JUDGEMENT - VISHNU SAHAI, J. :---Aggrieved by the Judgment and order dated 3-8-1983 passed by the learned Addl. Sessions Judge, Greater Bombay, in Sessions Case No. 432 of 1982, acquitting the respondents for an offence punishable under section 302 of the Indian Penal Code, the appellant has preferred the present appeal. 2.Briefly stated, the prosecution case runs as under :- Between deceased Maidan Ali Gulalli Shaikh and respondent Wafati Babu Qureshi, there was an enmical strain emanating from a land dispute. Due to the said enmity, on 16-1-1982 at about 4.30 p.m. when Maidan Alli Gulalli Shaikh was eating pan near the mosque in Kasaiwada Kurla (West) Bombay, respondent Wafati came from Masjid side and started giving him fist blows. He then whipped out a razor and tried to stab him. Then he took him towards the side of his shop. Thereafter respondent Rajaballi Babu Quershi assaulted him with an iron bar and respondent Mehboob Badsahab Shaikh assaulted him with a wooden stick. One unknown person inflicted fist blows on his person. The assault is alleged to have been launched from front side. According to the prosecution, this incident was seen by Aayeshabi (P.W. 1), sister of the victim, Saberabi (P.W. 2), sister-in-law of the victim and Mohamed Abdul Gani P.W. 8, a neighbour of the victim. After assaulting Maidanali, the respondents and unknown person are alleged to have run away. 3.The evidence is that at about 6 p.m. the same day, some one telephoned the police of Tilaknagar Police Station about a assault being launched in Kasaiwada, Kurla. This has come in the evidence of P.S.I. Anand Baburao Patil (P.W.7). Pursuant to that information, P.S.I. Patil went to Kasaiwada, Kurla and there learnt that the injured had been removed to the hospital. Since he did not know the name of the hospital, he returned to Police Station Tilaknagar. At about 6.40 p.m. he received a telephonic message from Rajawadi Hospital to the effect that the victim Maidanali had been admitted in the said hospital. Consequently he proceeded to the said hospital. At Rajawadi Hospital, P.S.I. Patil met Dr. Jayanta Sarkar (P.W. 3). He asked him as to whether the injured was in a fit condition to give statement. On Dr. Sarkar replying in the affirmative, he questioned him and recorded the answers he gave. This information given by the victim is the F.I.R. Exhibit 12. At Rajawadi Hospital, P.S.I. Patil met Dr. Jayanta Sarkar (P.W. 3). He asked him as to whether the injured was in a fit condition to give statement. On Dr. Sarkar replying in the affirmative, he questioned him and recorded the answers he gave. This information given by the victim is the F.I.R. Exhibit 12. After the victim had given the answers and they were recorded in writing, Dr. Sarkar gave an endorsement that he was in a fit condition to make statement. On the basis of the F.I.R., wherein the three respondents are named and there is a reference to an unknown person, C.R. No. 30/82 under section 324 read with 114 I.P.C. was registered at Police Station Tilaknagar. 4.Injuries of Maidanali were medically examined at Rajawadi Hospital by Dr. Sarkar P.W. 3. The statement of Dr. Sarkar is that he had sustained a number of fractures. Maidanali succumbed to his injuries on 19-1-1982 at about 9 a.m. in Rajawadi Hospital. 5.The post mortem examination of the corpse of Maidanali was conducted by Dr. Murlidhar Kulkarni P.W. 10. Dr. Kulkarni found nine injuries on the person of the deceased, their break-up being thus one contusion, three linear parallel marks, one abrasion and four lacerated wounds. He also found a number of fractures. In his opinion, deceased Maidanali died on account of complications following multiple injuries. 6.The investigation of the case was conducted by P.S.I. Patil (P.W. 7). After recording the F.I.R. in Rajawadi Hospital, he proceeded to the place of the incident which he reached on the same day at about 8.30 p.m. In his statement, he stated that he found no blood there. He interrogated the eye-witnesses, Aayeshabi and Saberabi (P.Ws. 1 and 2 respectively) on 22-1-1982 and recorded their statements, under section 161 Cr.P.C. 7.Part of the investigation was conducted by Police Inspector Vasant Pawar P.W. 9. He recovered a knife having some stains under a panchanama, on the pointing out of respondent Wafati, on 23-1-1982. We may straight-way mention that no reliance can be place on this recovery evidence. All the three eye-witnesses have categorically stated in their depositions in the trial Court, that the said knife was not used. However, to our dismay, we find that the report of the Chemical Analyser shows that there were blood stains on the knife. We may straight-way mention that no reliance can be place on this recovery evidence. All the three eye-witnesses have categorically stated in their depositions in the trial Court, that the said knife was not used. However, to our dismay, we find that the report of the Chemical Analyser shows that there were blood stains on the knife. This obviously means that in its over-zealousness to create incriminating evidence against respondent Wafati, blood in all probability, was smeared on the knife by the investigating agency. P.S.I. Pawar also recorded the statements of some witnesses under section 161 of the Cr.P.C.; one of them being M.A. Gani (P.W. 8). After completing the investigation, he submitted the chargesheet against the three respondents. The unknown person, however, could not be traced out. 8.The case was committed to the Court of Sessions in the usual manner. In the trial Court, the respondents were charged under section 302 of the Indian Penal Code. We would straightway like to indicate our displeasure on the fact that the learned trial Judge framed a charge under section 302 of the Indian Penal Code simpliciter against the respondents. That could not be done because there is no evidence to indicate that each of the respondents were individually liable for inflicting the fatal blows on the deceased. The learned trial Judge, in our view, should have framed a charge under section 302 r/w 34 of the Indian Penal Code, instead. In the trial Court, in all the prosecution examined as many as nine witnesses. Three of them viz. Aayeshabi, Saberabi and M.A. Gani, P.Ws. 1, 2 8 respectively were examined as eye-witnesses. The prosecution, during trial, also proved the F.I.R. and relied upon the same as a dying declaration, within the meaning of section 32 of the Indian Evidence Act. In defence, no witness was examined. 9.After assessing the evidence adduced by the prosecution, and hearing the learned Counsel for the parties, the trial Court concluded that the prosecution had failed to bring home the guilt of the respondents beyond reasonable doubt and hence acquitted them vide the impugned judgment. This acquittal has been assailed by the State of Maharashtra through the present appeal. 10.We have heard Mr. Rajiv Patil. Addl. Public Prosecutor, for the appellant. Although the respondents were served, they have not chosen to engage any Counsel. This acquittal has been assailed by the State of Maharashtra through the present appeal. 10.We have heard Mr. Rajiv Patil. Addl. Public Prosecutor, for the appellant. Although the respondents were served, they have not chosen to engage any Counsel. We have also gone through the evidence of the prosecution witnesses, the F.I.R., and the impugned judgment. After thoughtfully reflecting over the matter, we are constrained to observe that this appeal is devoid of substance and deserves to be dismissed. 11.The evidence on which Mr. Rajiv Patil, seeks conviction of the respondents can be classified under two heads :- (i) ocular account furnished by Aayeshabi, Saberabi and M.A. Gani, PWs. 1, 2 and 8 respectively and (ii) F.I.R. lodged by victim Maidanali, which, in the contention of Mr. Rajiv Patil, is a dying declaration. 12.We have perused the impuged judgment and we find that satisfactory reasons have been assigned by the learned trial Judge for rejecting both the evidences. 13.We would first like to take up the ocular account. There is a common infirmity in the statements of all the three eye-witnesses which renders it unsafe for us to accept them. That is, that although the incident took place on 16-1-1982, all the three eye-witnesses were interrogated belatedly under section 161 of the Cr.P.C.; Aayeshabi and Saberabi on 22-1-1982 and M.A. Gani on 1-2-1982. The Apex Court, in a large number of decisions, out of which reference need only be made to one viz. (G. B. Patil v. State of Maharashtra)1, A.I.R. 1979 S.C. 135 paras 15 and 18 has deprecated the practice of recording statements under section 161 of the Cr.P.C. after an inordinate delay. In the said decision, it has laid down that such delay may give rise to the inference that the witnesses had not seen the incident and the investigator was buying out time to give shape to the prosecution case. In our view, in the absence of any explanation forthcoming from the side of the prosecution this inordinate delay in recording of the statements of these witnesses, under section 161 of the Cr.P.C. is alone sufficient to reject their testimony. When this delay is examined in the background of the fact that two of the witnesses, viz. In our view, in the absence of any explanation forthcoming from the side of the prosecution this inordinate delay in recording of the statements of these witnesses, under section 161 of the Cr.P.C. is alone sufficient to reject their testimony. When this delay is examined in the background of the fact that two of the witnesses, viz. Aayeshabi and Saberabi, are highly interested, being the real sister and the sister-in-law of the deceased respectively, we find it extremely hazardous to accept their testimony; more so in an appeal against acquittal, wherein we have to see whether the assessment of evidence made by the trial Court can be stigmatised as perverse or grossly unreasonable. There is another infirmity in the statements of all the three eye-witnesses, namely that we cannot believe them when they state that the incident took place at the place alleged by the prosecution. In this connection, it would be apposite to refer to the statement of P.S.I. Patil P.W. 7 who stated that the same day at about 8.30 p.m. he reached the place of the incident and did not find blood there. Apart from the reasons referred to above, we find there is another reason for rejecting the statement of M.A. Gani, P.W. 8 namely that both P.Ws. 1 and 2 viz. Aayeshabi and Saberabi are categorical that no other person saw the incident. The learned trial Judge rightly in our judgment rejected the testimony of these eye-witnesses also on the ground that their names do not find place in the F.I.R. which was lodged by the victim. This is significant because Aayeshabi and Saberabi were his close relations and M.A. Gani his neighbour. Had these witnesses seen the incident, then in the F.I.R. their names would have been mentioned. We may hasten to add that the reasons stated above are not the only ones as to why the learned trial Judge has rejected the ocular account. He has extensively set out the reasons in paras 21 to 49 of the impugned judgment. We have not adverted to all those reasons because unnecessarily the bulk of this judgment would swell. We are satisfied that the learned trial Judge was correct in rejecting the statements of these three eye-witnesses. 14.This brings us to the F.I.R. on which Mr. Rajiv Patil heavily relies upon. We have not adverted to all those reasons because unnecessarily the bulk of this judgment would swell. We are satisfied that the learned trial Judge was correct in rejecting the statements of these three eye-witnesses. 14.This brings us to the F.I.R. on which Mr. Rajiv Patil heavily relies upon. The evidence shows that after reaching Rajawadi Hospital, wherein the victim Maidanali was admitted, P.S.I. Patil P.W. 7 asked Dr. Sarkar P.W. 3 whether Maidanali was in a fit condition to give statement and on the answer of the doctor in the affirmative, he recorded the F.I.R. and after recording the same, Dr. Sarkar gave a certificate contained in the F.I.R, testifying that the victim was in a fit condition. In the impugned Judgment, the learned trial Court Judge has given a number of reasons for rejecting the F.I.R. on which the prosecution relies as a dying declaration. The first reason, in our judgment as to why the F.I.R. does not inspire any confidence is that the copy of the F.I.R. supplied to the defence Counsel did not bear an endorsement about the victim being in a fit condition to make the statement. Reading in between the lines, the possibility of the said endorsement being obtained later on, cannot be excluded. Had it been there from the beginning, then there was no reason as to why it does not find place in the copy of the F.I.R. supplied to the defence Counsel. Another reason which creates doubts in our minds regarding the F.I.R. is that we have our grave reservations about the competence of the victim to have made it, in view of the extremely serious injuries which he had sustained. The medical evidence shows that the said injuries included the following fractures :- 1. Compound fracture of left humerous lower 1/3; 2. Fracture of radius right side; 3. Fracture of ulna right side; 4. Fracture of several neckbones. In our view, after sustaining such a large number of fractures, the possibility of victim dictating the F.I.R. becomes very-very remote. In this connection, we would do well to remember that the evidence on record is that after being admitted in the hospital the victim was taken in the operation theater, put under anesthesia and thereafter operated. In our view, after sustaining such a large number of fractures, the possibility of victim dictating the F.I.R. becomes very-very remote. In this connection, we would do well to remember that the evidence on record is that after being admitted in the hospital the victim was taken in the operation theater, put under anesthesia and thereafter operated. In such a situation, we find it very difficult to believe that at about 7 p.m. on 16-1-1982 when the recording of the F.I.R. by P.S.I. Patil P.W. 7 commenced, the victim would have been in a conscious condition. It is common knowledge that the effect of anesthesia continues for a couple of hours after the surgery is over. To repeat, in a case of the present type wherein the victim sustained so many serous injuries, it would be hazardous to accept the claim of the prosecution that he dictated the F.I.R. between 7 p.m. to 7.45 p.m. the same day i.e. within three hours and three hours and forty-five minutes of the incident taking place, as deposed to by P.S.I. Patil. If in its over-zeleaousness, the prosecution could smear blood on the knife recovered at the pointing out of respondent Wafati, then what is the guarantee that it did not create an F.I.R., purporting it to be that of the victim. Once the fairness of the prosecution is under a cloud it becomes hazardous to accept it as a dying declaration because as the Apex Court pointed out in para 17 of the oft-quoted decision reported in A.I.R. 1958 S.C. 22 (Khushal Rao v. State of Bombay)2, that a dying declaration, unlike the ocular evidence, cannot be tested on the anvil of cross-examination. There are some other reasons as to why the learned trial Judge has not found favour with the F.I.R. They are contained in paras 54 to 59 of the impugned judgment. One of them is that contrary to the mandate of section 154 of the Cr.P.C. which is that the copy of the F.I.R. in a cognizable case should be given to the informant, no copy was given. This salutary provision is there to guard against the possibility of the Police Officer preparing a F.I.R. The learned trial Judge has also not relied upon the F.I.R. because there has been delay in sending its copy to the Magistrate. This salutary provision is there to guard against the possibility of the Police Officer preparing a F.I.R. The learned trial Judge has also not relied upon the F.I.R. because there has been delay in sending its copy to the Magistrate. 15.When these infirmities in the dying declaration and the ocular account are evaluated in the background of the fact that we are examining the impugned judgment in an appeal against acquittal, wherein the law as we understand is, that interference by the appellate Court is only resorted to if the conclusions arrived at by the trial Court are either perverse or grossly unreasonable on facts or the view of acquittal is vitiated by any illegality, we find that the impugned judgment warrants no interference by us. 16.In the result this appeal is dismissed. The acquittal of the respondents under section 302 of the Indian Penal Code, recorded vide the impugned judgment is confirmed. The respondents are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged. Before parting with the judgment we would be failing in our fairness if we do not record our appreciation for the assistance rendered to us by Mr. Rajiv Patil, learned Add. Public Prosecutor in disposal of this appeal. The same has considerably facilitated this judgment. In case an application for a certified copy of this judgment is made, the same shall be issued on an expeditious basis. Appeal dismissal.