JUDGMENT 1. - The Additional Sessions Judge Baran, has convicted the appellant by his judgment, dated, 3.2.1990 for the offence under section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 2,000/-. In default of payment of fine he has been ordered to undergo rigorous imprisonment for one year. Against this convicton and sentence the appellant has preferred this appeal. 2. The incident out of which this case arises occurred on 30.9.1989 at about 9.00 p.m. in village Nanavata. The deceased Balram and his brother Ram Dayal were going from the village to see Ramleela at village Nanavata and when they were at the Khali of Dhobi Ghat, accused appellant came there and threatened to kill him because he (Balram) had given evidence against him (accused Danmal). Thereafter Danmal gave a Dhariya blow on the head of Balram by which Balram bleeded profusely. The deceased fell down unconscious while the accused ran away with the Dhariya. First, a case under section 307 IPC was registered on the basis of the information lodged by Ram Dayal. Balram was taken first to Atru then to Baran, but was not alive when he reached Baran. The case was converted to section 302 IPC. On postmortem the following injuries were found on the deceased and in the opinion of the doctor cause of death was as under : 1. External injury: Injury over the frontal bone of its middle. 5 Cm. above Globella. Incised wound Evented Edges/Bleeding Profusely 8 cm x 1 cm. x 3/4 cm deep to bone-Grievous by sharp weapon. 2. Internal injury: Fracture of frontal line at its middle causing haemorrhage Sub dural haemotoma. Opinion: Cause of death being the deep Extensive injury over the frontal bone region causing fracture laceration of brain huge haemotime-Compression of the Brain at site-Coma and finally death. 3. The main witness in the case is Ram Dayal DW.2 who is the brother of the deceased and is the author of the first information report Ex. P/1. The written report Ex. P/1 was presented at the Police Station at 1.25 a.m. on 1.10.1987. At that time he was accompanied by his injured brother Balram. In the police proceedings endorsedon the FIR there is no mention of any other person who had accompanied them. However, in the report Ex. P/1. The written report Ex. P/1 was presented at the Police Station at 1.25 a.m. on 1.10.1987. At that time he was accompanied by his injured brother Balram. In the police proceedings endorsedon the FIR there is no mention of any other person who had accompanied them. However, in the report Ex. P/1 it has been stated that while Ram Dayal informant was going to Nanavata alongwith his brothers Balram and Ramprasad, for wathching Ramleela, in the way they met Danmal appellant, who told Balram that he had given evidence against him therefore he would kill him. He had a Dhariya in his hand with the intention of killing Balram, he struck a blow on his head. Ram Dayal and Ram Prasad tried to intervene then Danmal ran away towards his village Banganga. It is mentioned in the report that it was moonlit night and they had clearly seen the accused running with a dhariya. While in the witness box PW.2 Ram Dayal stated that two months prior to the incident there was a quarrel between accused and Gangaram, brother of Ram Dayal. However, he has not been able to state as to in which case the deceased appeared as a witness against the accused or he was cited as a witness. He only said that Balram had given statement against the accused Danmal at the Police Station. Even the existence of this police statement has not been established. 4. PW. 1 Amarchand was keeping a watch over his jawar crop on the fateful night and according to him the accused had a Dhariya and said that he would kill him. Thereafter he gave a Dhariya blow and Balram became unconscious. His presence at the time of occurrence was not shown by Ram Dayal. 5. P.W. 5 Nanda Ram has stated that the accused Danmal deals in opium and two months prior to the incident, the accused was crossing his fields with a potli on his head. When he asked the accused to stop, accused gave him two slaps. In this incident Balram was a witness and because of this enmity Balram was killed. 6. PW. When he asked the accused to stop, accused gave him two slaps. In this incident Balram was a witness and because of this enmity Balram was killed. 6. PW. 6 Ram Prasad claims to be walking along with brothers Ram Dayal and Balram and at that time the accused came there with a Dhariya and said that Balram has given evidence against him and saying this he inflicted a Dhariya blow on the head of Balram. When others shouted as to what he was doing he ran away. They shouted but no one from the neighbourhood came there, as the neighbours had gone to see Ramleela. No one was informed about the incident. 7. PW-7 Shivbhagwan Godara is the Investigating Officer. He has stated that after arrest, the accused gave information under section 27 of the Evidence Act and on the basis of this information one Dhariya was recovered from the house of the accused. This was sent for chemical examination to FSL and was found to be stained with human blood of 'B' Group. He has also not referred to the statement of the deceased which has been recorded against the accused in some other case and on account of which the accused wanted to take revenge. 8. The accused was questioned under Section 313 Cr. P.C. and he has denied his involvement in the incident. According to him he has been falsely implicated on account of enmity. Two witnesses have been examined in defence and according to them there were cases between the parties which were pending in Courts. 9. The learned counsel for the appellant has contended that on the basis of the evidence in the case no case is made out against the accused. First of all basis of the incident is missing because there was no earlier case in which Balram gave evidence against the accused and on account of which accused Danmal wanted to attack Balram. The conduct of the witnesses is also said to be unnatural. No attempt was made to save Balram A vaidhya lives near the place of the incident but no one took him to Vaidhya. The place of occurrence was very near to the house of the accused, and had the persons, who were with Balram shouted there was no reason why a group of persons would not have collected there. No attempt was made to save Balram A vaidhya lives near the place of the incident but no one took him to Vaidhya. The place of occurrence was very near to the house of the accused, and had the persons, who were with Balram shouted there was no reason why a group of persons would not have collected there. Even when PW.2 Ram Dayal brought a bullock cart, he did not inform about the incident to any one. On the basis of the above conduct it has been contended that the actual incident was not witnessed by any one and only as an after- thought an attempt has been made to involve the appellant with whom the other side has enmity. 10. With a view to show that the FIR was not registered at the time which has been mentioned in it, our attention has been drawn to the fact that the FIR which is of 1.10.1987, was delivered to the Magistrate only on 6.10.1987 at 12.30 p.m. by FC Chandra Prakash, after a delay of six days which has not been explained. On looking at the calender, 1st and 2nd October, were holidays, while 4th, October was a Sunday, but still there has to be some explanation for not delivering the FIR within a reasonable time, if not forthwith, as is the requirement. The constable who delivered the FIR has not been examined. As for the recovery of Gandasi the learned counsel for the appellant has contended that this Gadasi was alleged to have been recovered from the house of the accused in which several other persons were also residing. It was not in the exclusive possession of the accused. The recovery memo Ex. P/10 says that accused took the police party to his residential house and handed over the iron Dhariya which was kept in the North Eastern corner of his house. It was not kept in a concealed position. 11. The learned PP has contended that it was in the earlier report made by Gangaram that Balram had given evidence before the Investigating Officer and the Rojnamcha report of the same is Ex. P/18 A. However, this report does not say that Balram was a witness to this incident. The statement of Balram recorded during investigation has also not been placed on record. 12. P/18 A. However, this report does not say that Balram was a witness to this incident. The statement of Balram recorded during investigation has also not been placed on record. 12. Similarly it is also contended by the learned Public Prosecutor that no one would save the real accused and implicate another person falsely. 13. Besides the evidence on which both the parties have commented, there is a report of the Forensic Science Laboratory, according to which the Blood on the clothes of the deceased, blood smeared soil and on the dhariya recovered at the instance of the accused was stained with B Group Human Blood. 14. We have considered the contentions raised on behalf of both the sides. In this case it is apparent that the FIR in this case reached the Magistrate after six days and there is inordinate delay in sending the FIR to the Magistrate. It becomes therefore necessary to scrutinise the evidence cautiously. Generally in cases where the FIR is sent late to the Magistrate inference is that it was not lodged at the time which has been mentioned in it and the delay in lodging the FIR is sometimes due to the fact that there are no witnesses to the incident and the people do not know as to who is assailant. 15. In the present case PW.2 Ram Dayal has claimed to be the witness to the incident, but he did not mention as to who were the other persons who saw the incident and even the villagers did not know about the incident when a bullock cart was arranged for taking Balram to the Hospital/Police Station. The main grievance of the accused on account of which he gave blow to the deceased is said to be that the deceased had given evidence against him. However, this fact has not been established. The prosecution has not been able to give out the particulars of that case and the statement which had been given by the deceased. Whether it was the statement before the Court or the statement before the Police it would have been helpful in establishing the motive alleged by the prosecution. The report Ex. 18 A which is against the accused does not show the presence of the deceased so as to make him a witness to the incident for which that report was lodged on 11.7.1987. The report Ex. 18 A which is against the accused does not show the presence of the deceased so as to make him a witness to the incident for which that report was lodged on 11.7.1987. The oral evidence consists of two brothers of the deceased and the third witness Amarchand was not named in the FIR. It is quite unnatural that the persons who saw the incident did not shout and did not call any one from the village to help them in taking the injured to the Hospital. The evidence in this case which is of real brothers of the deceased appears to be unnatural. There remains the evidence of presence of B Group Blood on the dhariya and the same group blood on the clothes of the deceased for connecting the accused with the crime on the basis of the dhariya. Looking to the evidence about the recovery of the dhariya, the recovery memo Ex. P/10 says that dhariya was recovered at the instance of accused from the North Eastern corner of his residential house. The recovery witness PW. 4 Copal stated that there were three rooms on the ground floor and two rooms on the first floor in the house of the accused and dhariya was not recovered from the three rooms on the ground floor but from the kitchen, which was a fourth room. The accused had entered that room and brought the dhariya. This dhariya was not kept in a concealed place. Even the site plan of the recovery place prepared by the Investigating Officer Ex. P/13 does not give a full description of the house and the place from where the dhariya was recovered. The place was accessible to other family members of the accused. Had it been taken out from some concealed place it could be said that accused had concealed it and he alone knew as to where the dhariya has been kept, but it appears that the dhariya was lying open in the corner of the house and this makes the recovery of the dhariya on the basis of the information given by the accused highly doubtful. 16. In our opinion the evidence in this is not convincing so as to hold that it was the accused who had caused the injury to the deceased on accoung of which he died. 16. In our opinion the evidence in this is not convincing so as to hold that it was the accused who had caused the injury to the deceased on accoung of which he died. For reasons discussed above, we find that the case against the accused has not been proved beyond reasonable doubt and this appeal deserves to be allowed. 17. The appeal is allowed. The conviction and sentence of the appellant is set aside. The accused is in jail, he shall be released forthwith, in case he is not required in any other case.Appeal allowed. *******