JUDGMENT 1. - This appeal has been directed against the Judgment dated 10.6.94 passed by learned Addl. Sessions Judge No. 1, Sriganganagar convicting appellant Sarvan Kumar under Section 304 Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years' and pay a fine of Rs. 500/- and appellant Budh Ram under Section 304 read with Section 34 Indian Penal Code and sentencing him to undergo rigorous imprisonment for 7 years' and pay a fine of Rs. 500/-. 2. It is on 14.2.1992 at about 4.00 p.m. that one Beg Raj (PW 4) lodged a report with the police station, Chamudwali that on 13.2.1992 at about 6.30 p.m., his uncle Kalu Ram (deceased) had gone to his house to tell as to why Sriram (his brother) had abused him. In the report it was stated that Budh Ram, his uncle, called Sarvan Kumar and told him that Kalu Ram should be taught a lesson and thereupon Sarvan inflicted `Kasia' blows on the head of Kalu Ram and Budh Ram abused him and told him that he should be killed. In the report it was also stated that as a result of sustaining the injuries, Kalu Ram fell down and became unconscious and that at the same time, Bhagirath and Tiku Ram had reached the place of occurrence and all of them had challenged Budh Ram and Sarvan Kumar and thereafter they ran away to their house. On this report, a case under Section 307 Indian Penal Code was registered in the police. During the investigation, Kalu Ram succumbed to the injuries and post-mortem examination was conducted on 22.2.92. After the completion of investigation, the police submitted the challan against both accused-appellants. The learned Sessions Judge charged the accused under Section 302 read with Section 34 Indian Penal Code. The prosecution examine PW 1 Chhotu Ram, PW 2 Bhagirath, PW3 Ramkishan, PW 4 Beg Raj, PW 5 Ramrakh, PW 6 Dr. Satish Kumar, PW 7 Budh Ram, PW 8 Rajendra Singh, PW 9 Dr. K.L. Markend, PW 10 Bisarat Ali, PW 11 Ashok Kumar, PW 12 Tiku Ram in support of its case. The accused in their statements recorded under Section 313 Criminal Procedure Code. stated that the witnesses have given false statements and that they were innocent. The accused did not examine any witness in defence. The learned Trial Court after hearing the parties/convicted the accused-appellants as above. The accused in their statements recorded under Section 313 Criminal Procedure Code. stated that the witnesses have given false statements and that they were innocent. The accused did not examine any witness in defence. The learned Trial Court after hearing the parties/convicted the accused-appellants as above. 3. I have heard the arguments of learned counsel for the appellants and the learned Public Prosecutor appearing for the respondent-State as also perused the record of the case. It was not disputed at the time of arguments that Kalu had met homicidal death. 4. The learned counsel for the appellants has contended that in view of the fact that FIR was lodged after 22 hours and it also did not reach the Magistrate forthwith and that its maker has not supported the prosecution story, the learned trial Court has erred in convicting the accused-appellants in this case. He has submitted that name of Chhotu Ram alleged eye witness did' not find place in the FIR (Ex. P. 8) and hence it should be presumed that he had not witnessed the occurrence. He took me through the statements of PW 2 Bhagirath and PW 12 Tiku Ram, in order to show that there are material contradictions in their statements. The learned counsel for the appellants also submitted that the prosecution has not established motive in this case. According to him, it were Bhagirath and Tiku Ram who could be interested in the death of Kalu Ram as Bhagirath was in possession of the property of Kalu Ram. 5. The learned counsel for the State has tried to support the Judgment of trial Court. 6. I have considered the rival submissions made at the bar. It is true that mere delay in lodging the FIR and not mentioning the name of eye-witness therein do not by themselves render the prosecution case unbelievable. However, they are important factors which are to be kept in view while scrutinising the evidence. 7. In the instant case, the prosecution version was that the occurrence was witnessed by Beg Raj PW 4. The FIR was also recorded in such a manner as if Beg Raj was himself the eye witness to the occurrence. But he has not supported the prosecution story. 7. In the instant case, the prosecution version was that the occurrence was witnessed by Beg Raj PW 4. The FIR was also recorded in such a manner as if Beg Raj was himself the eye witness to the occurrence. But he has not supported the prosecution story. If Beg Raj had seen the occurrence, there was no reason as to why he would not have approached the police station which was situate hardly 6 miles away from the place of occurrence on that very day. It may be true that Beg Raj and others could be worried for the treatment of Kalu Ram, but there was no reason for not taking deceased Kalu Ram to village Ghamudwali where there was police station as well as Government hospital. PW 3 Ramkishan, Sarpanch of the village in cross- examination has stated that police station was situate 15 kms from the place of occurrence and there was Government hospital also. His this part of statement that sometimes doctors were not available at village Ghamudwali, can hardly help the prosecution, when Padampur and Ghamudwali both are situate almost at the same distance from the place of occurrence. By going to Ghamudwali both the purposes i.e. lodging of the FIR and treatment would have served. However, Beg Raj did not lodged the FIR before 22 hours. Apart from this, Kalu Ram (deceased) used to live with Bhagirath for the last about 10 to 12 years. Thus Bhagirath was as a matter of fact his most well-wisher. It is rather surprising that Bhagirath did not care to lodge the FIR. It is significant to point-out that even at Padampur hospital, the police had reached. This fact is admitted by Bhagirath (PW 2). He has also admitted that Beg Raj was also present there. Chhotu Ram (PW 1) was also present there. It is rather surprising that none of them cared to tell the police that some occurrence had taken place and the accused were the persons who had inflicted blows on Kalu Ram. This is not a case of the type where persons who had seen the occurrence had inimical terms with the deceased. In such circumstances, the delay in lodging the FIR to the police of 22 hours is certainly fatal to the prosecution case. This is not a case of the type where persons who had seen the occurrence had inimical terms with the deceased. In such circumstances, the delay in lodging the FIR to the police of 22 hours is certainly fatal to the prosecution case. It may be stated here that Beg Raj who is said to have lodged the FIR has denied to have seen the occurrence. He has said that he had only put his thumb impression on the report at the instance of the police and that the report was not read-over to him. Beg Raj is none else than real nephew of the deceased. Had he seen the occurrence and lodged the FIR, there would not have been occasion for him to resile from the prosecution version. 8. The learned trial Judge has placed reliance on the testimony of Chhotu Ram (PW 1). The name of Chhotu Ram does not find place in the FIR which was lodged some 22 hours after the occurrence. No explanation whatsoever has been given by the prosecution for act disclosing his name in the FIR. It is significant to point out that prosecution version was that Chhotu Ram was the first person who had reached the place of occurrence and saw the infliction of blows by the accused and Bhagirath and Tiku Ram came after wards. In these circumstances, non-mentioning of the name of Chhotu Ram in the FIR is of much consequence. It appears that by the time Bhagirath took Beg Raj to Police Station to lodge the report Ex. P-8, Chhotu Ram had not been contacted to support the prosecution story. 9. Chhotu Ram PW 1 has stated in examination in chief that Budh Ram had abused Kalu Ram and Sarvan Kumar had inflicted 4-5 injuries by Kasia on his head and at that very time, Bhagirath and Tiku Ram had also reached there and they told that why accused were beating to Kalu Ram. Thus according to statement given by Chhotu Ram in examination in chief, Bhagirath and Tiku Ram had intervened in the occurrence by telling the accused as to why they were beating Kalu Ram. However, in his cross-examination, he has stated that when Bhagirath and Tiku Ram came, accused were running and they were one bigha away from the place of occurrence. However, in his cross-examination, he has stated that when Bhagirath and Tiku Ram came, accused were running and they were one bigha away from the place of occurrence. If this part of statement of cross-examination is correct, then his assertion that Bhagirath and Tiku Ram had told the accused as to why they were beating Kalu Ram, cannot be believed. It is significant to point-out that Bhagirath (PW 2) and Tiku Ram (PW 12) have nowhere stated that they had seen the accused inflicting injuries or that they had asked accused as to why they were beating Kalu Ram. This witness is a postman and he has stated that he was returning to his home after distributing the `Dak'. It cannot be believed that postman would deliver the `Dak' upto 5.40 p.m. that time i.e. after the close of office hours and when the sun was going to set. He has not been able to say as to in whose house he had delivered the `Dak' on that day. It is true that it is not possible for a postman to say about the particulars of the `Dak' distribution of a day, but when incident of murder had taken place on that day, it cannot be believed that Chhotu would forget the names of person whom he had delivered the Dak on that day. It is relevant to mention here that statement of Chhotu Ram was receded in the Court within six months from the date of occurrence. Had it been correct that Chhotu had distributed the Dak on that day and he was going to his house at the time of occurrence, he would have certainly given the particulars of Dak distribution. Looking to the fact that his name does not find place in the FIR and he did not care to inform the Padampur Police in the hospital where he was present according to Bhagirath PW 2, it cannot be accepted that he had seen the occurrence. It is also noteworthy that when he was put question regarding the presence of Beg Raj at the place of occurrence, he first told that he was not aware whether Beg Raj was there or not. Bhagirath and Tiku Ram have deposed that Beg Raj was also there. Chhotu Ram has of course changed the version and deposed that Beg Raj came, but he came after Bhagirath and Tiku Ram. Bhagirath and Tiku Ram have deposed that Beg Raj was also there. Chhotu Ram has of course changed the version and deposed that Beg Raj came, but he came after Bhagirath and Tiku Ram. It may also be noted that Bhagirath has not deposed that Chhotu Ram had disclosed the names of the assailants though according to him Chhotu Ram had reached the place of occurrence before he went there. The fact that Chhotu Ram did not relate the occurrence to Bhagirath and Tiku Ram goes to show that he had himself not seen the occurrence. Tiku Ram (PW 12) has deposed to have gone to the place of occurrence alongwith Bhagirath. He has stated that when he reached there, he saw Beg Raj standing there and Kalu Ram in injured condition. According to him, Chhotu Ram came thereafter. Beg Raj has stated that Chhotu Ram had not come to the place of occurrence. It is thus manifest that Chhotu Ram had no occasion to witness the occurrence and he has given false statement that he had seen the accused inflicting blows to Kalu Ram. 10. Now we are left with the statements of Bhagirath (PW 2) and Tiku Ram (PW 12). Both of them have deposed to have gone to the place of occurrence together According to them, they had come from Padampur and were going to their houses. They have deposed that when sun was setting, they heard cries and hence they went towards the place from where the cry was coming and they saw that Kalu Ram was lying on the ground and accused Sarvan Kumar having Kasia in his hand and Budh Ram having Lathi in his hand, were going. Bhagirath has stated that Beg Raj told that Budh Ram and Sarvan Kumar had given beatings to Kalu Ram. Statement of Bhagirath clearly shows that he had himself not seen the occurrence and that it was Beg Raj, who had told him (hat the accused had beaten Kalu Ram. It has already been stated that Beg Raj (PW 4) has not supported the prosecution case. That being so, it cannot be believed that Bhagirath and Tiku Ram could be informed by Beg Raj, immediately after the occurrence that accused had given beatings to Kalu Ram. According to Bhagirathand Tiku Ram, they had seen the accused going towards their house having Kasia and Lathi in their hands. That being so, it cannot be believed that Bhagirath and Tiku Ram could be informed by Beg Raj, immediately after the occurrence that accused had given beatings to Kalu Ram. According to Bhagirathand Tiku Ram, they had seen the accused going towards their house having Kasia and Lathi in their hands. Such articles are usually kept by the villagers when they return to their houses in the evening. It is significant to point out that Bhagirath and Tiku Ram have not stated that the accused were running. By the going of the accused towards their house, which was situate at some distance only from the place of occurrence, it cannot be inferred that they had given beatings. As a matter of fact this fact also does not seem to be correct that Tiku Ram and Bhagirath had seen the accused going to their houses. If this had been true, Bhagirath would have himself lodged the FIR in the police immediately since Kalu Ram was living with him for more than 10 years. 11. A reading of the statements of witnesses shows that there are material contradictions in their statements. According to Chhotu Ram (PW 1) after sustaining 2-3 injuries, the deceased had fallen down off the tricycle. However, when Tiku Ram (PW 12) was put questions regarding tricycle, he first stated that he did not see tricycle at the place of occurrence. He then changed his version and told that Kalu Ram was lying on the tricycle itself. Thus according to this statement, Kalu Ram had not fallen on the ground and was lying on the tricycle itself. When a similar question was put to Bhagirath (PW 2), he stated that he could not know at the place of occurrence, as to whether injuries were inflicted on Kalu Ram while he was sitting on the tricycle or he was given blows when he was not on the cycle. He has stated that the tricycle was standing there. However, the witness had not stated in the statement Ex. D-2 recorded during investigation that the tricycle was seen by him at the place of occurrence. Thus regarding position of Kalu Ram, there are material contradictions in the statement of three so called eye witnesses. It shows that they had gone to the place of occurrence after they came to know that Kalu Ram was lying in injured condition. D-2 recorded during investigation that the tricycle was seen by him at the place of occurrence. Thus regarding position of Kalu Ram, there are material contradictions in the statement of three so called eye witnesses. It shows that they had gone to the place of occurrence after they came to know that Kalu Ram was lying in injured condition. They took him to hospital at Padampur but by that time, they were not aware of the persons who had inflicted blows on Kalu Ram. The falsity of the FIR can be judged by this fact that it was stated therein that Tiku Ram and Bhagirath had challenged the accused and thereafter they had run away from the place of occurrence. This version is not supported by Chhotu Ram (PW 1), Bhagirath (PW 2), Beg Raj (PW 4) and Tiku Ram (PW 12). 12. Coming to the motive for the crime, it is not understandable as to why the accused who were the nearest relation of Kalu Ram would think of killing him. PW 12 Tiku Ram has stated that there was some enmity between the deceased and the accused. However the witness had not disclosed this fact in his police statement Ex., D-4. Then he has not given the reasons of enmity. In such circumstances, it is difficult to hold that there was enmity between the deceased and the accused. In the FIR, it was stated that Sriram had abused Kalu Ram at the house of Bhagirath when Kalu Ram had gone to Ganganagar and when he came back, he was informed about the abuses and, therefore, he went to the house of Sriram. By this fact at best it can be presumed that relations of Sriram and the deceased were not good. It is not understood as to why Budh Ram and Sarvan Kumar could think of killing Kalu Ram. No other evidence has been produced to prove motive. That being so, it has to be held that there was no motive for the accused to kill Kalu Ram. On the other hand, it is an admitted fact that deceased lived with Bhagirath. In the cross-examination of Bhagirath, questions have been put that Kalu Ram had sold his land for Rs. 80,000/- and that amount was lying with him. That being so, it has to be held that there was no motive for the accused to kill Kalu Ram. On the other hand, it is an admitted fact that deceased lived with Bhagirath. In the cross-examination of Bhagirath, questions have been put that Kalu Ram had sold his land for Rs. 80,000/- and that amount was lying with him. It has been admitted by Bhagirath that Kalu Ram did sell his land, but according to him, he had entered into an agreement of land in Khajuwala. The possibility that the amount collected by the deceased by selling his land which was of the order of Rs. 80,000 was with Bhagirath and he could be interested in the death of Kalu Ram, cannot altogether ruled out. 13. The prosecution had relied on the recovery of Kasia at the instance of accused Sarvan Kumar. According to the prosecution, there was blood marks on the Kasia. The same was sent for chemical examination. However, the report of the State Forensic Science Laboratory has not been produced on record. By with holding of the report of the laboratory, it has to be presumed that it was negative report. No other evidence has been produced by the prosecution. Once we disbelieve the evidence of Chhotu Ram, Bhagirath and Tiku Ram, there remains hardly any evidence connecting the accused with the murder of Kalu. 14. I have, therefore, no hesitation in holding that the learned trial Court has erred in convicting the accused on the basis of the evidence produced in the case. 15. The result, therefore, is that this appeal succeeds. The conviction of appellants Sarvan Kumar and Budh Ram is set aside and they are acquitted of the offence under Section 304 Indian Penal Code. They are in jail. They shall be released forthwith, if not required in any other case.Appeal allowed. *******