Judgment Om Prakash, J. 1. Appellant Siyaram Yadav has been convicted for the offence punishable under Sec.302, I. P. C. and sentenced to imprisonment for life 2. Prosecution case, in brief, is that on 3rd June, 1976, at about 2 P M. Informant Rameshwar Yadav and his maternal uncle Bhikhan yadav were irrigating informants land situated in village Amupatti, P. S. Sadar, District Darbhanga, through a Damkal (Pumping set) installed in the river flowing to the south of his house. The water was passing through parti land of appellant Siyaram Yadav. At that time, appellant Siyaram yadav and Sitar am Yadav, Channi Yadav and Ram Narain Yadav who were on litigating terms with the informant from before, arrived there siyaram was armed with a Bhala while the three others had lathies. Siyaram protested against flow of water through his land. Bhikar Yadav told him that it was causing no damage to him. It led to latercatlon and exchange of abuses. In the meantime, Siyaram inflicted a Bhala blow on the abdomen of Bhikar Yadav who fell down unconscious. The alarm raised attracted Ramsonder Yadav (P. W.3), Jumrati Mian, Ghutak musbar and others who witnessed the occurrence. Injured Bhikar Yadav was removed to Darbhanga Medical College Hospital where fardbeyan of rameshwar Yadav was recorded on 4th June, 1976, at about 1.30 P. M later on, Bhikar Yadav succumbed to his Injury. 3. Police registered a case, conducted investigation and submitted charge-sheet against the appellant and his three companions. In due course, the four were put on trial for the offence punishable under Sec.302 read with Sec.34, I. P. C Appellant Siyaram Yadav was further charged under Sec.302, I. P. C. On a consideration of the materials on record the learned Addl. Sessions Judge acquitted Chanin Yadav, Sitaram Yadav and Ram Narain Yadav. But he convicted and sentenced appellant siyaram Yadav, as above. 4. In his statement under Sec.313, Cr. P. C , the appellant has denied the allegation against him. His case is that this case has been instituted as a counter blast to the case institued by the defence party against the prosecution party. 5. The prosecution has examined 17 P. Ws. and produced a copy of a dying declaration, Ext.3 P. Ws.1 to 3 and 5 have claimed to be eye-witnesses. His case is that this case has been instituted as a counter blast to the case institued by the defence party against the prosecution party. 5. The prosecution has examined 17 P. Ws. and produced a copy of a dying declaration, Ext.3 P. Ws.1 to 3 and 5 have claimed to be eye-witnesses. , p. W.17 is a doctor and P W.12 is a Judicial Magistrate who claims to have recorded dying declaration. P. Ws 13 and 15 are Investigating officers, P. Ws.8, 10, 11, 14 and 16 are formal witnesses and p. Ws.4, 6, 7 and 9 have been tendered for cross-examination. 6. The learned trial court has rejected the evidence of P. Ws.1, 2 and 5 because their statements were recorded bv the Investigating Officer with unexplained undue delay on 16-6-1976 or on 1j-6-76 and 16-6-76, and they have not been named in the fardbeyan as witnesses of the occurrence. It has also rejected Ext.3 said to be a copy of dving declaration as there is no explanation as to how such copy was prepared after loss of the original document. But it has relied upon P. W.3 as he has been named in the fardbeyan even though this statement was recorded by the Investigating officer 12 days after the occurrence. 7. Shri Kanhaiya Prasad Singh, learned counsel for the appellant, has vehemently argued that the reason for which the trial court has disbelieved P. Ws.1, 2 and 5, is good enough to disbelieve P. W.3 also 8. P. W.3, Ram Sundar Yadav is a grandson of the deceased. His evidence is that appellant Siyaram had brought a criminal case against him and his father before the occu rrence and he was convicted in such case. His appeal against such conviction is pending. His brother Raj kumar had brought a criminal case against appellant Siyaram and others before the instant occurrence. But he expresses his ignorance if it ended in acquittal of appellant Siyaram P. W.3 further admits that he is one of the accused in the counter case instituted by the appellants paity. Thus admittedly P. W.3 is a partisan and interested witness having old enmity with the appellant. Had such a witness seen the appellant committing murder of his grandfarther, he would not have kept mum for 12 long days living in his village and visiting the hospital where his injured grandfather was under treatment. Thus admittedly P. W.3 is a partisan and interested witness having old enmity with the appellant. Had such a witness seen the appellant committing murder of his grandfarther, he would not have kept mum for 12 long days living in his village and visiting the hospital where his injured grandfather was under treatment. Had he seen the murder being committed by the appellant, he, as an average person of ordinary prudence, would have surely appeared before the Investigating Officer either in his village or in the hospital or even at the police station to make statement before him about the occurrence. His abstaining from making a statement before the Investigating Officer, non-recording of his statement by the Investigating Officer, for 12 days, in the above circumstances speaks volumes. 9. True, name of P. W.3 appears in the fardbeyan as a witness of the occurrence. But that alone can not condone the unexplained twelve days delay in according the statement of this partisan and interested witness by the Investigating Officer specially in view of the fact that F. I. R. was lodged on 4-6-76 at 1.30 P. M. i e, about 24 hours of the occurrence. 10. In the circumstances referred to above, I am very much hesitant to rely on the statement of P. W.3 to uphold the conviction of the appellant in as serious a case as murder. Graver is the offence, better must be the quality of the evidence It must be more convincing and Inspiring more confidence. 11. Neither Jumrati Mian nor Chutak Mushar who have been named as eye-witnesses of the occurrence in the Fardbeyan, has been examined and no explanation has been given for withholding them. Had such non-relations been examined, they would have given an independent account of the occurrence impartially, With holding of these two witnesses leads to an inference that had they been examined, they would not have supported the prosecution version of the occurrence. 12. Shri Kamta Prasad Gupta, learned Addl. Public Prosecutor has referred to the case of Ram Prasad V/s. The State of U. P. , A. I. R.1973 supreme Court 2,673, arauing that it is not necessary for the prosecution to examine all the eye-witnesses. In my view, it is of no assistance to him simply because none of the P. Ws. Shri Kamta Prasad Gupta, learned Addl. Public Prosecutor has referred to the case of Ram Prasad V/s. The State of U. P. , A. I. R.1973 supreme Court 2,673, arauing that it is not necessary for the prosecution to examine all the eye-witnesses. In my view, it is of no assistance to him simply because none of the P. Ws. examined of whom none, except P. W.3, has been mentioned, in the Fardbeyan, as an eye-witness, has been found to be reliable. Had a reasonable number of reliable and trust-worthy eye-witnesses been examined by the prosecution, the above case would have helped him to argue that the prosecution was not bound to examine any of the Jumrati Mian and Ghutak Mushar. But the prosecution is not so. 13. Evidence of P. W.17, Dr. Mitbilesh Kumar Sinha, who held post mortem examination on the dead body of the deceased, shows that he found partially healed wound in the middle of the abdomen in mid-line 5" in length. He has opined that the injury was ante-mortem, grievious and dangerous to life. It wes likely, to be caused by sharp pointed weapon which may be a Bhala. But his evidence in para 3 is that by looking into this injury it appears that the deceased prior to being brought before him, was operated upon and the injury (on the abdomen) can even be caused at the time of operation by the use of surgical apparatus. In view of his such evidence, it is difficult to conclude unmistakably that the injury on the abdomen of the deceased was caused by no instrument other than a Bhala. 14. Evidence of P. W.13, Chandreshwar Prasad, one of the Investigating officers, shows that be had received an D. O. slip from the hospital. But the doctor of the hospital who wrote such D. O slip after examining the wound on the abdomen of the deceased, has not been examined as a witness in this case. Had he been examined, he would have told the court as to whether in his opinion the wound was likely to be caused by a Bhala blow and he would have given a definite opinion about the weapon used, a point on which the doctor examined is not in a position to give a definite opinion. Hence his examination was necessary. His none-examination has not been explained. Hence his examination was necessary. His none-examination has not been explained. In these circumstances, an inference can reasonably be drawn that had the prosecution examined such doctor, he would not have supported prosecution case that the deceased had received Bhala injury on his abdomen. In view of the above, I am of the opinion, that medical evidence brought on the record does not prove satisfactorily and convincingly that the deceased had received a Bhala injury on his abdomen. 15. Shri Gupta has relied upon certain cases to press his argument that delay in recording statement of a witness by the Investigating Officer can not adversely affect his credibility before a court and this court can take a view different from that of the trial court with regard to evidence of p. Ws.1, 2 and 5. One such case in of Jaidev V/s. State of Punjab AIR 1962 Supreme Court 612. It has been held in this case that in dealing with oral evidence, a court of appeal would normally be reluctant to differ from the appreciation of oral evidence by the trial court because obviously the trial Court has the advantage of watching the demeanour of the witnesses, but that is not to say that even in a proper case, the Appeal Court can not interfere with such appreciation where the criticism made by the trial court is not so much in relation to the demeanour of the witnesses as in regard to their partis in character and and over statements which they made as partisan witnesses are generally apt to do, there is no justifiction for confiding that the finding of the High Court based upon reconsideration of the evidence should not be accepted. 16. In the Instant case, I am of considered view that the learned trial judge has rightly rejected the testimony of each of P. Ws 1, 2 and 5 who were examined by the Investigating Officer after long and unexplained delay and who are enimical to the appellant from before the occurrence and are also accused in the counter case, it has rightly rejected Ext.3 a copy of so-called dying declaration as it has not been clarified as to on what basis such document was prepared after the original was lost. I am, therefore, vety much reluctant to differ from the appreciation of the evidence of P. Ws.1, 2 and 5 by the learned Addl. I am, therefore, vety much reluctant to differ from the appreciation of the evidence of P. Ws.1, 2 and 5 by the learned Addl. Sessions Judge. 17. Shri Gupta has also relied upon the case of Ranbir v State of punjab, AIR 1973 SC 1409 In this case P W.1 Totaram was examined by police after considerable delay. P. W.1 Tolaram stated that it was out of fear of the accused periods that he had hidden himself for four days. He left his house without telling any member of the family about it The Investigating Officers were not asked any question about the time of or delay in examination of Totaram. Then it was held by the apex court that the period of delay of examination of Totaram should have been put to the Investigating Officer to enable him to explain the undue delay in examining Totarm. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the Investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor. 18. In ths instant case, facts are different. None of the P. Ws, who claims to be an eye-witness of the occurrence, namely, 1, 2, 3 and 5 has stated that be had hided himself for any period for any reasons, or had left home without telling any one about it. On the other hand, evidence P. W.3 shows that on each of the twelve days he was very much avdilable in his village and also in the hospital where the deceased was admitted. Likewise P. Ws. P, 1, 2 and 5 were also available to the investigating Officer. The Investigating Officer, P W 15, has been asked questions about the time of examination of the above witnesses and he has not explained the undue delay in examination of any of the P. Ws. The partisan and interested P. Ws. appear to have volunteered themselves to be eye-witnesses to support the prosecution case against their enemies who get some of them convicted before the occunence as is clear from the evidence of P. W.3 referred to as above. 19. The partisan and interested P. Ws. appear to have volunteered themselves to be eye-witnesses to support the prosecution case against their enemies who get some of them convicted before the occunence as is clear from the evidence of P. W.3 referred to as above. 19. Shri Gupta has also referred to the case of Lalli V/s. State of W. B, air 1986 SC 990 wherein there was delay of about 56 days in recording the statement of the main P W. Haradhan Das. But a clear, cogent and satisfactory explanation was given as to why his statement was recorded after the lapse of about 56 days and such explanation was accepted by all the Courts. But in the instant case, as mentioned above, no explanation whatsoever has been given for delay in recording the statement of any of the above P. Ws. 20. In view of the above, I come to the conclusion that the trial court has rightly rejected the evidence of P Ws, 1, 2 and 5 as well as ext.3, P. W.3, for reasons recorded above, too, can not safety and reasonably be relied upon to uphold the appellants conviction. 21. In the result, the appeal succeeds, and is hereby allowed. The above order of conviction and sentence passed against the appellant is hereby set aside He is acquitted of the charge and is discharged from the liability of the bail bond.