Judgment GOPAL LAL GUPTA, J. ( 1 ) HARISH Chandra Pappu stands convicted by the learned Sessions Judge, Sirohi under Sec. 302 IPC. He was sentenced to undergo imprisonment for life and pay a fine of Rs. 100/-; in default to further undergo 15 days rigorous imprisonment. ( 2 ) THE case Telates to the murder of Hansia on 11. 8. 1990 in village Satpur. The prosecution case is that deceased Hansia was convicted for murdering one Bhika Lal. After undergoing the imprisonment he was released from Jail on 7. 9. 89. On the date of occurrence deceased Hansia was going on cycle towards his house at about 8. 15 AM. Accused who happens to be brother of Bhikalal, who was murdered by Hansia (deceased) followed him on the cycle and stabbed him in his back by knife. Hansia fell clown. Accused again inflicted knife blows on his chest stomach and right arm. The occurrence was witnessed by Laxmi Chand, brother of deceased Hansia as he was going to ease himself in the pond area. The FIR (Ex p. 23) was lodged by Laxmi Chand at 8. 40 AM. on which C. R. No. 228/90 was registered. In the FIR it was stated that because of the injuries caused by the accused. Hansia has died. The police inspected the site collected the material found at the spot interrogated the witnesses, arrested the accused and on his information recovered a knife and his clothes having blood marks. The post mortem of the body was conducted by Dr. Bhanwar Singh PW 14 who prepared the post mortem report Ex. p. 36. On the completion of investigation the challan was submitted. The learned Sessions Judge charged the accused with the offence under Sec. 302 IPC who pleaded not guilty. The prosecution examined P. W. 1 Shanker Lal, P. W. 2 Limba Ram. P. W. 3 Shanker Lal, P. W. 4 Rawatram, P. W. 5 Satish Chandra Gupta, P. W. 6 Laxmi Chand, P. W. 7 Ramchandra. P. W. 8 Gopsingh, P. W. 9 Poonam Singh, P. W. 10 Hansmukh Lal, PW. 11. Chandan Singh. PW. 12 Devendra Kumar Devilal. P. W. 13 Bhanwar Singh and P. W. 14 Dr. Bhanwar Singh. Accused in his statement recorded under Sec. 313 Cr. P. C. denied having committed any offence. He denied the recovery of knife or the clothes. P. W. 8 Gopsingh, P. W. 9 Poonam Singh, P. W. 10 Hansmukh Lal, PW. 11. Chandan Singh. PW. 12 Devendra Kumar Devilal. P. W. 13 Bhanwar Singh and P. W. 14 Dr. Bhanwar Singh. Accused in his statement recorded under Sec. 313 Cr. P. C. denied having committed any offence. He denied the recovery of knife or the clothes. The learned Sessions Judge however, believed the prosecution evidence and convicted and sentenced the accused as above. ( 3 ) WE have heard the arguments of learned counsel for the appellant and the learned Public Prosecutor appearing for the State respondent and perused the record of the case. ( 4 ) DR. Bhanwar Singh PW 4 while proving the post mortem report Ex. P. 36 has deposed that he had conducted Post mortem of the dead body of Hansia on 11. 8. 86 at 11. 10 AM. According to him, there were following ante mortem injuries on his person caused by sharp edged weapon and he had died of these injuries: (i) Incised wound: 1-1/4 x 1/2 x 1 oblique, on lateral aspect of the arm 3-1/2 above the elbow. (ii) Incised wound: 2 x 1/2 upto rib on left side of chest above areala upto pleural cavity. (iii) Incised wound: 1-1/2"x 1/41upto abdomenal cavity. (iv) Incised wound: 2-1/4x1/2x 1-1/2; oblique, on autrium aspect of right arm, 1 above elbow. (v) Incised wound: 1-3/4 x the middle part below the point of Rt. hand, little finger. (vi) Incised wound: 1-3/4 x 1/4 x 1/2; oblique on the eminence of left hand. (vii) Incised wound 2"x 1/2 upto kidney region on the left side of renal region just below the last rib i" away from vertebral column causing injury to kidney. (viii) Incised wound:, 1 x 1/10 x 1/4 oblique on left side of chin, in its middle. ( 5 ) LEARNED counsel for the appellant has not contested this fact that Hansia died of the injuries caused by sharp edged weapon. He has, however, pointed out that in the post mortem report, it is not stated that at what time the deceased had died and yet the doctor has deposed that deceased had died some 5 hours before examination at the same time admitting that there could be difference of one hour either way. On this evidence it has been contended that Hansia might have suffered injuries even before 6. On this evidence it has been contended that Hansia might have suffered injuries even before 6. 00 AM. and, therefore, the statement of Laxmi Chand should not be believed that he had seen the occurrence. Mr. Garg, has strenuously argued that only eye witness Laxmi Chand P. W. 6 examined in the case is made up witness and he had no occasion to witness the occurrence. He has further contended that the FIR is post investigation document and it was not lodged at 8. 40 AM. as is recorded on the FIE Ex p 23. Inviting our attention to this fact that the FIR, which was sent to the Magistrate, has not been proved on record, he has urged that by this it should be presumed that it was not sent to Magistrate forthwith. Regarding the recovery at the instance of accused, Mr. Garg pointed out that the independent witnesses have not supported the recovery and other evidence indicates that the knife was found at the spot. Regarding the human blood found on the clothes, the contention of Mr. Garg was that blood group of the accused has not been ascertained and, therefore, even on assuming that the clothes were that of the accused, the possibility that the blood found on them was that of the accused himself is always there. ( 6 ) THE learned Public Prosecutor, on the other hand, has urged that in this case, the FIR was lodged just within few minutes of the occurrence and the investigation was completed on the date of occurrence and, therefore, there could not be any occasion for concocting a false story and implicating the accused falsely. ( 7 ) WE have bestowed the contentions our thoughtful consideration. The FIR Ex. P. 23 is said to have been lodged at police station Abu Road just within few minutes of the occurrence and normally this is the strongest circumstance on which the prosecution version should be accepted. However, we will address ourselves on the various contentions raised by learned counsel for the appellant in order to ascertain whether Laxmi Chand had witnessed the occurrence and the FIR was lodged at the time it is said to have been lodged. However, we will address ourselves on the various contentions raised by learned counsel for the appellant in order to ascertain whether Laxmi Chand had witnessed the occurrence and the FIR was lodged at the time it is said to have been lodged. Laxmi Chand has deposed that he resided in village Satpur and his brother Hansia resided in village Abu Road and that at the time, he was going to ease himself on the pond area, he saw his brother coming on the cycle and as reached near the house of one Misraji, accused who was following Hansia (deceased) on a cycle inflicted a knife blow on the left back of Hansia and sustaining this injury, Hansia fell down. The witness has further deposed that the accused left his cycle and inflicted more blows by knife on the various parts of body of Hansia i. e. stomach, right elbow etc. He has also deposed that after causing injuries to Hansia, the accused ran away leaving his cycle there and he was witnessing this occurrence from the distance of 100 steps. ( 8 ) NOW on the basis of checks available on record, we have to scrutinise the evidence of Laxmi Chand. On reading the statement of this witness, it has to be accepted that the conduct of Laxmi Chand has been far from natural and as a matter of fact, he had no occasion to go to the place of occurrence. He has deposed that the place of occurrence from his house was some half a mile away and in between the place of occurrence and his house, there was pond. It may be stated here that according to Satish Chandra Gupta, Photographer P. W 5, the village Satpur was situate some 5 km. away from the place of occurrence. Laxmi Chand has verified the occurrence of the photographs Ex. P. 13 and Ex. P. 10 saying that there was pond on the left of the cluster of trees appearing in the photographs and that thereafter in the same direction his village Satpur was situate. It is thus obvious that when one goes from village Satpur to the pond, the investigation do not come in between and also the road does not come. Therefore it cannot be believed that the witness would cross over the pond and go ahead of the road. It is thus obvious that when one goes from village Satpur to the pond, the investigation do not come in between and also the road does not come. Therefore it cannot be believed that the witness would cross over the pond and go ahead of the road. It has come in the evidence of Shanker P. W. 1 that when the police had inspected the site, the pond was full of water and that it was in the area of about half a miles. Laxmi Chand has admitted that the villagers used to close themselves in the pond. It may be understood that easing place was near about the pond. When the water was available there at the place of easing, it cannot be believed that Laxmi Chand would cross over to the other side of the pond and even would go to the road. It is relevant to state that the witnesses had not stated in the police statement Ex. P-b that he had gone on the road. That being so, it has to be held that the witness had no occasion to go to the place of occurrence. ( 9 ) THE witness has admitted that he did not cry for help even on seeing the accused inflicting blows to his brother. He has even admitted that he had not seen Hansia by touching to know whether he was alive. The accused had already left the place of occurrence and therefore, in the natural course of human conduct the witness should have made cries seen the injuries of Hansia and called the persons living near the place of occurrence for help However the witness did nothing. The witness has admitted that he had seen Mishraji sitting outside his house when he proceeded to police station. The natural conduct of the witness should have been to take to Mishraji and tell him that just then the accused had run away causing injuries to his brother. The witness has also admitted that there was the house of Padma Gadoliya near the place of occurrence and there was floor mill also and at some distance there were residential houses of Ram Veersingh, Vikas Adhikari and Mohan Lal Chhipa. It is rather surprising that the witness did not challenge the accused when he was causing blows to his brother and also did not cry for help. It is rather surprising that the witness did not challenge the accused when he was causing blows to his brother and also did not cry for help. The conduct of witness in not making cry/noise and not contacting the persons available there and also not touching Hansia to see if he was alive, goes to show that he as a matter of fact had not seen the occurrence and is a made up witness. ( 10 ) ACCORDING to Laxmi Chand, he had gone to the police station sitting on a cycle of a passerby. He has admitted that he even did not talk to cycleman about the factum of murder. It may be that the cycleman had seen the person in injured condition but it was natural for the cycleman to have enquired to how it happened and at the same time, it was natural for the witness to have stated that the accused had committed that murder. However, the statement of Laxmi Chand indicates that he did not talk to the cycleman at all. He even did not ask his name. This circumstance further goes to show that whatever he has deposed is not correct and he has been planted as witness in this case. ( 11 ) THE FIR is Ex. P-23. The police recorded the FIR in prescribed proforma which is Ex. P-35. The circumstances appearing on record indicate that the FIR which is said to have been recorded immediately after the occurrence, was, as a matter of fact, not recorded at that time and it is a post investigation document. ( 12 ) THE FIR Ex. P-23 bears signatures of Laxmi Chand P. W. 6 at two places. Laxmi Chand that he had but second signatures A to B on Ex P-23 after the SHO had visited site and returned to the police station A reading of the endorsement I to J on Ex P-36 indicates that Laxmi Chand had produced the FIR at 8. 40 mitigate the matter. This endorsement thus purports to have been made immediately after lodging the FIR. However, the admission of fact by Laxmi Chand that the SHO got his second signatures A to Below this endorsement after the SHO had visited site goes to show that this endorsement was a matter of fact recorded after the initial investigation had taken place. Of course Bhanwar Singh (PW. However, the admission of fact by Laxmi Chand that the SHO got his second signatures A to Below this endorsement after the SHO had visited site goes to show that this endorsement was a matter of fact recorded after the initial investigation had taken place. Of course Bhanwar Singh (PW. 13) his denied to have recorded the endorsement after inspecting the site but in view of the fact that Laxmi Chand has deposed that his signalmen were obtained below this encirclement after the site inspection, it leads us to infer that Bhanwar Singh has given incorrect statement. ( 13 ) IT is also significant to point out that on none of the documents prepared by Bhanwar Singh (P. W.-13), 1. 0. , the time and date were recorded. The site inspection memo Ex P-1, memo of dead body Ex. P-2, Inquest report Ex. P-3, dead-body delivery memo Ex. P-4 do not bear the date and the time of their recording When the attention of Bhanwar Singh was drawn towards this fact, he could not give any explanation. Not mentioning of the date and time on the documents coupled with the admission of the fact by Laxmi Chand as stated above, lead us to infer that the time was not mentioned on these documents deliberately, so that the fact that the FIR was recorded after the preparation of these documents may not be detected. ( 14 ) THERE is yet one circumstance which strengthen the defence argument that the FIR was not lodged at the time recorded on it. Ex. P-35 is said to be the FIR forwarded to the Magistrate. This FIR does not bear the endorsement of the office of the Magistrate concerned. By this, it can certainly be said that FIR was not forwarded to the Magistrate forthwith as required in See. 157 Cr. P. C. and this FIR was filed along with the challan. Bhemwar Singh (PW-13) has not been able to empiricism to why this FIR Ex. P-35 does not bear endorsement of the Magistrate. Had there been endorsement of the Magistrate on Ex. P-35 mentioning date 11. 8. 90 and time of its receipt, it could be found on that basis that the FIR Ex. P-28 was lodged atleast on 11. 8. 90. ( 15 ) LAXMI Chand has deposed that he got the FIR Ex. P-35 does not bear endorsement of the Magistrate. Had there been endorsement of the Magistrate on Ex. P-35 mentioning date 11. 8. 90 and time of its receipt, it could be found on that basis that the FIR Ex. P-28 was lodged atleast on 11. 8. 90. ( 15 ) LAXMI Chand has deposed that he got the FIR Ex. P-23 written by someone sitting on the shop of typist and this shop was situate some 300 yards away the police station It is rather surprising that instead of immediately entering into the police station, the witness took a pen and paper from the shop and took steps of getting it written by someone. At that time the mental condition of the witness should have been such as to take him to the police station immediately and give verbal information of whatever he had seen. The very fact that he did not enter the police station and chose to get a report written by someone goes to show that he had himself not seen the occurrence. ( 16 ) THE witness has deposed that the accused had given threatening to his brother Hansia on 13. 9. 89 and that his brother had reported the matter to the police on that very day. However, that report has not seen the light of the day. It is significant to point out that neither in the FIR Ex. P-23 nor in the police statement this important fact of threatening was disclosed by the witness. Obviously the witness has made improvement. Looking to the abnormal conduct of the witness, pointed out above, and the important omission in the FIR and statement Ex. P-1 which certainly amounts to contradiction, it is difficult to place implicit reliance on his testimony. ( 17 ) THEN it is obvious that the witness does not give much weight to the oath. When the Public Prosecutor asked him whether he could identify the knife with which injuries were inflicted, his reply was in the negative. But at the same time, when the knife was shown to him, he identified it as a weapon of offence. This renders his testimony unworthy of credence. It appears that after Laxmi Chand came to know of the fact that Hansia was murdered and after the police made initial investigation, he lodged the report Ex. But at the same time, when the knife was shown to him, he identified it as a weapon of offence. This renders his testimony unworthy of credence. It appears that after Laxmi Chand came to know of the fact that Hansia was murdered and after the police made initial investigation, he lodged the report Ex. P-23 implicating the accused in this case in the back-ground of the strained relations of the two families. ( 18 ) THE prosecution examined PW-7 Ram Chand as eye witness to the occurrence. However, he has denied to have seen the occurrence. The witness has denied to have given statement before the police wherein it was stated that he had seen the accused causing injuries by knife to Hansia while sitting outside the floor mill and that he had seen Laxmi Chand also there. ( 19 ) THE prosecution had relied on the recovery of blood stained clothes and blood stained knife at the instance of the accused. To prove the recovery P. W.-11 Chandan Singh, Dy. S. P. , PW-3 Shanker Lal and P. W. 4 Rawat Ram were examined. Chandan Singh P. W. 11 has deposed that the accused had given him the information Ex. P-33 that he had kept the blood-stained clothes and blood stained knife in his house, and that thereafter he got the articles recovered which were seized vide memo Ex. P-7. The accused has denied the recovery. Both the motbir witnesses P. W. 3 Shanker Lal and P. W. 4 Rawat Ram have not supported the recovery. They have, of course, admitted their signatures on the memo Ex. p. 7, but they have deposed that the article were not recovered in their presence. Thus the recovery is not supported by independent evidence. That apart, the said information memo Ex. P-33 does not bear the signatures of the accused nor does the recovery memo Ex. P7. When the information memo and the recovery memo do not bear the signature of the accused, the recovery at the instance of accused cannot be believed. More so the motbirs have not supported the recovery. ( 20 ) THERE is yet one more circumstance which goes to show that the knife and the clothes were not recovered in consequence of the disclosure statement of the accused. More so the motbirs have not supported the recovery. ( 20 ) THERE is yet one more circumstance which goes to show that the knife and the clothes were not recovered in consequence of the disclosure statement of the accused. P. W. 8 Gopsingh, ASI Incharge of Malkhana, Police Station Abu Road has deposed that he was handed over 5 sealed packets and he had made entry in the Malkhana Register Ex. P-26. A reading of entry goes to show that all the sealed packets which were handed over to Gopsingh were recovered from the site. Gopsingh in his cross-examination has clearly stated that the entry indicates that all the articles of 5 packets were lifted from the place of occurrence. Not only this, a reading of the forwarding letter EX. P-29 proved by Hansmukh Lal P. W.-10 clearly reveals that all the items contained in the 5 packets were lifted from the place of occurrence, It is thus obvious that clothes as well as knife were seized from the place of occurrence and not at the instance of the accused. ( 21 ) BESIDES that, there is no evidence on record to find that the recovered clothes belong to accused. It has not been established by any evidence on record that the accused used to wear these clothes. It is pertinent to state here that according to Laxmi Chand, both the families-family of Laxmi Chand and that of accused-were having inimical relations and the bone of contention was a piece of land. When all the family members of the accused were inimical to Hansia, arid the things are said to have been recovered from an almirah having no lock and from a room which was not having shutters it cannot be said with certainty that the things were kept in the almirah by the accused. In these circumstances, even on assuming the recovery of blood-stained of committing murder by the accused can be drawn. ( 22 ) COMING to the circumstance that human blood found on the clothes alleged to have been recovered at the instance of accused (though the recovery at his instance has not been believed) it is relevant to state that the blood group of the accused was not taken. ( 22 ) COMING to the circumstance that human blood found on the clothes alleged to have been recovered at the instance of accused (though the recovery at his instance has not been believed) it is relevant to state that the blood group of the accused was not taken. Therefore, even on presuming that the clothes belonged to the accused, the possibility that blood found on the clothes was that of the accused, cannot be rutted out. ( 23 ) REGARDING the recovery of knife, it is relevant to state that according to Dr. Bhanwar Singh P. W.-14, injuries Nos. 2, 3 and 7 could not be caused by knife Article 7 as it is not straight. This circumstance further weakens the prosecution case. Thus the evidence of recovery of knife and clothes does not connect the accused with the ( 24 ) THE prosecution had also relied on the circumstance that accused had borrowed the cycle found at the scene of occurrence from P. W. 12 Devendra Kumar in the presence of P. W. 2 Nimba Ram. Both these witnesses P. W. 2 Nimba Ram and P. W. 12 Devendra Kumar, have not supported this version. Even Devendra Kumar has deposed that the cycle Art. 7 did not belong to him. Thus this circumstance is also not established on record. ( 25 ) IT has come in the statement of Bhanwer Singh (P. W. 13), who had conducted the initial investigation that when he had seen the site, there were foot prints of the assailant. The site plan Ex P-1 indicates that there were 4 foot marks having even blood near the place of occurrence. It is also stated in the site inspection memo that the foot prints were traced on the trace paper. No attempt has been made to show that the foot print of the accused tallied with the foot prints found at the sit, Thus this circumstance further weakens the prosecution case. ( 26 ) THE upshot of the above discussion is that on the check available on record, it is born out that Laxmi Chand had not seen the occurrence It is further established that the FIR is post investigation document and the prosecution case that blood stained clothes, and knife were recovered at the disclosure statement of the accused, is also not correct. The prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubts. The Trial Court has committed error in convicting him. He is entitled to acquittal. ( 27 ) CONSEQUENTLY, this appeal succeeds. The conviction and sentence recorded by the Trial Court are set aside and the accused appellant is acquitted of the offence under Sec. 302 IPC. He is in custody. He shall be released forthwith, if not required in any other case. Appeal allowed.