Honble GUPTA, J. – Appellant Vail Nath was convicted under Sec. 302 IPC and was sentenced to imprisonment for life and a fine of Rs. 2,000/- in default R.I. for four months by the Sessions Judge, Doongarpur, by his judgment dated 11.8.88. (2).The prosecution case, in brief, is that on 15.9.87 at about 11 a.m. in Village Phaloj appellant Vail Nath having Kulhari (hatchet) in his hand entered into the house of Prabhulal and caused Kulhari blows to Premji, who was taken to the hospital on the same day but succumbed to the injuries on 17.9.87. The First Information Report was lodged by Prabhulal (PW 1) on 16.9.87 in Police Station Ganeshpur where a case under Secs. 452 and 307 IPC was registered. After the death of Premji Sec. 302 IPC was also added. During the investigation, the police inspected the site, interrogated the witnesses, arrested the accused and on his information recovered a Kulhari. This Kulhari was sent for chemical examination. The police collected injury report of Premji as also the post-mortem report prepared on 18.9.87. After completion of investigation, challan was submitted. Charged under Secs. 452 and 302 IPC were framed against the accused who pleaded not guilty. The prosecution examined PW 1 Prabhulal, PW 2 Balkrishan, PW 3 Bhernath, PW 4 Dr. Balmukund, PW 5 Abdul Yakub, PW6 Kesar Singh, PW7 Smt. Javer, PW8 Mogji, PW9 Vallabhram, PW10 Roopji, PW 11 Haksiram, PW12 Shankernath and PW 13 Kamalnath. Accused in his statement recorded under Sec. 313, Cr. P.C. stated that the witnesses have given false statements because they bear ill will agai- nst him. He stated that Prabhunath, Gautam and Javer are members of the same family and Shankernath was helping them. He did not examined any witness in defence. The learned Sessions Judge, after hearing the arguments of the parties found the charge under Sec. 302 IPC proved and sentenced the appellant as above. (3). We have heard the arguments of the learned counsel for the appellant and the learned Public Prosecutor for the State and perused the record of the case. (4). Learned counsel for the appellant has contended that the trial Court has convicted the appellant on the basis of surmises and conjectures and that the case set up in the FIR which was lodged after a delay of about 26 hours has been totally changed by the witnesses during trial. (4). Learned counsel for the appellant has contended that the trial Court has convicted the appellant on the basis of surmises and conjectures and that the case set up in the FIR which was lodged after a delay of about 26 hours has been totally changed by the witnesses during trial. He has submitted that the recovery of the Kulhari at the instance of the accused is not proved and, therefore, no inference could be drawn against the appellant, more so, when according to the medical evidence the injuries sustained by Premji could not be caused by the Kulhari recovered in the case. His further submission was that there was not motive for causing the death of a boy of 12 years and that as a matter of fact appellant has been implicated in this case on account of the previous enmity. (5). As against this, the learned Public Prosecutor has urged that the trial Court has rightly believed the statement of Prabhulal as also the evidence regarding recovery of the Kulhari. He has submitted that the conviction of the appellant should be maintained. (6). We have given the matter our anxious and thoughtful consideration. (7). The occurrence is said to have taken place on 15.9.87 at 11 a.m. A perusal of the FIR Ex. P/1 shows that this FIR was written by Keshar Singh HC at 1.30. p.m. and was recorded at the Police Station at 6 p.m. It is, thus, manifest that FIR in this case was not lodged for about 26 hours. The Police Station was situate just at a distance of 10 kms. away from the place of occurrence. No explanation whatsoever has been given by the prosecution of this delay. In the FIR itself it has not been stated as to why the FIR was not lodged immediately after the occurrence. It may be true that after Premji sustained injuries it was natural that he was to be shifted for treatment but as per the contents of the FIR Ex. P.1 this occurrence was wit- witnessed by as many as four persons including the mother and brother of the deceased. Even Gautamlal father of the deceased was also there in village. Anybody could go and lodge the report. The non-lodging of the report of more than 24 hours, in the facts and circumstances of this case, is certainly fatal to the prosecution case. (8). Even Gautamlal father of the deceased was also there in village. Anybody could go and lodge the report. The non-lodging of the report of more than 24 hours, in the facts and circumstances of this case, is certainly fatal to the prosecution case. (8). The case set up in the FIR Ex. P/1 which was lodged after much delay was that the occurrence was witnessed by Prabhulal, Mogji, Shankernath, Javer Bai and Vallabh Patel and the witnesses had actively intervened in the occurrence. How- ever, a reading of the statements of PW 7 Javer, PW 8 Mogji, PW 9 Vallabhram and PW 12 Shankernath clearly goes to show that they had not witnessed the occurrence. All these witnesses have turned hostile and have been cross-examined by the Public Prosecutor. They have denied to have given the police statements that they had seen the occurrence and that they had intervened in the occurrence. It is significant to point out that even Smt. Javer, mother of the deceased has also not supported the prosecution version set up in the FIR which goes not show that none of them had witnessed the occurrence in which Premji had sustained injuries. (9). Smt. Javer (PW7) has however deposed in her examination-in- chief that when she went to the place of occurrence hearing the noise of Prabhu, she saw appellant Vail Nath having Kulhari in his hand entering into his house. However, Smt. Javer had not stated this fact in her statement Ex.P/13 recorded by the police and when her attention was drawn towards this omission she did not offer satisfactory explanation. It is, thus, manifest that Smt. Javer has falsified herself when she deposed that she had seen the accused having Kulhari in his hand entering into his house. (10). PW 12 Shankernath though has turned hostile, has deposed that Prabhulal had told him that accused had inflicted Kulhari blows on Premji. However, this part of the statement of Shankernath does not find place in his police statement Ex. P/16. It is also relevant to state that Prabhulal in his statement has nowhere deposed that he had told Shankernath that Vail Nath had inflicted injuries to Premji. That being so, this part of the statement of Shankernath cannot be believed that Prabhulal had informed him immediately after the occurrence that accused had inflicted Kulhari blows to Premji. (11). P/16. It is also relevant to state that Prabhulal in his statement has nowhere deposed that he had told Shankernath that Vail Nath had inflicted injuries to Premji. That being so, this part of the statement of Shankernath cannot be believed that Prabhulal had informed him immediately after the occurrence that accused had inflicted Kulhari blows to Premji. (11). Coming to the statement of Prabhulal (PW1) it may be straight away observed that his evidence is not sterling worth. He is the person who had lodged the report Ex. P/1 mentioning that he and three other persons had intervened in the occurrence and that had Mogji, Shankernath and Vallabh Ram not intervened, the accused would have killed him and his mother also. But Prabhulal in his statement has denied that any of the three witnes had reached the place of occurrence at the time the accused was causing blows to Premji. In his statement recorded on 1.2.88 he had stated that when he cried for help, his mother Javer Bai reached and thereafter Mogji and Vallabhram had also reached and they had intervened in the occurrence. However, when the statement of this witness was completed on 28.5.88, he changed the version and deposed that when Shankernath, Mogji and Vallabh came, the accused was not there and had already gone into his house. It is, thus, clear that this witness has got no sanctity for oath. He tried to support the version of the FIR in his statement recorded on 1.2.88 but changed this version on 28.5.88 for reason best known to him. Similarly, in his statement recorded on the first day, the witness deposed that his mother had reached when the accused was there in his house. However, in the statement recorded on 28.5.88 i.e. after five months, he stated that when his mother reached, the accused had already gone towards his house, thereby changing the version that his mother had also seen the occurrence. (12). Prabhulal has deposed that he was inside the house and when he heard the cries of his brother he came out and saw accused inflicting Kulhari blow on Premji, However, in his cross- examination he has deposed that when he came out hearing cries of his brother, he saw that Premji was lying on the cot and accused was giving kicks by Kulhari to Premji. The facts which have appeared in his cross-examination clearly go to show that Prabhulal had not seen the accused causing Kulhari blow on the forehead of Premji, and he had seen only when Premji was lying on the cot, and he has falsely stated that when Premji was lying on the cot, accused was giving kicks by Kulhari. It is pertinent to note that the fact that accused gave kicks by Kulhari to Premji was not stated in the FIR Ex.P/1. This new fact has been added by Prabhulal in his cross-examination. If we exclude this part of the statement of Prabhulal, it becomes evident that what Prabhulal saw was that Premji was lying on the cot having sustained injuries on his person, and he had not been told as to who had caused injuries to Premji. As already stated, the FIR in this case was lodged after about 26 hours of the occurrence. This fact goes to show that Prabhulal did not know as to who was the assailant and, therefore, he took time in preparing a story and he was successful in persuading three persons of his village and his mother to depose that it was the accused who had caused injuries. However, it seems, conscience of the witnesses did not permit them to give false statements against the accused. As already stated, even the mother of the deceased has not supported the story of the prosecution. It has, therefore, to be inferred that whatever has been deposed by Prabhulal is not whole truth and he himself had not seen the occurrence. One more instance of telling a lie by this witness is apparent on record. He claims to have seen the Kulhari (Article 1) when it was recovered by the police. However, neither his presence at the time of recovery of Kulhari is borne out by the recovery memo nor any of the witnesses present at the time of recovery has deposed that Prabhulal was also there. For the aforesaid reasons no reliance can be placed on the testimony of Prabhulal. (13). The learned trial Court has also relied on the recovery of the Kulhari to convict the appellant. The evidence regarding the recovery of the Kulhari is contained in the statements of PW5 Abdul Yakub, PW2 Balkrishan & PW 10 Roopji. For the aforesaid reasons no reliance can be placed on the testimony of Prabhulal. (13). The learned trial Court has also relied on the recovery of the Kulhari to convict the appellant. The evidence regarding the recovery of the Kulhari is contained in the statements of PW5 Abdul Yakub, PW2 Balkrishan & PW 10 Roopji. PW5 Abdul Yakub has deposed that after he arrested the appellant, he gave him information Ex.p/9 stating that he had placed the Kulhari in his house and that thereafter he took the appellant to his house where he took out the Kulhari from his house in the presence of the Motbirs. The appellant has denied this recovery. PW2 Balkrishan and PW10 Roopji who are witnesses of the recovery memo Ex. P/4 have not supported the statement of Abdul Yakub. They have deposed that when they reached the house of Vail Nath, wife of Vail Nath produced a Kulhari there. Balkrishan has deposed that after the SHO reached the house of the appellant he asked the wife of the appellant that whether there was Kulhari in the house and if so it may be produced and thereafter the lady produced the Kulhari. It is significant to point out that both the `Panch witnesses have not been declared hostile. In view of the statements of the Motbirs it can hardly be believed that this Kulhari was recovered at the instance of the appellant. (14). The matter does not rest here. Even if we accept for arguments sake that this Kulhari was recovered from the appellant, it does not help the prosecution in any manner. Dr. Balmukund Sharma PW4 who had examined the injuries of Premji on 15.9.87 and conducted post-mortem examination on 18.9.87 has deposed in clear terms that the injuries No. 1, 2, & 3 suffered by Premji could not be caused by the Kulhari (Article 1) recovered in the case. He has deposed that the Kulhari was not having sharp edge and as such injury Nos. 1 & 2 could not be caused by it. He has further deposed that injury No. 3 could be caused only if there was some nail like substance fixed in Kulhari. When this Kulhari was recovered, there was no nail like substance fixed in it. It is, thus, clear that the injuries suffered by Premji could not be caused by this Kulhari. He has further deposed that injury No. 3 could be caused only if there was some nail like substance fixed in Kulhari. When this Kulhari was recovered, there was no nail like substance fixed in it. It is, thus, clear that the injuries suffered by Premji could not be caused by this Kulhari. It has come in the statement of Dr. Balmukund that the edges of the Kulhari could be made blunt by rubbing the same on the stone but in that case according to the Medical Officer, the blood could not be found on the Kulhari. On the other hand, if we take into consideration the report Ex. P/10, there were blood marks on the Kulhari. It may be pointed out here that regarding this report Ex P/10 no question has been put to the appellant under Sec. 313, Cr. P.C. and, therefore, this document cannot be read into evidence against the appellant. Be that as it may, looking to the statement of the Medical Officer that in the process of making the Kulhari blunt, blood must have disappeared, it has to be found that Kulhari (Article 1) is not the weapon which was used in the commission of the offence. (15). The prosecution story is that the accused was inimical to the family members of Prabhulal and he had expressed his intention that he would kill all the members of his family. It is obvious that the appellant did not cause injuries to Pra- bhulal though he had reached the place of occurrence. It shows that there was none at the house when Premji sustained injuries. Had the appellant gone there having a deadly weapon like Kulhari expressing intention that he would kill all the members of the family, he would not have contended by causing blows to Premji only and he would certainly have caused injuries to Prabhulal, more so when it is not in the evidence of Prabhulal that he was having some weapon to defend himself. It appears that after Prabhulal and his mother reached, they collected the villagers but by that time it was not known as to who was the assailant and it is because of the inimical relations, which is an admitted fact in this case, Prabhulal lodged report Ex. P/1 against the appellant. It appears that after Prabhulal and his mother reached, they collected the villagers but by that time it was not known as to who was the assailant and it is because of the inimical relations, which is an admitted fact in this case, Prabhulal lodged report Ex. P/1 against the appellant. It is common knowledge that enmity is a double edged weapon, as it supplies motive for the commission of the offence, at the same time it is the ground of false implication of the innocent persons. In view of the above discussion of evidence it has to be found that because of the enmity Prabhulal lodged false FIR implicating the appellant. In our considered opinion, the learned trial Court has committed error in convicting the appellant on the basis of the evidence produced in the case. The appellant is entitled to acquittal. (17). The result, therefore, is that this appeal succeeds. Setting aside the conviction and sentence, appellant Vail Nath is acquitted of the offence under Sec. 302 IPC. He is in jail. He shall be released forthwith if not required in any other case.