JUDGMENT 1. The accused-appellant Harphool was tried alongwith one Bansi for the murder of Bhagwan Sahai. The learned Additional Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 67/90 under his judgment dated 3rd March, 1993 convicted the accused appellant Harphool under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment of fine to further suffer three months simple imprisonment. But the learned Additional Sessions Judge acquitted the other accused Bansi. Harphool has preferred this appeal against his conviction and sentence. 2. The case of the prosecution is that Bhagwan Sahai deceased was the son of PW 4 Kaluram. The deceased was the resident of village Barodia, Police Station Viratnagar and the accused-appellant Harphool had given a loan of Rs. 1,000/- for which a demand is said to have been made from deceased Bhagwan Sahai and his father Kaluram PW 4, but the amount was not being paid, despite the demand having been made continuously for a period of a month or two. The case of the prosecution is that on 6th May, 1990, it was Sunday and at about 4 p.m. Bhagwan Sahai went to Harphool accused appellant who is also a resident of village Barodia, to demand Rs. 1,000/- and opposite to the house of the accused-appellant there was some exchange of hot words in between the accused appellant and Bhagwan Sahai deceased. No document was there in respect of alleged loan. Bansi son of Chunaram also arrived there and said to have caught hold of Bhagwan Sahai. At that moment, the accused-appellant is said to have gone to his house and returned with a buttoned knife and stabbed Bhagwan Sahai on the side of the chest. The occurance is said to have been witnessed by PW 4 Kaluram, father of Bhagwan Sahai deceased as well as PW 2 Hanuman also a relative of Choturam PW 6. At that moment, the accused-appellant is said to have gone to his house and returned with a buttoned knife and stabbed Bhagwan Sahai on the side of the chest. The occurance is said to have been witnessed by PW 4 Kaluram, father of Bhagwan Sahai deceased as well as PW 2 Hanuman also a relative of Choturam PW 6. It appears that the deceased Bhagwan Sahai was still injured while taken to the hospital, but it is not known to which hospital where injury No. 1 was stitched he was taken and then perhaps on the advise of the doctor he was taken to the SMS Hospital, Jaipur where he was admitted as an indoor patient and expired on 7th May, 1990 at 9.45 p.m. A report was lodged only on 8th May, 1990 and on the report Ex.P. 4 of Kaluram, a case was registered and investigation was set in motion. 3. The post-mortem was conducted and the accused-appellant was arrested and in his information a 'Rapi' a sharp edged weapon was recovered and seized and sealed. Chaddi, Baniyan and towel were also seized and sealed and they were sent to the Director, Forensic Science Laboratory who examined them and found that each of them were stained with human blood. But the group of blood could not be determined. 4. The accused appellant was tried alongwith one Bansi and as said earlier the accused appellant was convicted and sentenced as aforesaid and Bansi was acquitted. The accused appellant stood on a bare plea of denial as appears from his statement recorded under Section 313 Criminal Procedure Code. before the learned trial court. The accused did not examine any witness in defence. 5. It was contended by the learned counsel for the accused-appellant that there is delay in lodging the First Information Report and the said delay has not been explained. Learned counsel further contended that all the three witnesses namely Hanuman PW 2, Kaluram PW 4 and Choturam PW 6 are partisan and interested witnesses being of the same family and their statements cannot be relied upon, more so when there were independent witnesses available, but they were not examined, more so when there are contradictions on the material particulars at least on the point of weapon whether it was a knife or rapi which admittedly are not same kind of weapon. Learned counsel has not raised and could not raise any dispute so far as factum of death as a result of injuries is concerned and there can be no dispute that the deceased died as a result of Septicemia which had developed as a result of injuries. The question, therefore, is as to whether on the material evidence on record, the case of the prosecution can be relied upon. 6. There is no dispute that the occurance is said to have taken place on 6th May, 1990 and the report of the incident was not lodged till 8th May, 1990. It has come in the evidence of Hanuman PW 2 that he had not lodged any report. Hanuman had not accompanied the injured to the hospital. Police Station Viratnagar is not very far off from the place of incident. Even as per statement of PW 2 Hanuman, Bhagwan Sahai was given blows with knife by Harphool. An inquest report was prepared and he had signed it and at the time he had not professed to be an eye witness. The purpose of inquest report to know what was the weapon, the nature of weapon used and the cause of death. He admits that he did not mention in the report that the accused-appellant had given a blow with knife to Bhagwan Sahai, and further that his statement was recorded after four days of the incident. Even assuming for the present that the report was lodged on 8th May, 1990, what was the reason for examining him on 10th May, 1990. The SHO, who was earlier the IO in the case has not been examined and in the absence of his examination the delay in recording his statement has not been explained. It can be said as slated by Hanuman PW 2 that he was inside the shop when Bhagwan Sahai had come to Harphool to demand for his dues, and there was exchange of hot words for about 15-20 minutes. Bhagwan Sahai was asking the accused appellant to return a sum of Rs. 1,000/- to him. Both were exchanging abuses. He states that he had gone to police station Viratnagar, but had not informed in writing, but it was done so after 15-20 days of the incident and not prior to it. He had not even disclosed about the incident to Sarpanch or anybody also prior to that. 1,000/- to him. Both were exchanging abuses. He states that he had gone to police station Viratnagar, but had not informed in writing, but it was done so after 15-20 days of the incident and not prior to it. He had not even disclosed about the incident to Sarpanch or anybody also prior to that. He admits that while one goes from Shahpura to Barodia, Police Station Viratnagar falls in the way and even while returning from Shahpura he did not inform/report in the police station Viratnagar. Therefore, we are of the opinion that apart from the fact that he is the near relation of the deceased, his conduct that he did not inform the police, did not even care to intervene, his statement was recorded after four days of the incident, his statement cannot be relied upon. 7. Coming to the statement of Kaluram PW 4 father of deceased Bhagwan Sahai, we have already said earlier that the case suffers from the lacunae of delay in lodging the FIR and the said delay has not been explained. Kaluram PW 4 states that it was about 4.00 p.m. that his son Bhagwan Sahai had gone to the accused appellant to demand his dues and only on hearing an alarm he came towards that side, that he again stated that he followed his son Bhagwan Sahai to the house of the accused appellant. Both the statements cannot be reconciled. Whether he had gone after hearing the alarm or was following his son ? According to the FIR which was lodged by him, the accused appellant was armed with a buttoned knife. But in his statement Kaluram PW 4 states that it was accused-appellant who was armed with ropi. When he was confronted with his police statement, he could not explain the conflict and rather said that he had not stated either in the statement or in the FIR that the accused appellant was armed with a knife. He slates that he was informed about the quarrel in between the accused appellant and Bhagwan Sahai by a child, but he does not remember the name of the child though he is his relation. It is really surprising that if child is his relative, he will forget his name. He slates that he was informed about the quarrel in between the accused appellant and Bhagwan Sahai by a child, but he does not remember the name of the child though he is his relation. It is really surprising that if child is his relative, he will forget his name. At any rate, if any child will inform about the quarrel in between the accused appellant and Bhagwan Sahai, he must have taken some time to reach to the spot and the accused would not have waited for his arrival for inflicting one knife blow to the deceased. The statement, therefore, does not appear to be correct. It, therefore, becomes doubtful that he had in fact witnessed the occurance. He goes to SMS Hospital, Jaipur and prior to that he must have gone to some other hospital as appears from the stitched wound which appeared on the dead-body. No attempt was made from anywhere, not even in the police station Viratnagar or by PW 8 Kesiram who was posted in Police Chowki, S.M.S. Hospital to record the dying declaration of Bhagwan Sahai in the hospital. Therefore, the delay in lodging the FIR is fatal and has not been explained. The third witness is Chothuram and as stated by him, he too has witnessed the occurance. He is uncle of the deceased and belongs to the same family. He too is said to have reached to the spot after hearing the alarm. The occurence is said to have taken place at 4.00 p.m. in the day in a chowk where some independent witness must be there but none of them has been examined. There is one very important lacunae in the evidence of each of the witness inasmuch as for introducing Bansi who is said to have caught hold of deceased Bhagwan Sahai and then the accused appellant is said to have stabbed. The case of the prosecution was found false by the learned trial court so far as Bansi was concerned and he was acquitted. Therefore, no reliance can be placed on the case of the prosecution. 8. Consequently, we hereby allow this appeal, set aside the judgment dated 3rd March 1993 of the learned Additional Sessions Judge, Jaipur district, Jaipur convicting and sentencing the accused appellant under Section 302 Indian Penal Code. The sentence awarded to the accused appellant is set aside. The accused is in jail. 8. Consequently, we hereby allow this appeal, set aside the judgment dated 3rd March 1993 of the learned Additional Sessions Judge, Jaipur district, Jaipur convicting and sentencing the accused appellant under Section 302 Indian Penal Code. The sentence awarded to the accused appellant is set aside. The accused is in jail. He shall be released forthwith if not wanted in any other case.Appeal allowed. *******