth and prepared the site-plan. The Doctor who medically examined the injured, Barkat Khan, found the following injuries on his person: Incised wound 9 cm x 1 cm x ? deep obliquely placed left side sub mandibula region upto lateral side neck with profuse bleeding. Margins clean cut regular, well defined as shown in diagram". The injured Barkat Khan died in the hospital at 6.10 p.m. on the same day, i.e., 2.11.1985 and the case was altered into one under S. 302 IPC. The post-mortem of the dead body was got conducted which is Ex.P. 10 by Dr. C.S. Daga, PW. 10, In the opinion of the Doctor the cause of death was shock brought about as a result of severe haemorrhage because of injury No. 2 which was a wound 15 cm long placed obliquely from middle of the chin going towards angle of mandibula.After completing the investigation a charge sheet was submitted against the accused-appellant. The prosecution examined 16 witnesses in support of its case and exhibitted 17 documents. The accused-appellant denied the entire story and stated that the witnesses are giving statements against him as they all belong to one family. He however, did not lead any evidence in his defence. 3. It is contended by learned counsel for the accused-appellant that the author of the F.I.R. and the eye witness PW. 6 has concealed the material facts from the very beginning, though he was very well known to the accused. He has chosen not to name him in the F.I.R. It is submitted that it is fully proved from the statement of PW.1 Islamuddin, PW.2 Abdul Kareem and PW. 3 Liyaquatali that the accused was previously known to Ram Narain. Liyaquatali has gone to the extent of saying that accused and Ram Narain are known to each other since birth. It is submitted that PW. 1 Islamuddin and PW. 2 Abdul Kareem are near relations of the deceased and they are highly interested in the complainant. It is submitted that it is fully borne out from the evidence that they reached the place of occurrence a couple of moments later than main occurrence took place yet none of them took the injured to the hospital or went to the police station to lodge the report. It is submitted that it is fully borne out from the evidence that they reached the place of occurrence a couple of moments later than main occurrence took place yet none of them took the injured to the hospital or went to the police station to lodge the report. It is submitted that the investigation in the case had been unfair and suppressed the F.I.R. lodged by Abdul Kareem at the police station. In fact PW. 1 Islamuddin has also stated that he too had lodged the report, but the reports purported to have been lodged by Islamuddin and Abdul Kareem are not on record. The submission of the learned counsel is that no reliance should have been placed on the statement of Munna Meatwala regarding procuring of a meat cutting knife for the purposes of commission of the crime. It is submitted that none of the witnesses examined by the prosecution had taken the injured to the hospital and it is not known where the injured remained from 7.45 to 10.15 a.m. since he had been medically examined at 10.55 a.m.; why such incordinate delay has taken place between the time he was removed to the hospital and he was medically examined, has not been explained by the prosecution. It is submitted that no motive has been brought forward on record and the genesis of the prosecution story has not been put forward. The submission of the learned counsel is that the entire evidence in the case is such which creates great doubt on the correctness of the prosecution story and the accused is entitled to the benefit of doubt. 4. In support of his case learned counsel has relied on the following cases: Shersingh & ors. The submission of the learned counsel is that the entire evidence in the case is such which creates great doubt on the correctness of the prosecution story and the accused is entitled to the benefit of doubt. 4. In support of his case learned counsel has relied on the following cases: Shersingh & ors. v. State of Rajasthan, 1987 (II) R.L.R. 164 ; Badri v. State of Rajasthan, AIR 1976 SC 660 , Binder Singh v. State of Rajasthan, 1984 R.L.R. 285 , Lal Singh v. The State of Rajasthan, 1980 (5) R.Cr.C. 213 ; Babu Maulana & others v. State of Rajasthan, 1986 RLR page 573 ; Ishwar Singh v. The State of Uttar Pradesh, AIR 1976 S.C. 2423 ; Ramja v. State of Rajasthan 1987 (1) RLR 446 ; Bhemii v. State of Rajasthan, 1987 (12) R.Cr.C. 135 ; Jamuna Chaudhary and others v. State of Bihar, (1974)3 SCC 774 , State v. Manindra Nath Das and others, 1960 Cr.L.J. 338 ; Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh and others, AIR 1977 SC 1753 ; Birbal and others v. State of Rajasthan, 1988 (2) RLR page 144 , Atra @ Atar Singh and another v. State of Rajasthan, 1988 (2) RLR 707 ; and Harish Chander @ Hari v. State, in 1989 (2) Crimes 72 . 5. Learned Public Prosecutor has supported the findings arrived at by the learned trial court and submitted that in the instant case there is overwhelming evidence on record to substantiate the prosecution case. His submission is that besides being the direct evidence of PW. 6 Ram Narain there is evidence of Islamuddin and Abdul Kareem corroborated by the evidence about the recovery of the knife. It is submitted that there is circumstantial evidence also in the case which corroborates the direct testimony. The submission of the learned Public Prosecutor is that the statement of Ram Narain is also corroborated by the medical evidence as well as the post morem reports. It is submitted that soon after the occurrence the investigating officer had come on the spot and the name of the accused was disclosed which clearly go to show that the accused had been named from the very beginning of the case. 6. We have given our earnest consideration to the rival contentions and have perused the entire record and the case law cited before us. 7. 6. We have given our earnest consideration to the rival contentions and have perused the entire record and the case law cited before us. 7. The cases cited by the learned counsel for the appellant are on all points such as delay in lodging the FIR, the fact of FIR which is taken down post starting investigation regarding value attached to the solitary witnesses, value of the identification parade, conduct of the witnesses etc. Without reproducing what has been held in the aforesaid cases, suffice it to say that there is no dispute so far as the position of law is concerned and we are conscious of the same. We have only to see whether the evidence produced by the prosecution is cogent and reliable enough to connect the accused with the crime and for that it will be essential to re-assess the entire evidence afresh in this appeal. The trial court in its judgment has based conviction relying on the evidence of PW. 6 Ram Narain, PW. 1 Islamuddin, PW. 2 Abdul Kareem, recovery of the clothes of the accused, recovery of the knife and the report of the forensic science laboratory. It is, therefore, essential to see whether the aforesaid evidence produced in the case has rightly been appreciated by the trial court. 8. PW. 1 Islamuddin is a labourer engaged in pushing cart. He has stated that on the day of occurrence he was going to meet some of his relations at 7.00 to 7.30 in the morning. He met Heera going on a cycle near Rayon Ki Masjid. He was wearing white shirt and black pant and was going very fast. He therefore, asked him as to why he is running. When he went ahead the witness saw several persons collected and Barkat was lying with an injury on his neck and profusely bleeding. His condition was precarious therefore, he took him to hospital in a tempo. The witness stated that Heera was coming on a cycle from the side where Barkat was lying injured. The crowd collected there was talking that Heera has killed Barkat and ran away. This, according to the witness, was told by the persons on his enquiry that the boy who run away has escaped after inflicting injury on Barkat. He stated that Ram Narain, several ladies and other persons had collected there. Condition of the injured Barkat was serious. The crowd collected there was talking that Heera has killed Barkat and ran away. This, according to the witness, was told by the persons on his enquiry that the boy who run away has escaped after inflicting injury on Barkat. He stated that Ram Narain, several ladies and other persons had collected there. Condition of the injured Barkat was serious. According to him the blood stained clothes of injured were recovered by the police in the hospital. The witness stated on cross examination that he is known to Heera Lal since they are staying in the same locality. He stated that he also knows Ram Narain who was also sought to be arrested by the police. The winess stated that he had attended the funeral of Barkat and had passed through the house of Ram Narain, but he does not know as to whether police was sitting at the residence of Ram Narain. According to him Ram Narain had also attended the burial of Barkat. The witness stated that he neither informed the father of Barkat of the incident nor he informed Phool Mohammad. He does not know as to whether Ram Narain had given the information or not. According to him when he had come several people were offering Namaz. He stated that his satements were recorded in the hospital and further that he was going to his brother-in-law's (Sadu) place in the morning on cycle. He stated that he did not try to apprehend Heeralal. He did not know that Heeralal was coming after injuring Barkat. According to the witness Abdul Kareem had arrived after some time of his reaching the place of occurrence. He was unable to name the witnesses of the locality present on the spot. According to him Ram Narain did not accompany him when he went to lodge the report. He stated that police had taken him for giving report. The witness stated that he arrived at the hospital before the police reached there. The witness stated that he had not accompanied Barkat in the same vehicle but had gone by a separate auto-rikshaw. According to the witness the place where met Heeralal was visible from the place of occurrence. Witness was unable to say as to who was the eye-witness of the occurrence. He also was unable to say as to who had inflicted injury on Barkat because he was not there. According to the witness the place where met Heeralal was visible from the place of occurrence. Witness was unable to say as to who was the eye-witness of the occurrence. He also was unable to say as to who had inflicted injury on Barkat because he was not there. He categorically stated that Ram Narain had not gone to the hospital. He was unable to say that Ram Narain was along with the police. He stated that he reached his home at 2.30 in the day and had gone to the hospital again in the evening. According to him Doctor had stated that Ram Narain was speaking but he was unable to confirm it. He however, admitted that Barkat, Ram Narain and Heeralal are staying in the same locality of Hasanpura. He also stated that all the four are known to each other. The witness stated that he had stayed in the hospital even during the night. He denied the suggestion that he wants to falsely implicate Heeralal in the case. 9. The statement of the witness Islamuddin does not inspire much confidence. Firstly he is a chance witness who has not come with the reasonable explanation as to why he was going early in the morning at 7.00 to 7.30 in the month of November to his brother-in-law's place. Secondly he is not an eye witness as per his own statement. Thirdly he is an interested witness and appears to be the friend of the deceased in as much as he had not only attended the burial but he had also remained in the hospital over-night. He then stated that he had gone to the police to lodge the report and Ram Narain did not accompany him, but there is no report in the police alleged to have been given by Islamuddin. His statement therefore, is not corroborated in this respect. He is neither an eye witness nor had seen the accused in such circumstances which could lead to the occurrence that the accused had participated in the crime. The witness stated that he had seen the accused at a place which was visible from the place where the incident had occurred and several persons had already collected. This story cannot be appreciated. Besides this, neither he had seen the blood marks on the clothes of the accused nor any knife or dagger in his hand. The witness stated that he had seen the accused at a place which was visible from the place where the incident had occurred and several persons had already collected. This story cannot be appreciated. Besides this, neither he had seen the blood marks on the clothes of the accused nor any knife or dagger in his hand. However, one significant fact has come in his statement that he, Ram Narain, Heeralal and Barkat were known to each other since long. 10. PW. 2 Abdul Kareem is the father of the deceased Barkat. According to him Barkat had no enmity with anyone. He is known to Heeralal and Heera Lal had told him that he should ask his son not to misbehave else the result will not be good. He then came home and told his son Barkat that Heeralal was complaining and had warned that the result will not be good. He stated that Ram Narain came to his residence and told him that his son has given a knife blow on which he went running on the spot and Barkat told him that Heera has given him the injury. According to him Barkat was carrying on a shop of bricks and Bajri. He knew Heeralal as his cycle shop is near the shop of Barkat. He stated that the warning had been given by Heeralal only a day prior to the incident. According to him Barkat was seriously injured and had become unconsious. He then went to hire a Tempo but could not get it and the other persons collected there took Barkat to the hospital. Thereafter he also reached there. The witness stated in his cross examination that he is not aware at what time his son used to go out in the morning and what time he had gone on that day also. He stated that there is no watch in his house but when Barkat used to leave the house he used to go after taking meals. According to him there was no dispute between Barkat and Heeralal. On cross examination the witness stated that he had asked his son as to what was the quarrel with Heeralal but had not asked Heeralal about it. The witness stated that he was informed for the first time by Ram Narain about the incident. According to him there was no dispute between Barkat and Heeralal. On cross examination the witness stated that he had asked his son as to what was the quarrel with Heeralal but had not asked Heeralal about it. The witness stated that he was informed for the first time by Ram Narain about the incident. He stated that he had asked Barkat on which Barkat had stated that Heera has given knife blow and said nothing more. According to him he himself did not try to ask anything beyond it. The witness stated that he had not gone to the police. The witness stated that case was registered after they had gone to the hospital and he had got the report lodged. According to the witness when the injured was being treated in the hospital he had gone to the police station to lodge the report. According to him the police had not come to his place for investigation in the case. The witness has admitted that it is not on his asking that Barkat had told him that Heera has given injury. He stated that he had told the police but he does not know why it is not written in his police statement. The witness stated that his son had not told him anything against Heeralal till he died. He denied the fact that Heeralal and his son were close friends. The witness stated that none else had lodged the report in the police except him. According to him he does not know that Ram Narain was also apprehended in the case. He admitted that police was not sitting at the place of Ram Narain when he passed through the house of Ram Narain. He denied the knowledge that there were blood stains on Ram Narain's cloths. He admitted that Ram Narain and Heera were living in the same locality and their houses were at the distance of 10 to 12 houses and that they were known to each other from before. The witness was confronted on various aspects with his police statement. He has resiled from those parts. 11. This witness is father of the deceased. His statement is self contradictory and cannot be relied upon. The learned trial court in our opinion, was wrong in relying on his statement about the oral dying declaration of the deceased. The witness was confronted on various aspects with his police statement. He has resiled from those parts. 11. This witness is father of the deceased. His statement is self contradictory and cannot be relied upon. The learned trial court in our opinion, was wrong in relying on his statement about the oral dying declaration of the deceased. In examination-in-chief though the witness stated that Heeralal has injured Barkat but in cross examination he has clearly admitted that he has not stated so in his police statement. Thus, this important aspect is clearly an improvement of his police statement for which there is no reasonable explanation forthcoming. Besides this, there is no report in the police station alleged to have been lodged by this witness. He has however stated about this while narrating the facts of the case. The FIR in this case has been lodged by Ram Narain PW. 6. One thing clearly borne out from the statement of this witness is, that Heera Lal and Ram Narain were known to each other from before as their houses are nearby. Only 10-12 houses are in between. This witness admittedly came on asking of Ram Narain and surprisingly Ram Narain, though knowing Heera Lal according to this witness, did not mention his name either to this witness or in his report in the police station. We are unable to appreciate the statement of this witness in view of the clear facts that he was firstly not an eye witness. Secondly he has tried to imporve upon his statement, and thirdly, he has resiled from some part of his police statement. Thus, we are left alone so far as ocular evidence is concerned, is that of PW. 6 Ram Narain who is the author of the FIR. According to this witness his house Number is 124 in Kamla Nehru Nagar, Hasanpura where he has his grocery shop also. According to him he was sitting on his shop where dark complexed boy came, parked the cycle outside his shop and stood on one side, at that time Barkat came from towards his house who was known to him as he used to purchase Biri-Cigarette from his shop. According to him he was sitting on his shop where dark complexed boy came, parked the cycle outside his shop and stood on one side, at that time Barkat came from towards his house who was known to him as he used to purchase Biri-Cigarette from his shop. The witness stated that there was no other customer on his shop at that time but when Barkat arrived near his shop at that time the boy who was standing opposite his shop immediately gave a knife blow on the neck of Barkat and ran along with the knife towards Rayon Ki Masjid. He wanted to chase him but he escaped. Thereafter he called the father of Barkat. When he returned there he saw that Barkat was profusely bleeding. Barkat was removed to the hospital by the people and he went to the police station to lodge the report. The witness is also a motbir to various documents prepared. The witness in cross examination stated that he opens the shop at 6.00 or 7.00 in the morning and that there is no other shop nearby. Whichever shops are on the road they open late in the day. The witness stated that he is not known whether Heera Lal is a good cyclist. The witness denied that the accused is his neighbour. He then corrected and stated that he has now learnt that the accused lives half a kilometre away from his house. He has denied that he was known to the accused from before. He also expressed his inability to say as to what was the distance between the house of the deceased and the accused. The witness admitted that he is living in Hasanpura since childhood and Barkat is living in Hasanpura for last four years. The witness stated that Heeralal's father is living in Hasanpura from the very beginning but he does not know Heeralal, though the witness admitted that Heera Lal's father is selling betel. The witness stated that he had seen the knife in the hand of the accused which was inflicted on the neck of Barkat. The witness stated that none other than him had gone to lodge the report. He stated that he lodged the report at police station, Sodala. The witness stated that he had seen the knife in the hand of the accused which was inflicted on the neck of Barkat. The witness stated that none other than him had gone to lodge the report. He stated that he lodged the report at police station, Sodala. The witness denied the suggestion that he and Heeralal used to meet very often prior to the incident but have stopped meeting each other after Assembly Elections. The witness was asked a categorical question that Barkat had lodged a report to the Addl. Superintendent of Police in writing that his son has been killed by Ram Narain, what he has to say ? The witness replied that he does not know. The witness stated that he had not attended the burial of the deceased Barkat. He also denied that he was detained by the police in this case. He also denied the suggestion that he has falsely implicated Heera Lal in this case. According to him it was Barkat's father who had taken Barkat to the hospital and thereafter he went to the police station to lodge the report. According to him Barkat was taken in a three wheeler to the hospital. The witness stated that he had given the report at the police station only and the accused was arrested after 4-5-6 days. The witness stated that he was called for identification parade and he identified the accused in less than second's time and immediately thereafter he came out of the jail. The witness denied the suggestion that he has falsely implicated the accused in this case. The statement of this witness will be commented upon while discussing the other evidence in this case to see the truthfulness of the same. 12. PW. 3 Liyaquatali, who is a witness to the inquest report and is resident of the same locality, has clearly stated that he is known to Heera Lal accused. He, Barkat, Heeralal and Ram Narain are living at a close distance and all of us are known from before. 13. PW. 5 Phool Mohammad has not been relied upon by the trial court itself and in our opinion rightly so. A bare perusal of his statement convinces us that he has not tried to improve the story but has even tried to become an eye-witness. PW. 13. PW. 5 Phool Mohammad has not been relied upon by the trial court itself and in our opinion rightly so. A bare perusal of his statement convinces us that he has not tried to improve the story but has even tried to become an eye-witness. PW. 12 Akbarali who was examined as a motbir has also admitted That Heeralal, Barkat and Ram Narain all the three are neighbours. 14. In face of the aforesaid evidence if the evidence of Ram Narain is tested, then we are convinced that Ram Narain is suppressing the truth. There is overwhelming evidence on record to suggest that Ram Narain, Barkat (deceased) and Heeralal accused are living in the same locality and are known to each other from before, yet he deliberately neither names the accused in the F.I.R. nor has even mentioned that accused is the resident of the same locality or known to him from before at least by face. In fact, it appears to us that he wanted to wrongly chenalise and misguide the police in the investigation of the case by keeping the name of the accused unknown to the police as to whoever he was. The witness has given a statement which is not corroborated either by Islamuddin or Abdul Kareem regarding the deceased being taken to the hospital as well as lodging of the report. We are unable to place any reliance on the statement of this witness also for the purpose that it is very unusual that somebody shall open the shop at 6.00 or 7.00 in the morning when this is a grocery shop and the manner in which he has narrated the incident. More we read the statement more we are convinced that the witness is hiding the truth. 15. We have already come to the conclusion that the aforesaid three witnesses, namely, Islamuddin, Abdul Kareem and Ram Narain are not individually reliable witnesses. Even otherwise the delay in lodging the FIR in the facts and circumstances of this case, is fatal to the prosecution. The incident has taken place at 7.45 am and the distance of the police station from the place of occurrence is 1 km. but the report is lodged at 11.30 am. Even otherwise the delay in lodging the FIR in the facts and circumstances of this case, is fatal to the prosecution. The incident has taken place at 7.45 am and the distance of the police station from the place of occurrence is 1 km. but the report is lodged at 11.30 am. Admittedly in between this period, according to the statement of the witnesses, name of the accused had already come to the knowledge of the witnesses including witness Ram Narain, yet the same is not mentioned in the FIR. Kanhayalal PW. 15 who was S.I. and In-charge of the police station on the day of the occurrence, has admitted that he did not investigate the case qua Ram Narain as he tried to find out the correctness of the F.I.R. lodged by Ram Narain. He stated that he does not remember how many times Ram Narain was called to the police station but he was certainly called. According to this witness the accused used to visit the police station from before also. PW. 16 Hetram is the Station House Officer of the police station. He admitted that this is correct that Heeralal was carrying on a cycle shop but he was not knowing that Ram Narain, Hecralal and Barkat all the three used to live in Hasanpura. He even did not try to find this fact out. The witness admitted that he even did not try to investigate as to whether the author of the report was also living in Hasanpura. This witness in our opinion has not investigated the case in true persepctive. The address of the author of the FIR was written therein which clearly indicated that he is the resident of the same locality and so also from the statement of the witnesses recorded under S. 161 Cr.P.C., there could have been no doubt that Abdul Kareem, Islamuddin, Phool Mohammad and Akbarali are also staying in the same locality. Had he investigated the case he could have easily known the reason of meeting the accused and the deceased at odd hours at 7.00 a.m. near his shop. We are unable to conceive of that nothing might have transpired before the deceased was hit by the accused Heeralal. The story which has been given by the first informant does not give any clue about the genesis of the story. We are unable to conceive of that nothing might have transpired before the deceased was hit by the accused Heeralal. The story which has been given by the first informant does not give any clue about the genesis of the story. Unless there was a pre-arranged meeting at that point of place, it could not have been conceived of that Heera will leave his place at 7.00 in the morning as if he was knowing that Barkat would be arriving at the shop of Ram Narain, PW. 6, at that point of time. It appears that the incident took place in some other manner and Ram Narain is suppressing the truth in as much as he even liked (sic) about his knowing the accused from before. It is unfortunate that a cold blooded murder is going unpunished but we are fully aware of the law laid down by their Lordships of the Supreme Court in catena of cases that the prosecution must adduce unimpeachable evidence to connect the accused with the crime; in a case like the one where neither the witnesses are coming with a true story nor the investigating officer has tried to investigate the case properly, we are unable to place any reliance on the witnesses of the prosecution as well as about the recovery of weapon of offence. More particularly because Hetram in his cross-examination has admitted that he sought the information after the accused had been released on bail. The evidence of recovery of weapon of offence is also not convincing. The accused is thus, entitled to the benefit of doubt. 16. The result of the aforesaid discussion is that the prosecution has failed to bring home the guilt against the accused-appellant beyond reasonable doubt and therefore, he is entitled to the benefit thereof. Both the appeals are allowed and the judgment of the trial court dated 29th July, 1989 is reversed. The conviction and sentence passed against the accused-appellant Heeralal is set aside. He is acquitted of the charge under S. 302 IPC. The accused-appellant is in jail and shall be released forthwith if not required in any other case.Appeals allowed. *******