JUDGMENT 1. :- This appeal is directed against the judgment dated 21.10.87, passed by the Additional Sessions Judge, Rajsamand, by which the learned Addition- al Sessions Judge convicted the accused-appellant for the offences under Sections 302 and 398 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Section 302 Indian Penal Code; and seven years' rigorous imprisonment and a fine of Rs. 250/- and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 398 Indian Penal Code. 2. The appellant was tried by the learned Additional Sessions Judge, Rajsamand, for the offences under Sections 302, 398 Indian Penal Code for committing the murder of Smt. Udi W/o Bhera and making an attempt to commit robbery while he was armed with a deadly weapon like knife. The case of the prosecution, as unfolded in the F.I.R., is that Shanker Lal R/o village Sasera, at about 11.00 a.m., heard in the village that Smt. Udi W/o Bhera has been murdered. On hearing this news, he went to the field of Kajoriya Bhil, i.e., at the place of the incident, where the deadbody of Smt. Udi was lying and Lehru, Magni Ram, Madho Lal and Bhanwar Dhobi etc. were standing there. Magni Ram informed him that at about 10.00 a.m. he was cutting the crop of Macca and then he heard the cries, "why you are killing me, you may take whatever you like." On hearing these cries, he and Madho ran towards the place of the incident and saw accused Madho taking out silver Karas from the legs of the deceased. On seeing Magni Ram and Madho, the accused ran away. As per the prosecution case, the accused committed the murder of Smt. Udi for committing the robbery of silver ornaments which were worn by Smt. Udi. The prosecution, in support of its case, examined eight witnesses. against judgment dated 20.10.87 passed by Addl. Sessions Judge, Rajsamand, in Sessions Case No. 57186 The accused did not examine any witness in his defence. The case of the accused in his statement under section 313 Criminal Procedure Code was that he has been falsely implicated on account of inimical relations with the villagers. against judgment dated 20.10.87 passed by Addl. Sessions Judge, Rajsamand, in Sessions Case No. 57186 The accused did not examine any witness in his defence. The case of the accused in his statement under section 313 Criminal Procedure Code was that he has been falsely implicated on account of inimical relations with the villagers. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above. It is against this judgment that the appellant has preferred this appeal. 3. The nature of the evidence, produced by the prosecution, consists of the evidence of the two eye witnesses, viz., PW 2 Magna and PW 4 Madho, who are the real brothers, which is sought to be corroborated by the evidence of the recovery of the blood-stained knife and the clothes of the accused on his information and at his instance. PW-1 Hajari Lal is the Motbir witness to the various recoveries while PW-3 Shanker Lal is the informant, who, after hearing the news regarding the murder of Smt. Udi, came to the place of the incident, made certain enquiries and then lodged the report. PW 5 Dr. Sukh Lal was the Medical Officer posted at Government Dispensary, Railmagra, who, on 12.10.86, conducted the post-mortem on the deadbody of Smt. Udi. PW 6 Hajari was the Photographer who took the photographs Ex. P.7 to Ex.P.14 of the deadbody of Smt. Udi on the asking of the police. PW 7 Niyaz Mohammed was the Police Constable posted at Police Station, Railmajra, who, on 12.11.86, took five sealed packets from the Malkhana of the Police Station and after obtaining the forwarding letter from the Office of the Superintendent of Police, Udaipur, deposited the sealed articles for F.S.L. examination in the State Forensic Science Laboratory, Jaipur. PW 8 Rajendra Kumar was the Station House Officer posted at Police Station, Railmagra on 11.10.86, who investigated the matter and presented the challan. 4. The case of the prosecution mainly rests upon the evidence of the two eye witnesses, viz., PW 2 Magna and PW 4 Madho. P.W 2 Magna has stated that on the relevant day, at about 9.00/10.00 a.m. he, alongwith his brother Madho, was sitting in the field of Bhanwru Mahajan after cutting the crop of macca. They heard the cries of a lady from the field of Kajoriya Bhil,"MAARE RE MAARE RE". P.W 2 Magna has stated that on the relevant day, at about 9.00/10.00 a.m. he, alongwith his brother Madho, was sitting in the field of Bhanwru Mahajan after cutting the crop of macca. They heard the cries of a lady from the field of Kajoriya Bhil,"MAARE RE MAARE RE". When he and his brother Madho went towards Kajoriya's field, they saw Smt. Udi lying in the Badiya and the accused was sitting on her chest and was trying to take-out silver Karas from her legs by one hand while in the other hand the accused was having a knife which was stained with blood. They asked the accused, "why he is killing the old lady, whatever he wants, he may take." Thereafter the accused went away with the knife but he could not take away the silver Karas because both of them reached there. They were at the distance of five to six paces when the accused ran away. When they reached near Smt. Udi, they found her dead by that time. She was having three wound one on the abdomen, the second on the neck and the third on her face. They raised cries and on hearing their cries, Hajari came there. Bhera and Shanker, also, came there. They informed these persons that the accused had killed Smt. Udi for committing the robbery of silver Karas, and they should inform the police. Shanker wrote a report there and gave it at the Police Station. In the cross-examination he has admitted the nobody other than them was in the field and before hearing the cries they had not seen the accused. He has, also, admitted that there is a fencing of chest height between the fields of Bhanwar Lal and Roopa. There is, also, fencing all around the area where the deadbody was lying. He has, also, admitted that there is a fencing of Chandrajot all around the field where the deadbody was lying, which was three feet in height. He has, also, admitted that he has not seen the accused and the deceased quarrelling. He has, also, admitted that he saw the deceased going with the she goats at about 10.00 a.m. and after five minutes he heard the cries and when he reached there, by that time Smt. Udi was dead. He has, also, admitted that he has not seen the accused and the deceased quarrelling. He has, also, admitted that he saw the deceased going with the she goats at about 10.00 a.m. and after five minutes he heard the cries and when he reached there, by that time Smt. Udi was dead. He has, also, admitted that the whole incident, i.e., going of Smt. Udi towards the field, her raising the cries, her murder, attempt of the accused to take away the silver ornaments and his running took only seven minutes. He has, also, admitted that prior to this, Smt. Udi never came to this side for grazing her she-goats. He has, also, admitted that there is a way adjacent to the field of Kajoriya where the deadbody was lying and people used to come on that way on Saturday and Sunday and the day on which the incident took place was Saturday. He has, also, admitted that normally people come in the field for work at 9.00 to 10.00 a.m. after taking their meals. He has, also, admitted that he or his brother Madho did not see the accused inflicting injuries to Smt. Udi nor the accused admitted before them that he inflicted injuries to Smt. Udi. They had seen the accused trying to take away the silver ornaments from the legs of the deceased and by that time the knife was lying on the ground and not in the hand of the accused. When he was confronted about the improvement made he said that he stated so to the police but why it has not been mentioned, he cannot say. Similar is the statement of PW 4 Madho. The only difference in their statements is that this witness has stated that they were cutting the crop for last about three to four hours and he had seen the deceased going towards the field about a Ghandi before. He has, also, admitted the presence of fencing between the fields of Bhanwar Lal where they were cutting the crop and that of Roopa and Kajori's field. He has seen the accused sitting on the ribs of Smt. Udi and trying to take away the Silver ornaments. He has, also, admitted the presence of fencing between the fields of Bhanwar Lal where they were cutting the crop and that of Roopa and Kajori's field. He has seen the accused sitting on the ribs of Smt. Udi and trying to take away the Silver ornaments. A close reading of the statements of these two witnesses clearly shows that they have not seen the accused-appellant inflicting injuries to the deceased and they have only seen the accused trying to take away the silver Karas from the legs of Smt. Udi and on seeing these witnesses the accused ran away. According to these witnesses, they had already cut the crop. There was no justification with these witnesses to remain present in the field particularly when the field was not belonging to them and belongs to Bhanwar Lai. Bhanwar Lal has not been produced to show that these witnesses were working in his field. There was a fencing of chest height between the fields of Kajodiya and Roopa and the fields of Roopa and Bhanwar Lal, where, according to these witnesses, they were working. The conduct of these witnesses, also, appears to be most unnatural. They did not try to save the victim nor they tried to catch-hold the accused. Even the injuries which were found on the person of the deceased were not of such a nature which could have resulted in her instantaneous death. PW 5 Dr. Sukh Lal has stated that foul smell was coming from the corpse of Smt. Udi and decomposition had started. The incident took place before 10.00 a.m. The report of the incident was lodged at Police Station, Railmajra which is at a distance of seven kilometers only, at 2.30 p.m. The covering of the distance of seven kilometers would not have taken more than one hour. The F.I.R. lodged by PW 3 Shanker Lal has been lodged after due deliberation and consultation. PW 3 Shanker Lal has admitted that he came at the scene of the occurrence and after talking with the witnesses he went to lodge the report. Moreover though the report was lodged on 11.10.86 at 2.30 p.m. but it reached the Court of the Munsif and Judicial Magistrate, Railmagra, on 13.10.86, i.e., after forty-five hours though the Court is situated in the same town. Moreover though the report was lodged on 11.10.86 at 2.30 p.m. but it reached the Court of the Munsif and Judicial Magistrate, Railmagra, on 13.10.86, i.e., after forty-five hours though the Court is situated in the same town. The unexplained delay in lodging the report and forwarding the same to the Court provides a legitimate basis for suspecting that the F.I.R. was not recorded at the time and date when it is alleged to have been written and this late recording of the F.I.R. afforded sufficient time to the prosecution to introduce improvement and embellishment and to set-up the distorted version of the prosecution case and, therefore, in the memos prepared by the investigating officer, only the number o the F.I.R. has been given and the other particulars of the case have not been given. PW 2 Magna has specifically stated that after Shanker came at the place of the incident, a report was written which was handed over by Shanker at the Police Station; while Shanker states that he lodged the verbal report at the Police Station. The report, which was written at the place of the incident, has not been placed on record which, also, creates a doubt regarding the genuineness of the F.I.R. EX.P.15, which is said to have been lodged by Shanker. In this view of the matter, we are of the opinion that PW 2 Magna and PW 4 Madho are not the eye witnesses of the occurrence and they have not seen the occurrence as stated by them and their statement do not inspire confidence. 5. The next circumstances which has been believed by the learned trial Court is the recovery of the knife on the information and at the instance of the accused-appellant. The knife was recovered from the bushes near the place of the incident. The place wherefrom the recovery of the knife was made, is open and accessible to all. The recovery of the knife from the bushes, therefore, cannot be said to be made on the information and at the instance of the accused-appellant. Moreover, there is no evidence on record that after the recovery of the knife, the seals on the packet remained intact as the Malkhana Incharge, in whose custody the incriminating articles in the case remained, has not been produced. 6. Similar is the case with the recovery of the clothes. The link evidence is missing. Moreover, there is no evidence on record that after the recovery of the knife, the seals on the packet remained intact as the Malkhana Incharge, in whose custody the incriminating articles in the case remained, has not been produced. 6. Similar is the case with the recovery of the clothes. The link evidence is missing. The person, in whose custody the articles remained after their seizure and sealing has not been produced in evidence to prove that the seals on the articles remained intact through-out. In this view of the matter, the recoveries of these articles, also, cannot be said to be incriminating against the accused-appellant. 7. For the discussion made above and after consideration of the case, we are of the opinion that the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt and the trial Court committed an error in convicting and sentencing the accused-appellant. The accused-appellant, therefore, deserves to be acquitted. 8. In the result, the appeal, filed by accused-appellant Madho, is allowed. The judgment dated 21.10.87, passed by the learned Additional Sessions Judge, Rajsamand, convicting and sentencing the accused-appellant, is, therefore, set aside and the appellant is acquitted of all the charges levelled against him. He is in jail and be released forthwith if he is not required in any other case.Appeal allowed. *******