JUDGMENT 1. - This joint appeal by all the accused is directed against the judgment and order dated August 11, 1995 passed by the learned Sessions Judge, Alwar whereby they have been convicted under Section 302 read with 149 and 148 IPC. Under Section 302 read with 149 IPC they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- each. In default of payment of fine to undergo three months rigorous imprisonment. Under Section 148 IPC they were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-. In default of payment of fine to undergo three months rigorous imprisonment. The substantive sentences were ordered to run concurrently. 2. The facts of the case have been extensively set out in the impugned judgment of the trial court Briefly, the prosecution case was that the deceased Sardara Khan, alongwith his brother Fannu Khan and wife Mohar-Bi had gone to Khedli to self sesames seeds (TILLI) in the morning of 12th October, 1994. They went to the shop of Jai Kishan Mahajan where they sold 21/4 kilograms of sesames seed (TILLI) for Rs. 36/-. While they were purchasing one kilogram Bura (Sugar Powder) from the shop of Jai Kishan, then all the 13 appellants accompanied with Banney Khan son of Rajmal, ishaq son of Saimal and Rehmat son of Mannu came there with deadly weapons like Barchi, axe, gun, sword etc. The prosecution case as detailed out in the first information report, further was that the accused Kamal Khan, Hasan Khan, Lallu, Subba, Ashu, Baddan, Rehmat, Ramjan and Ishaq encircled the deceased Sardar Khan while remaining accused assaulted him with their respective weapons. The prosecution story further goes that Fannu Khan and Mohar-Bi, in order to save their lives, went inside the house of Jai Kishan and saw the incident from there. The incident is alleged to have taken place at 8.30 a.m. Sardar Khan, was then, taken to the hospital at Malakheda in the tractor of Jai Kishan but he breathed his last in the way. After reaching at the hospital he was declared dead by the doctor. A report (Ex.P 9) of the incident was made at Police Station Malakheda and crime No. 326/94 was registered under Sections 147, 148 and 302 IPC. The autopsy on the dead body was conducted by PW. 7 Dr. After reaching at the hospital he was declared dead by the doctor. A report (Ex.P 9) of the incident was made at Police Station Malakheda and crime No. 326/94 was registered under Sections 147, 148 and 302 IPC. The autopsy on the dead body was conducted by PW. 7 Dr. lalit Kumar, who found the following injuries on the dead body:- (a) Bruise 16 x 1 cm. on Rt. Shoulder and scapular region. (b) Bruise 16 x 0.5 cm. on the back of neck. (c) Incised wound 10 x 5 cm. (bone deep) on the right parietal aspect of scalp. (d) Incised wound 7 x 5 cm. on lateral aspect of Right arm, lower ⅓ bone is fractured (cut) and exposed from wound. (e) Incised wound 10 x 3 cm. (bone & muscles-cut) on lateral aspect of Right wrist joint. (f) Amputation of distal phalanx of Right Middle Finger. (h) Incised wound 16 x 5 cm. on lateral aspect of left leg blow knee joint, cut in its half of circumstance involving the bone. (i) Lacerated wound 14 x 4 cm. on lateral aspect above the left ankle joint (bone deep cutting the bone fibula and Tebia). 3. The doctor also opined that the cause of death was due to excessive blood loss from the injuries causing hemorrhagic shock. All the injuries were opined to be anti mortem in nature. 4. After usual investigation, a charge sheet came to be filed against all the 13 accused appellants. While three accused, namely, Banney Khan, Ishaq and Rehmat were shown as absconding. After commitment, the appellants were tried before the learned Sessions Judge, Alwar, under Sections 148 and 302/149 IPC or in alternative under Section 302/34 IPC. They pleaded not guilty and claimed to be tried. During trial, the prosecution examined 15 witnesses to prove the guilt of the accused. The plea of the appellants was of denial and alibi and five witnesses were examined in defence. Out of the prosecution witnesses examined during trial, PW 1 Chain Sukh, PW. 2 Rahim Khan, PW. 5 Ram Khiladi, PW. 6 Fannu Khan, PW. 9 Smt. Mohar-Bi and P.W. 10 Kamru were examined as eye-witnesses of the occurrence. Chain Sukh P.W. 1 and Ram Khiladi PW. 5 did not support the prosecution version while PW. 2 Rahim Khan and PW. 10 Kamru were disbelieved by the learned trial Judge. 2 Rahim Khan, PW. 5 Ram Khiladi, PW. 6 Fannu Khan, PW. 9 Smt. Mohar-Bi and P.W. 10 Kamru were examined as eye-witnesses of the occurrence. Chain Sukh P.W. 1 and Ram Khiladi PW. 5 did not support the prosecution version while PW. 2 Rahim Khan and PW. 10 Kamru were disbelieved by the learned trial Judge. Thus, relying upon the evidence of PW. 6 Fannu Khan, brother of the deceased and Smt. Mohar-Bi, wife of the deceased, the appellants were convicted and sentenced as aforesaid. 5. Shri S.R. Bajwa, learned counsel for the appellants, vehemntly assailed the evidence of PW. 6 Fannu Khan and PW. 9 Smt. Mohar-Bi on a number of grounds. The first and the foremost attack is that presence of these witnesses in early morning at the scene of occurrence was not natural and they have been falsely made as eye-witnesses being close relatives of the deceased. We find force in this contention. It is true that the evidence of Fannu Khan and Smt. Mohar-Bi cannot be out rightly rejected simply on the ground of their being close relatives but in the facts and circumstances of the case, we find it difficult to place reliance on their testimony for convicting the appellants in absence of independent corroboration. The incident is alleged to have taken place at 8.30 a.m. and we find it difficult that for the purpose of selling "Tilli" in such small quantity or to purchase 1 Kg. Bura these witnesses would have accompanied the deceased Sardar Khan. Evidence has come on the record that after incident, Johra, father of Sardar Khan deceased had arrived at the place of occurrence even before lodging the report and taking Sardar Khan to the Hospital. Possibility cannot be ruled out that these witnesses might have come with Jora at the scene of occurrence and police made them eye witnesses PW. 6 Fannu Khan has stated in his examination in-chief that police had arrived at the scene of occurrence even before Sardar Khan was taken to hospital. According to him, Jora, father of deceased Sardar Khan had also come at that time. No evidence has been brought on record by the prosecution to show as to how the police reached at the scene of occurrence even before lodging the report. 6. The behaviour and conduct of these witnesses at the time of incident does not appear to be natural. No evidence has been brought on record by the prosecution to show as to how the police reached at the scene of occurrence even before lodging the report. 6. The behaviour and conduct of these witnesses at the time of incident does not appear to be natural. They did not try to help Sardar Khan either by intervening or by raising voice for help. Their conduct of running away from the scene of the assailants was quiet unnatural and abnormal specially as brother and wife of deceased. The incident had taken place in the market of Kherli where there must be other shops and in a normal course they would have cried for help if their presence at the place of occurrence was there. Then, after incident and the assailants had left the place of occurrence, in normal course it was expected of them to see whether Sardar Khan was alive or not. The nature of injuries, sustained by Sardar Khan, suggests that he must be in a pool of blood and as such the absence of blood-stains on the clothes of these witnesses, in facts of the case, is suggestive that they were not present at the scene of occurrence. 7. We also minutely examined the statements of Fannu Khan and Smt. Moha-Bi and we are satisfied that their evidence is not believable for more than one reason. Fannu Khan, in his examination-in-chief has described the part played by each of the assailants causing injuries to the deceased with particulars of weapons and part of the body of the deceased where they inflicted injuries. These details were given first time in his statement before the trial court and it is difficult for us to believe it. We find it, difficult to accept that the witness was in a position to minutely observe the part of each of the assailants and the weapon carried out by him and to remember all these details for such a long time till his statement was recorded in the trial court. Then in F.I.R. the part assigned to the accused Kamal Khan, Hasan Khan, Madan and Ramjan was that they encircled and surrounded Sardar Khan deceased while in the trial court they have been assigned part of assaulting the deceased. Then in F.I.R. the part assigned to the accused Kamal Khan, Hasan Khan, Madan and Ramjan was that they encircled and surrounded Sardar Khan deceased while in the trial court they have been assigned part of assaulting the deceased. Similarly, in F.I.R. accused Banney Khan, Asheen, Jhadmal and Ishaq were assigned the part of assaulting the deceased while in his statements in the Court they have been alleged to be standing out side the gate with guns and preening villagers coming at the scene of the occurrence. Then this witness was contradicted on material points from his previous statement, Ex.D/2, recorded by the police. Statement of PW. 9 Smt. Mohar-Bi also suffers from the same infirmities and contradictions. This witness was also contradicted on material facts from her police statement Ex.D. 4 at portions "A to B", "C to D" and "E to F". Thus, taking into consideration, the totality of the facts and circumstances we find it unsafe to convict the appellants on the testimony of these two witnesses in absence of independent evidence especially when their presence at the scene of occurrence is highly doubtful and their evidence is also not convicting. 8. Another important and serious infirmity we find about the prosecution version, is the manner in which the incident is alleged to have taken place implicating as many as 16 persons. It appears to be highly doubtful and exaggerated. If we believe the prosecution case, as unfolded in the first information report and the statements of PW. 9 Smt. Mohar-Bi and PW. 6 Fannu Khan, all the 16 accused persons came at the scene of the occurrence all of a sudden with full preparation and determination to cause death of Sardar Khan deceased and they made a concentrated attack being fully armed with deadly weapons. The manner in which the incident had taken place, shows that the assailants must be having serious heart burning and a strong motive for the crime. However, the prosecution has not brought any motive. We find it highly difficult to believe that 16 accused would have made such a concentrated attack with deadly weapons in such a manner without any motive or cause. Then most of the assailants were having guns or other formidable weapons like sword, Barchi and Axe. There was no reason for not making the full use of their weapons. We find it highly difficult to believe that 16 accused would have made such a concentrated attack with deadly weapons in such a manner without any motive or cause. Then most of the assailants were having guns or other formidable weapons like sword, Barchi and Axe. There was no reason for not making the full use of their weapons. It they came with predetermination to commit death of Sardar Khan the use of guns and other deadly weapons would have been made. We also find it unbelievable that they would have left alive Fannu Khan and Smt. Mohar-Bi, the brother and wife of the deceased in that situation so as to appear as witness against them. Hence we find it difficult to believe the prosecution case and the version of the eyewitnesses. 9. Jai Kishan Mahajan (Baniya), if we believe the prosecution case, was star witness in the case. He has been examined as PW. 4 and strangely not a single word has been either stated by this witness or asked by the prosecution so far the incident is concerned. He was the most important witness to prove presence of PW. 6 Fannu Khan and PW. 9 Smt. Mohar-Bi at the scene of occurrence and to tell about the participation of the assailants, Fannu Khan and Smt. Mohar-Bi have stated that Jai Kishan was present when they had gone to his shop to sell "Tilli" they have also stated his presence when the assailants came at the scene of occurrence. The Investigation Agency does not appear to be fair when this witness was not examined as an eye-witness. Then non production of other independent witnesses is also a serious weakness of the prosecution case. As already stated, the incident took place in the market of Kherli where other shops were open at the time of incident. The assailants being to the same area as such, the evidence of independent witnesses could have thrown some light about the occurrence and identity of the assailants. 10. Then, the first information report in this case appears to be as a result of concoction and deliberation. From the statement of P.W. 6 Fannu Khan it is clear that the police had already arrived at the scene of occurrence immediately after the occurrence. No attempt has been made as to how the police happened to be there and what was the information conveyed to it. From the statement of P.W. 6 Fannu Khan it is clear that the police had already arrived at the scene of occurrence immediately after the occurrence. No attempt has been made as to how the police happened to be there and what was the information conveyed to it. From the record it transpires that the FIR was received by the Magistrate on October 15, 1994 i.e. after three days. The FIR in a criminal case and particularly in the murder case is a valuable piece of evidence for purposes of appreciating the evidence led at the trial. The object behind registering a FIR is to obtain the version about the incident including names of the actual culprit and the part played by him/them. Delay in lodging the first information report often results in embellishment or a coloured and exaggerated version. With a view to determine whether the was lodged at the time said to have been recorded, the courts then look certain external checks. One of the checks is its receipt by the concerned Magistrate. If the report is received late by the Magistrate it can give rise to an inference that the report was not lodged at the time alleged to have been recorded unless the prosecution can offer a satisfactory explanation about the delay in dispatching or receiving of it by the concerned Magistrate. In the instant case, no explanation has come on the record for the delay in receiving the by the concerned Magistrate. 11. As a result of the above discussions, we are inclined to "hold that the case against the appellants has not been proved beyond reasonable doubt and they are entitled to get the benefit of doubt.Consequently, the appeal succeeds and is hereby allowed. The conviction and sentence recorded against the appellants are set aside. They shall be set at liberty forthwith if not required in any case.Appeal allowed. *******