JUDGMENT 1. - These two appeals arise out of the same incident that took place on 24.1.1982 at 10.00 p.m. at Chak 34 SSW in District Hanumangarh and against which FIR No. 8 dated 25.1.1982 was filed at Police Station, Hanumangarh and so, they were heard together and are being disposed of by a common judgment. 2. D.B. Criminal Appeal No. 140 of 1983 is directed against the judgment of the learned Addl. Sessions Judge No. 1, Hanumangarh dated 6.4.1983 whereby accused-appellant Baburam was held guilty of the offence under Section 302/109 Indian Penal Code and was sentenced to rigorous imprisonment for life. D.B. Criminal Appeal No. 465 of 1987 is directed against the judgment dated 12.11.1987 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh whereby accused-appellant Bogasingh was convicted for the offences under Sections 302 and 307 Indian Penal Code and Section 27 of the Arms Act and was sentenced to imprisonment for life together with a fine of Rs. 500/-, in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 302 Indian Penal Code, to five years rigorous imprisonment together with a fine of Rs. 500/-, in default of payment of fine to undergo rigorous imprisonment for three months for the offence under Section 307 Indian Penal Code; and to three years rigorous imprisonment together with a fine of Rs. 300/-, in default of payment of fine to undergo rigorous imprisonment for two months for the offence under Section 27 of the Arms Act. All the substantive sentences were ordered to run concurrently. 3. Briefly stated the facts of this case as revealed from the FIR and the evidence of the prosecution witnesses is that on 25.1.1982 at about 7.00 a.m., Darshansingh lodged the FIR at Police Station, Hanumangarh with regard to the occurrence that took place on 24.1.1982 at 10.00 p.m. in Chak 34 SSW, District Hanumangarh near Killa No. 20 of Murabba No. 39 as depicted in Site Plan Ex. P. 2. It is alleged that P.W. 1 Darshansingh and his uncle Telusingh left their house for the field which was irrigated as per Barabhandi at 11.20 p.m. on the date of the occurrence. PW 1 Darshansingh has stated that the land was owned and possessed by Gurdeepsingh, Mandarsingh and Preetamsingh. This land was measuring about 121/2 bighas and is situated in Chak 34 SSW. PW 1 Darshansingh has stated that the land was owned and possessed by Gurdeepsingh, Mandarsingh and Preetamsingh. This land was measuring about 121/2 bighas and is situated in Chak 34 SSW. It was purchased from Thanasingh and Mst. Basantkaur. According to PW 1 Darshan Singh, accused Boga Singh wanted to forcibly occupy the above land. There was some quarrel with regard to the above land and deceased Telusingh lodged a criminal complaint against accused Bogasingh and others. 4. PW 1 Darshan Singh has further stated that when he and Telusingh reached near Killa No. 20 of Murrabha No. 39, accused Bogasingh and Baburam, who were hiding themselves in the water course, challenged them. On this, Telusingh moved backward but he was hit by the pallets fired by accused Bogasingh from his 12 bore gun. According to PW 1 Darshansingh, accused Bogasingh was instigated by accused Baburam to fire the shots at Telusingh. Telusingh fell down and the pallets entered both of his eyes. There was massive haemorrhage. 5. It is alleged that thereafter, PW 1 Darshansingh contacted PW 2 Thanasingh and PW 3 Jangirsingh who were irrigating their land near to the place of the occurrence. Darshansingh narrated the whole incident to them.They offered to render help and then all the three viz., Darshan Singh, Thanasingh and Jangirsingh reached Telusingh and after tying the wounds with the turbans of Thanasingh and Telusingh, PW 2 Thanasingh physically lifted Telusingh and started for their Chak but when they hardly reached the eastern corner of Killa No. 20, accused-appellants Bogasingh and Baburam again challenged them and with an intention to murder them, accused Bogasingh fired the gun twice on them. The pallets hit PW 2 Thanasingh, PW 1 Darshan Singh and PW3 Jangirsingh. This terrified them and PW 2 Thanasingh and PW 3 Jangirsingh ran for their Dhani and PW 1 Darshan Singh also reached his Dhani. 6. Since PW 1 Darshansingh was very much terrified of the accused, he did not lodge the FIR immediately but started for police station on 25.1.1982 at 3.00 a.m. and eventually, the FIR was lodged at police station, Hanumangarh on 25.1.1982 at 7.00 a.m. 7. On receipt of the above report, the police registered a case under Sections 302 and 307/34 Indian Penal Code and 27 of the Arms Act and started investigation. The site was inspected and site plan and site inspection memo were prepared. On receipt of the above report, the police registered a case under Sections 302 and 307/34 Indian Penal Code and 27 of the Arms Act and started investigation. The site was inspected and site plan and site inspection memo were prepared. The blood stained and controlled soil were collected and sealed. The postmortem examination of the dead body of the Telusingh was got conducted by PW 4 Dr. Narendra Godara. 8. According to PW 4 Dr. Narendra Godara, Telusingh died due to shock on account of haemorrhage as a result of fire-arm injury. The injuries of PW 1 Darshansingh, PW 2 Thanasingh and PW 3 Jangirsingh were also got examined and their injury report are Ex. Ps. 26,27 and 28 respectively. 9. It may be stated that after the commission of the above offence, accused Bogasingh absconded and so, accused Babulal was only tried by the learned Addl. Sessions Judge No. 1, Hanumangarh. After the accused-appellant Baburam was convicted and sentenced as aforesaid by the learned Addl. Sessions Judge No. 1, Hanumangarh, accused Bogasingh surrendered before the Court and he was tried by the learned Addl. Sessions Judge No. 2, Hanumangarh. After trial, the learned Addl. Sessions Judge No. 2, Hanumangarh convicted and sentenced the accused-appellant Bogasingh as aforesaid. 10. We have heard Mr. Bhagwati Pd., learned counsel for accused-appellant Baburam; Mr. H.S. Kharlia, learned counsel for accused-appellant Bogasingh and Mrs. Chandralekha, learned Public Prosecutor appearing for the State and have carefully gone through the record of the case. 11. The learned counsel appearing for the accused-appellants have very vehemently attacked the prosecution case and after referring to the ocular evidence, argued that the whole case has been concocted. In the first instance, they attacked the FIR on the ground that it was lodged by PW 1 Darshansingh with delay and the delay in lodging the FIR late has not been satisfactorily explained. 12. It was contended that the SHO was bound to forward the FIR to the concerned Magistrate forthwith but in this case, it is surprising that though the FIR was lodged on 25.1.1982 at 7.00 a.m., it reached the concerned Magistrate on 27.1.1982 and virtually all the important steps in the investigation were completed before the FIR reached the concerned Magistrate. It was contended that the SHO was bound to forward the FIR to the concerned Magistrate forthwith but in this case, it is surprising that though the FIR was lodged on 25.1.1982 at 7.00 a.m., it reached the concerned Magistrate on 27.1.1982 and virtually all the important steps in the investigation were completed before the FIR reached the concerned Magistrate. According to the learned counsel, the Investigation Officer has not cared to submit any explanation for this inordinate delay in forwarding the FIR to the concerned Magistrate. 13. It was further contended that the FIR was a cooked up document. According to the learned counsel, the FIR was a concocted piece-of document which was prepared after reviewing the whole prosecution story and modulating the same according to the convenience of the police. It was submitted that this delay becomes very material once the whole facts and circumstances Of the case are reviewed in correct perspective. Admittedly the night was dark and the visibility with any illumination was nil. According to PW 1 Darshansingh, the accused-persons were hiding themselves in the water course. The depth of the water course was 3 feet. At that time, there was no water in the above water course. On the bank of the water course, Bansariya was lying upto the height of 3 ft. Thus, the accused-persons were hiding themselves in the above water course, which provided them the depth of 6 feets. Thus, it was impossible for PW 1 Darshansingh, PW 2 Thanasingh and PW 3 Jangir Singh to have identified the accused-persons. It is also surprising how the accused-persons spotted and targeted Telusingh and Darshansingh in the total dark night. However, in order to over come this fatal lacunae, the prosecution has introduced two torches : one owned by PW 1 Darshansingh and the other owned by PW 2 Thanasingh but during investigation, these witnesses did not utter a single word about this fact in their statements recorded under Section 164 Criminal Procedure Code. Even in the FIR, there is a vital omission of this material fact. It was, therefore, submitted that there is not an iota of evidence to connect that accused-persons with the commission of this crime. 14. Mrs. Chandralekha, the learned Public Prosecutor appearing for the State has supported the judgments of the learned trial Courts. Even in the FIR, there is a vital omission of this material fact. It was, therefore, submitted that there is not an iota of evidence to connect that accused-persons with the commission of this crime. 14. Mrs. Chandralekha, the learned Public Prosecutor appearing for the State has supported the judgments of the learned trial Courts. She also referred to the prosecution evidence and relied on the details reasons advanced by the learned trial Judges. 15. We have considered the rival submissions made at the bar and have critically gone through the evidence on record. 16. At the outset, we may state that the fact that Telusingh died on account of receiving fire-arm injuries has not been disputed. According to PW 7 Dr. Narendra Godara, as many as 30 wounds were caused by pallets fire from 12 bore gun. The injuries sustained by pallets resulted in severe haemorrhage and ultimately in the death of Telusingh. Hence it is an established fact that Telusingh met an homicidal death. 17. Now the question which crops up for determination is whether the accused-appellants Baburam and Bogasingh are guilty of the offences under Sections 302/109 Indian Penal Code and 302 and 307 Indian Penal Code and 27 of the Arms Act respectively. 18. The whole prosecution case depends upon the oral testimony of PW 1 Darshansingh and some material corroboration afforded by PW 2 Thanasingh and PW 3 Jangirsingh. PW 1 Darshansingh has stated that on the date of the occurrence, he and his uncle Telusingh left their house for their field to avail the irrigation facility and when they reached near Killa No. 20 of Murabba No. 39, they heard both the accused-persons talking with each other. Accused Baburam instigated accused Bogasingh to fire at the enemy. Upon this, Bogasingh actually fired the 12 bore gun which hit Telusingh on his thighs and scrottum region. As a result of the above injuries, Telusingh fell down. Darshansingh went in search of some assistance and he met PW 2 Thanasingh and PW 3 Jangirsingh who were also working in the fields nearby. Darshansingh apprised them of the incident and sought their-help. Thereafter, Darshansingh, Jangirsingh and Thanasingh came to the place of the occurrence. They saw that Telusingh was lying their and his wounds were bleeding profusedly. Darshansingh went in search of some assistance and he met PW 2 Thanasingh and PW 3 Jangirsingh who were also working in the fields nearby. Darshansingh apprised them of the incident and sought their-help. Thereafter, Darshansingh, Jangirsingh and Thanasingh came to the place of the occurrence. They saw that Telusingh was lying their and his wounds were bleeding profusedly. They immediately tied his things with the turbans of Telusingh and Thanasingh, Thanasingh then physically lifted Telusingh and proceeded to obtain some medical assistance but when they hardly proceeded a little further, accused appellants Baburam and Bogasingh accosted and accused Bogasingh again fired his 12 bore gun twice at Darshansingh. Jangirsingh and Thanasingh, as a result of which they received some simple pallet-injuries. They became terrified and left Telusingh at the place of the occurrence, they escaped to their Dhanies. Darshansingh also went to his Dhani which was on the same land. He did not lodge the first information report as he was very much afraid of the accused-Persons. He, therefore, left his Dhani on the next morning at about 3.00 a.m. and by availing the lift in a tractor, he reached the Police Station and lodged the FIR. He has stated that he identified the accused-persons by voice and also in the light of the torch. He has stated that he was having a torch with him. 19. PW 2 Thanasingh has stated that before Darshansingh came to them, he heard the cries `MARO MARO'. Darshansingh came and narrated the entire incident to him and PW 3 Jangirsingh. He and Jangirsingh accompanied Darshansingh to the place of the occurrence where injured Telusingh was lying. They tied the thighs of Telusingh by the turbans of Telusingh and Thanasingh because the injuries received on his thighs were bleeding profusedly. He then physically lifted Telusingh and when they hardly proceeded a title further, they were accosted by the accused-persons. Bogasingh again fired twice on them. They sustained pallets-injuries. They became terrified and so, Thanasingh and Jangirsingh took their heels and went to their Dhanies and Darshansingh also rushed to his Dhani. PW 2 Thanasingh has turned hostile. 20. PW 3 Jangirsingh has also made a similar statement but it is important to mention here that when he was asked to identify accused Baburam in the Court, he could not identify him. He has also turned hostile. 21. PW 2 Thanasingh has turned hostile. 20. PW 3 Jangirsingh has also made a similar statement but it is important to mention here that when he was asked to identify accused Baburam in the Court, he could not identify him. He has also turned hostile. 21. After carefully considering the whole prosecution evidence adduced in these cases, we are not satisfied that the correct version of the incident is available in the testimony of PW 1 Darshansingh, PW 2 Thanasingh and PW 3 Jangirsingh. 22. In the first instance, we may consider this fact that when there was a total darkness at the time of the occurrence, how the accused-persons or PW 1 Darshansingh and Telusingh identified one another. PW 1 Darshansingh has not explained how he could identify the accused-persons when as per him, the accused-persons were hiding themselves in the water course behind the heap of Bansariya. Had Darshansingh identified the accused-persons by voice, he ought to have given this statement when he was examined by the Police. He, however, introduced the element of torch. Not only in the FIR but also in his statement recorded by the police, there is no mention of this fact that he was having a torch with him. Even from the prosecution evidence, it is not clear that in the total darkness at the time of the occurrence, how the accused-persons identified Telusingh and Darshansingh when they themselves were hiding in the watercourse behind the heap of Bansariya. PW 2 Thanasingh and PW 3 Jangirsingh have also not fully supported PW 1 Darshansingh. Neither in the FIR nor in the statements recorded by the Police, PW 1 Darshansingh has not alleged that a torch was supplied to the accused-persons or the victims. He has also not stated that the accused-persons were having a torch with them. 23. There is also material difference in the testimony of the prosecution witnesses as to what words were uttered by accused Baburam when he exhorted Bogasingh to fire at Telusingh and Darshansingh. Different witnesses have given different versions. When as per the prosecution witnesses, accused Bogasingh and Baburam were hiding themselves in the water course behind the heap of Bansariya for the purpose of committing the murder of Telusingh and Darshansingh, then there was no need of any exhortation from the side of accused Baburam to accused Bogasingh to fire at Telusingh and Darshansingh. When as per the prosecution witnesses, accused Bogasingh and Baburam were hiding themselves in the water course behind the heap of Bansariya for the purpose of committing the murder of Telusingh and Darshansingh, then there was no need of any exhortation from the side of accused Baburam to accused Bogasingh to fire at Telusingh and Darshansingh. Hence it cannot be ruled out that PW 1 Darshansingh has tried to connect this part of the evidence in order to implicate accused Baburam besides accused Bogasingh. Even the evidence regarding identification of the accused-persons by PW 1 Darshansingh and Telusingh and vice versa is also doubtful and unbelievable. 24. If we examine the FIR in this back ground, it is crystal clear that the FIR was not lodged immediately. The occurrence took place at about 10.00 p.m. on the date of the incident whereas the FIR was lodged at about 7.00 a.m. on the next morning. The stand taken by PW 1 Darshansingh that he became terrified and so, he left Telusingh and rushed to his Dhani, which is also situated on the same land, where the occurrence took place appears to be not genuine because as per PW 1 Darshansingh, he left his Dhani at about 3.00 a.m. for the Police Station. When Darshansingh could dare to leave his Dhani in that dead hour of the night, how could one believe that he was apprehensive of his safety. Hence we are satisfied that the prosecution has failed to furnish any explanation regarding delay in lodging the FIR. 25. The prosecution has also failed to furnish any explanation regarding sending the FIR late to the concerned Magistrate. In this case, the incident took place on 24.1.1982 at 10.00 p.m. and the FIR was lodged on 25.1.1982 at 7.00 a.m. whereas the FIR was delivered to the concerned Magistrate on 27.1.1982. Even on Holidays, the FIR could be delivered to the concerned Magistrate at his residence. Hence, the extra ordinary delay in sending the FIR to the concerned Magistrate is also a circumstance which creates a legitimate doubt for suspecting that the FIR was recorded much later than the stated day and hour after affording sufficient time to the prosecution to introduce improvements and embellishment and set up a distorted version of the occurrence. In such a case, the evidence of the eye-witnesses cannot be accepted at its face value. 26. In such a case, the evidence of the eye-witnesses cannot be accepted at its face value. 26. For the reasons stated hereinabove, we are firmly of the view that on the basis of the above prosecution evidence, the accused- appellants cannot be held guilty of the aforesaid offences and hence they deserve acquittal of the aforesaid offences. 27. In the result, we allow these appeals and set aside the conviction and sentences recorded against the accused-appellants Baburam and Bogasingh for the offences under Sections 302/109 and 302 and 307 Indian Penal Code and 27 Arms Act respectively. They are acquitted of the above offences. The accused-appellant Baburam is on bail. He need not surrender to his bail-bonds. The accused-appellant Bogasingh is in custody. He be released forthwith, if his detention is not required in any other case.Let the record of this case be sent back to the learned lower Court forthwith.Appeals allowed. *******