MIRDHE, J. ( 1 ) THIS criminal appeal is preferred by the State against the judgement dated 27-1-1993 passed by the Additional Sessions Judge, Bijapur, in S. C. No. 86/1991 acquitting the respondent-accused of the offence punishable under S. 302, I. P. C. ( 2 ) WE have heard the learned Additional State Public Prosecutor Sri A. B. Patil and the learned counsel for the respondent-accused Sri S. G. Rajendra Reddy fully and perused the records of the case. ( 3 ) THE case of the prosecution is as follows :pw 1 is the father of deceased Khajibai. Khajibai was eking out his livelihood by selling omelettes near the Mandal Panchayath office. The accused had taken Rs. 40/- as hand-loan from him. On 14-7-1991 at 8. 00 p. m. deceased Khajibai was doing his business of preparing omelettes and selling them near the Mandal Panchayath office and at that time, the accused came there. The deceased asked him to return back the amount taken by him as loan as the deceased was in financial difficulties. The accused felt insulted since the deceased demanded the amount in a public place. He started abusing the deceased. The customers Davalsab Bandenawaj Yeligar, Dastagirsa Hasari Burali and Yakub Lalsab Baligar, and also the complainant who were there advised the accused not to raise his voice and to pay the amount on the next day or some time thereafter if he had no money on that day. But the accused took out jambia and assaulted on the stomach of the deceased causing him grievous injuries. The complainant gave his complaint in India Police Station. The police registered a case and started investigation of the case. The deceased was shifted to the Civil Hospital at Bijapur immediately. But he died on 16-7-1991 at 11. 30 a. m. in that hospital. The police, after completion of the investigation, filed charge-sheet against the respondent accused. ( 4 ) THE prosecution pressed into service the evidence of PWs 1, 2 and 6 as the eye-witnesses and also the evidence regarding the recovery of M. O. 3 in pursuance of the voluntary statement of the respondent-accused. But, the trial Court did not act upon the said evidence for the reasons given by it in its judgement and acquitted the respondent-accused. But, the trial Court did not act upon the said evidence for the reasons given by it in its judgement and acquitted the respondent-accused. ( 5 ) THE evidence of PW 5, the doctor who conducted the post-mortem examination is to the effect that he noticed as many as 8 external injuries and injury Nos. 9 and 10 noted by him were the internal injuries corresponding to external injury Nos. 1 and 2. He had also opined that injuries 1 and 2 were sufficient in the ordinary course of nature to cause the death of the deceased. Ext. P-4 is the post-mortem report given by this witness. In view of this evidence, the trial Court was justified in coming to the conclusion that the deceased died a homicidal death. ( 6 ) THE prosecution examined PWs 1 to 4 and 6 and 7 as eye-witnesses to the commission of the offence by the accused. But, PWs 3, 4 and 7 have not supported the prosecution case. They have been treated hostile by the prosecution and cross-examined by the prosecution. Hence, it is obvious that the evidence of PWs 3, 4 and 7 will not be of any use to the prosecution to connect the accused with the offence alleged against him. It is the evidence of PWs 1, 2 and 6 that was considered by the trial Court. The gist of the evidence of these witnesses is that on that day at 8. 00 p. m. the deceased was preparing omelettes and PW 2-Dastagir was present with him and another customer C. W. 14-Shivanand examined as PW 7 was waiting for the supply of omelettes by the deceased and that there was a chimney light at the place where the deceased was preparing omelettes, and that PW 1 heard the shouting from the shop of his son and he went near his son's shop where he was doing the business of selling omelettes and that the accused was present there and that CW 12-Davalsab who is examined as PW 4, Mahaboob, examined as PW 6, and one Yakub Attar, examined as PW 3, came there and that PW 1 asked the accused and the deceased as to why there was noise and the deceased told him that the accused had taken a hand-loan of Rs. 40/- from him and when he demanded the money from him, he abused him and that all the persons present there advised the accused not to raise voice and if he had no money to pay the same subsequently and that the accused said "ee magana tindi bahala ade, ivana mugasebiduttene" and took out a jambia and assaulted the deceased and the deceased fell down and the accused ran away and that the witnesses shifted the injured in a bus and came to Indi Police Station and PW l gave his complaint. One of the grounds for the trial Court to disbelieve the evidence of these witnesses is that either they are related or interested. It is a well settled law that the evidence of a witness cannot be disbelieved on the ground that he is either related or interested. If a witness is interested or related, that will be a ground not to reject his evidence in toto, but to assess his evidence carefully and catiously, and if his evidence is found to be acceptable, such evidence can be acted upon notwithstanding the fact that the witness is either related to or interested in the deceased. ( 7 ) ANOTHER ground on which the trial Court has rejected the prosecution is that there is a delay in the receipt of the F. I. R. by the Jurisdictional Magistrate. The incident took place at 8. 00 p. m. on 14-7-1991. The complaint is filed at 9. 10 p. m. in Indi Police Station, There does not appear to he any delay in filing the complaint as the deceased was shifted in a bus and taken to Indi Police Station which is situated at a distance of 12 kms. from the scene of offence. Even the evidence of PW 18 is to the effect that she examined the deceased who was brought to the hospital at about 11. 00 p. m. on 14-7-1991 itself from Indi Police Station. These facts clearly go to show that the complaint was filed without any undue delay and the investigation had also started. But, there appears to be some delay in the receipt of the F. I. R. by the Magistrate which was received on 15-7-1991 at 11. 00 p. m. on 14-7-1991 itself from Indi Police Station. These facts clearly go to show that the complaint was filed without any undue delay and the investigation had also started. But, there appears to be some delay in the receipt of the F. I. R. by the Magistrate which was received on 15-7-1991 at 11. 20 a. m. In the case of Sarwan Singh v. State of Punjab ( AIR 1976 SC 2304 ), the Supreme Court while dealing with the delay in the despatch of F. I. R. has observed as follows :"the delay in despatch of the First Information Report is not a circumstance which can throw out the prosecution in its entirety. "their Lordships have also quoted the observations of the Supreme Court in the case of Pala Singh v. State of Punjab ( AIR 1972 SC 2679 ) which are as follows :"but we find in this case that the F. I. R. was actually recorded without any delay and the investigation started on the basis of that F. I. R. and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. "in this case also, there is no delay in lodging the complaint and the investigation had already started and the deceased was sent by the police to the hospital at Bijapur for treatment as an in-patient and there does not appear to be any other infirmity in the prosecution case. So far as this aspect of the case is concerned, we find that the trial Court could not have rejected the case of the prosecution on the ground that there was delay in receiving the F. I. R. by the Jurisdictional Magistrate. Moreover, every delay is not fatal to the prosecution case. If it can be inferred from the delay that the investigating agency has utilised it for the purpose of either concocting the case or suppressing the real genesis of the case then only such delay can be fatal to the prosecution case. The prosecution is always of liberty to explain the delay. If it can be inferred from the delay that the investigating agency has utilised it for the purpose of either concocting the case or suppressing the real genesis of the case then only such delay can be fatal to the prosecution case. The prosecution is always of liberty to explain the delay. If the delay is not properly explained and if there are circumstances to show that the delay is used for fabrication and concoction of a case, such delay will be fatal to the prosecution case. In this case, we do not find any such delay so as to discredit the prosecution case on that ground. But, the evidence of the 3 witnesses also has been disbelieved by the trial Court on the ground that they are chance witnesses. ( 8 ) PW 1 is the father of the deceased. PW 2 is also a relation of the deceased. PW 6 is the uncle of the deceased. The deceased is said to have been keeping a shop for preparing omelettes and selling them to his customers. The deceased was not running his omelette selling business in a particular shop, but he was doing his business in the open space by keeping a bench and a table there. This has come in the evidence of PWs 1 and 2. The incident had happened at 8. 00 p. m, in a village by name Salotagi. It is not disputed in this case that PWs l, 2 and 6 are the residents of that village and the place where the deceased was running his omelette centre was near the Mandal Panchayath office. If is not uncommon for the villagers to come out of their houses in the night and sit for a while in places like temples, mosques or tank-bunds or even the public places like Panchayath offices or theatres. Therefore, it does not took unnatural or improbable if these witnesses had come there. We are of the opinion that these witnesses also could not have been disbelieved on the ground that they are chance witnesses. ( 9 ) BUT, the evidence of these witnesses cannot be accepted in view of some improvements made by PW 1 in his evidence, non-seizure of the table, chair, cooking equipments for preparing omelettes by the deceased, non-seizure of chimney and non-explanation of the discrepancy between the medical evidence and ocular evidence in this case. ( 9 ) BUT, the evidence of these witnesses cannot be accepted in view of some improvements made by PW 1 in his evidence, non-seizure of the table, chair, cooking equipments for preparing omelettes by the deceased, non-seizure of chimney and non-explanation of the discrepancy between the medical evidence and ocular evidence in this case. ( 10 ) IT is the evidence of PWs 1, 2 and 6 that the accused dealt only one blow on the abdomen of the deceased But, the evidence of PW 5 is to the effect that he saw two stab wounds and he has specifically stated that these stab wounds could be caused by two separate blows. How two blows came to be dealt on the deceased is not explained by the prosecution. PW 18 has been examined as the doctor who first examined the deceased when he was brought to the Civil Hospital at Bijapur. She has deposed that she noticed only one injury on the person of the deceased. But, it does not appear to be the truth if the inquest report, Ext. P-8 is perused. It shows that there were 8 external injuries on the knees and below the portion of the knees and on the abdomen of the deceased. How PW 18 missed those injuries is also not explained by the prosecution. PW 5 has stated that he noticed the following injuries on the body of the deceased :1) A sutured wound present on the abdomen 1/2" left to the midline in the umbilical region and upper part of the hypogastrium. Verticle in direction and 51/2" in length2) A sutured wound present in the left iliac region and hypogastrium, strating from 1/2" left to the midline of the abdomen, extending up to left iliac rest. Horizontal in direction and 6" in length. 3) An abrasion on the anterior aspect of right leg 2" below the knee joint measuring 11/2" x 1". Soab formed. 4) An abrasion on the anterior aspect of left leg 11/2" below the knee joint measuring 11/2" x 1" soab formed. 5) An abrasion on below the injury No. 4 measuring 1/2" x 1/4" soab formed. 6) An abrasion on the anterior aspect of the big toe of the left foot measuring 1/4" x 1/4" soab formed. 7) A sutured wound (Venesection wound) present on the medical aspect of left ankle joint. 5) An abrasion on below the injury No. 4 measuring 1/2" x 1/4" soab formed. 6) An abrasion on the anterior aspect of the big toe of the left foot measuring 1/4" x 1/4" soab formed. 7) A sutured wound (Venesection wound) present on the medical aspect of left ankle joint. Horizontal in direction and 1" in length. 8) A cut injury present on the inner and anterior aspect of left ilias rest, measuring 1" x 1/8" x 1/8". 9) Sutures of end to end anastomesis present on the small intestine, 2 feet distal to the phloric end of the stomach. 10) Sutures present in the middle third of the mesentary. He has stated that in injuries 9 and 10 are the internal injuries corresponding to external injuries 1 and 2. His further evidence is that external injuries 3 to 6 noted by him could be caused by coming into contact with hard and blunt substance like sticks. It is not the prosecution case that sticks were used for assaulting the deceased and the prosecution has not explained these injuries. Injuries 3 to 6 noted by P. W. 5 cannot be brushed aside as superficial injuries. The witnesses do not say in their evidence that the deceased was assaulted with such a force so as to sustain those injuries. Those injuries indicate that the incident had not occurred in the manner as projected by the prosecution witnesses in their evidence. If really one blow were to be given by the accused as deposed by the witnesses, there was no reason for the deceased sustaining to external wounds i. e. , injury Nos. 1 and 2, and there was no question of his sustaining injuries 3 to 6. The incident appears to have taken place in the manner in which the deceased had also sustained injuries 3 to 6. Was there a fight between the accused and the deceased ? Was there any scuffle between them ? Was the deceased done to death when he was trying two grapple with the accused ? Whether the injuries were sustained by the deceased when he was grappling with the accused on the ground and in that process the accused killed him ? There could be so many possibilities of the deceased sustaining the injuries. The Court is not expected to give a finding as to how the deceased might have died. Whether the injuries were sustained by the deceased when he was grappling with the accused on the ground and in that process the accused killed him ? There could be so many possibilities of the deceased sustaining the injuries. The Court is not expected to give a finding as to how the deceased might have died. The duty of the Court to find out whether the guilt of the accused is proved beyond reasonable doubt by the prosecution on the basis of the evidence relied upon by it in accordance with law. From the non-explanation of injuries 3 to 6 found on the dead body of the deceased the only inference that can be raised is that the real genesis of the case is suppressed. The evidence of P. Ws. l to 3 could not have been safe to be relied upon. ( 11 ) THE witnesses are alleged to have seen the incident in the light of a chimney. Though P. W. 2 says that he showed the chimney to the police officer it had not been seized. But, P. W. 17, the P. S. I. has stated that he did not think it necessary to seize the chimney. The incident had taken place at 8. 00 p. m. and the incident is alleged to have been seen by the witnesses mainly in the light of the chimney. The police officer was totally wrong in thinking that the chimney was not an important object to be seized in the case. It was a very important material object which could have corroborated the evidence of P. Ws. 1, 2 and 6. No police officer would fail to seize such an important material object in a case if it were to be available to him for his seizure. Not only that he has not seized the chimney, but he has also not seized the table, chair and other cooking equipments which were used by the deceased for preparing omelettes at the time of the incident. Even the blood-stained clothes of the deceased are not seized in this case. Non-seizure of such important material objects by the investigating officer is a tell-tale commentary on the prosecution case that the incident is not placed before the Court in the manner it might have occurred. Even the blood-stained clothes of the deceased are not seized in this case. Non-seizure of such important material objects by the investigating officer is a tell-tale commentary on the prosecution case that the incident is not placed before the Court in the manner it might have occurred. If really the incident has occurred when the deceased was preparing omelettes in this shop consisting of a table, a chair and chimney, those articles certainly would have been seized by the police officer Non explanation of certain injuries, more so external injuries No. 2 and also injuries 3 to 6, by the prosecution lends further force to the inference that the prosecution has suppressed the real genesis of the case. ( 12 ) THE other evidence that is relied upon by the prosecution is the recovery of M. O. 3. We do not attach much importance to the discrepancy in the evidence of P. Ws. 1, 2 and 6 in describing M. O. 3 as a jambia, when in fact it is a folding knife, because the witnesses have seen that knife and have identified it as the knife used by the accused. The witnesses giving a wrong name to that object will not be a ground to doubt their evidence as they have identified the said object. But, in this case, the recovery is also not proved satisfactorily in view of the fact that both the mahazardars examined by the prosecution have not support the prosecution case and merely on the basis of recovery no accused can be convicted when the evidence of eye-witnesses is found unworthy of acceptance. ( 13 ) THE learned Additional State Public Prosecutor submitted that even if the prosecution has not been able to explain external injuries-3 to 6 on the body of the deceased, still the case of the prosecution cannot be disbelieved in its entirety. He further submitted that in view of the evidence of P. Ws. ( 13 ) THE learned Additional State Public Prosecutor submitted that even if the prosecution has not been able to explain external injuries-3 to 6 on the body of the deceased, still the case of the prosecution cannot be disbelieved in its entirety. He further submitted that in view of the evidence of P. Ws. 1, 2 and 6 which goes to show that it is the accused who stabbed the deceased, the offence made out by the prosecution will certainly fall under Part I of Section 304 of the I. P. C. If the evidence discloses that the offence committed by a person is other than the offence alleged by the prosecution, the Court can convict a person for the said offence made out or proved from the evidence of the prosecution. But, the Court cannot make out a new case for the prosecution. In order to hold that the accused is guilty of the offence punishable either under Part I or Part II of Section 304, I. P. C. the Court will have to hold that the accused might have killed the deceased by exceeding his right of private defence or in a free fight started by the deceased on certain sudden grievance and provocation. It is not the case of the prosecution that the incident took place in a quarrel or that there was any sudden and grave provocation given by the deceased or that there was any exceeding of the right of private defence by the accused. In order to accept the argument of the learned Additional State Public Prosecutor, the Court will have to make out a new case for the prosecution which it will not be justified to do so. ( 14 ) VIEWING the matter from any angle, we do not think that the trial Court was not justified in acquitting the accused. We do not find any ground to interfere with the judgement challenged by the State in this appeal. ( 15 ) THE appeal is dismissed. Appeal dismissed. --- *** --- .