JUDGMENT R.D. Shukla, J. -- 1, The appeal is directed against the judgment and order dated 8.10.1993 of 1st Additional Sessions Judge, Ratlam, passed in S.T. No. 24/92, whereby the accused-appellants have been convicted under S. 302/34 I.P.C. for having committed murder of Ambaram @ Ambuda on 7.1.92 at about 4 p.m. in village Kua Jhagar, P.S. Bilpank and sentenced to imprisonment for life. 2. The prosecution story, in brief, is that on the date of incident (7.1.92) a feast, on the death of mother of Gangaram and his brother Dayaram (P.W. 6), was arranged. Many persons of the village have participated. Deceased Ambaram @ Ambu, his wife Sohani Bai (P.W. 1), daughter Kalibai (P.W. 5) and Shardabai also participated the same. Accused persons also participated in the feast. The feast continued from 10 a.m. to 4-5 p.m. Sohanibai and her daughters proceeded to their houses slightly earlier at the instance of Ambaram. He also started for his house after enjoying smoke of Bidi. While coming, as such, he started talking with one Gattoo near the field of Kaniram. Bheru (P.W. 5), and Shivlal (P.W. 7) were also coming back from their field. Meanwhile accused Dayaram armed with sword and Dhariya, accused Jagdish armed with Dhariya came on the spot. They asaulted Ambaram and caused various injuries including injury on the head and chopping of the hand. Ambaram walked a few steps and fell down. Kalibai and other witnessed the incident. Kalibai raised alarm, went to her house and informed her mother Sohanbai. Sohanbai also came to the spot and found her husband dead. Other persons of village assembled, thereafter, accused persons left the place. Sohanbai informed her father-in-law and mother-in-law (Nanda and Nandi). Kaniram @ Nanuram (brother of deceased) also came to the spot. The matter was reported to the police by Sohanbai on the same day at about 6.40 p.m. in police station Bilpank nearly 16 kms away from the place of incident. The F.I.R. was recorded by Pradeep Singh Ranawat (P.W. to), who registered an offence under S. 302/34 I.P.C. with Crime No. 8/92 vide Ex. P/1. He visited the spot in the night at about 7.30 p.m., found dead body of Ambuda @ Ambaram on the spot. He found injuries on the body and big cut mark of the right hand. He prepared report Ex. P/3, seized stained and controlled earth vide Ex. P/19. P/1. He visited the spot in the night at about 7.30 p.m., found dead body of Ambuda @ Ambaram on the spot. He found injuries on the body and big cut mark of the right hand. He prepared report Ex. P/3, seized stained and controlled earth vide Ex. P/19. One pair of black shoes and a yellow turban were seized vide Ex. P/14.The body of Ambaram was sent for post mortem examination with a letter of request Ex. P/11-A. Autopsy on the body of Ambaram was conducted by Dr. Jenuddin Bohara (P.W. 9), who found following injuries :- 1. Incised wound 15 cm x 4 cm x brain deep (after cutting the skull bone) clotted blood was present. Blood a clotted hair were present around the wound on the right parieto occipital region. 2. Incised wound 10 cm x 8 cm x skin deep on the left side of the face, near the nose. Clotted blood was present. 3. Incised wound 15 cm x 5 cm muscle deep, on the left scapula. 4. Right 1/3rd part of the right fore-arm was almost completely out. The right hand was almost completely separated. 5. Abrasion 4 cm x 2 cm on the right thigh. On dissection there was fracture of skull bone. There were marks of injuries on the occipital and parietal bone. Membrane were cut. Semi digested food was present in the stomach. Injuries were ante mortem and injuries (1 to 4) were caused by heavy sharp edged cutting weapon. Injury No.5 was caused by some hard and blunt weapon. Clothes of the deceased were taken and sent to the police in a sealed bundle. Deceased died of haemorrhage and shock. Injury No. 1 was sufficient in ordinary course of nature to cause death. Dr. Bohra prepared report Ex. P/11. 3. Shri Pradeep Singh Ranawat arrested accused Dayaram and Jagdish on 9.1.92 vide memo Ex. P/16. Dayaram gave information about sword and Dharia vide Ex. P/4A Jagdish gave information about Dhariya vide Ex. P/5. Dayaram produced one sword .and a Dhariya from his house beneath the heep of grass. The same was seized vide Ex. P/7. Jagdish took out Dhariya from his tapra and produced it. The same was seized vide Ex. P/6. During investigation statements of Sohanbai and Bheru were recorded under S. 164 Cr.P.C. on 10.1.92. Site map Ex. P/17 was got prepared from Patwari. The same was seized vide Ex. P/7. Jagdish took out Dhariya from his tapra and produced it. The same was seized vide Ex. P/6. During investigation statements of Sohanbai and Bheru were recorded under S. 164 Cr.P.C. on 10.1.92. Site map Ex. P/17 was got prepared from Patwari. Sealed bundle sent by Dr. Bohara was seized vide Ex. P/15. All these articles i.e., stained and controlled earth, pair of shoes and turban seized from the spot, sword and Dhariya produced by Dayaram, Dhariya produced by Jagdish and clothes of the deceased -received from the hospital were sent for chemical examination. Chemical examiners report Ex. P/20 disclosed presence of blood on all other articles excepting controlled earth. All these articles were sent to Serologist for examination, but the report could not be collected. After investigation both the accused persons were prosecuted. Both of them denied the guilt and pleaded false implication. The learned trial Judge has convicted and sentenced the accused-appellants as above. Hence, this appeal. 4. The contention of the learned counsel for the appellants is that the prosecution witnesses are not reliable. Sohanbai could not have seen the incident after receiving information from Kalibai. Sohanbai, Kalibai and Bheru are near relations being wife, daughter and son of deceased and, are therefore, highly interested in success of prosecution. No independent witness has corroborated the story. It has also been submitted that deceased was bully in the area. He himself was prosecuted for offence like murder and thus he had many enemies. These accused persons have been prosecuted on the basis of suspicion. Recording of statement (under S. 164 Cr.P.C.) of Sohanbai and Bheru goes to show that the prosecution doubted their veracity. As against it, learned counsel for the respondent State has submitted that the 3 eye-witnesses have corroborated the story. Their evidence could not be discarded merely on the ground that they are near relations. 5. The fact of homicidal death of Ambaram @ Ambooda has not been disputed and rightly so as the same stands proved not only from the evidence of 3 eye-witnesses (P.W. 1) Sohanbai, P.W. 3 Kalibai and P.W. 5 Bheru) but also from the evidence of P.W. 10 Pradeep Singh Ranawat, who prepared inquest report and from the evidence of Dr. Januddin Bohara who conducted autopsy and found injuries as above. 6. Januddin Bohara who conducted autopsy and found injuries as above. 6. P.W. 1 Sohanbai has appeared as eye-witness of the incident and stated that her husband (deceased) and accused persons were on inimical terms from before, as accused Dayaram had caused grevious injuries to her by causing fracture in the hand and had assaulted her husband also. She has further stated that she had gone to attend the Mausar ceremony arranged in the house of Dayaram and Kaniram on the death of their mother. Her husband and 4 children had also gone there. She came earlier, but her children and husband stayed for some time. On the same day at about 4 p.m. her daughter Kali Bai came and informed that her father, who was addressed as 'Bhaiji', is being beaten. She went in front of the house of Mangu Jamadar, just behind the house of Dayaram she saw both the accused persons (Jagdish and Dayaram) causing injuries to her husband. Accused Dayaram was keeping sword and Dhariya and Jagdish was having a Dhariya. She further states that Dayaram caused injuries by sword and Dhariya and Jagdish caused injury by Dhariya and cut the right hand from its joint. She further states that Bheru and her daughter Kali were also present. Many other persons were also present but no body helped her. Her husband died on the spot. She further states that she lodged report Ex. P/1 in police station Manak Chowk. She has also stated that her husband was wearing Dhoti, shirt, yellow turban and nylone shoes. The police came in the night itself. 7. This witness has given whole description of the incident, but one thing is certain that she reached the spot after receiving information from Kalibai (P.W. 3). P.W. 3 Kalibai is a child witness aged about 8-10 years. She has stated that she was coming alongwith her father after attending the mausar ceremony. Both the accused persons (Jagdish armed with Dhariya while Dayaram armed with Dhariya and a sword) assaulted her father. She has further stated that one of them chopped off right hand from its joint. She also states that both the accused Dayaram and Jagdish caused injuries by penetrating sword in the mouth also. She raised alarm and, thereafter, went to her mother. She has further stated that one of them chopped off right hand from its joint. She also states that both the accused Dayaram and Jagdish caused injuries by penetrating sword in the mouth also. She raised alarm and, thereafter, went to her mother. In para-5 of her statement she has admitted that she went to her house for informing her mother after witnessing whole of the incident. She further admits in para-8 that she had to cross a river for reaching her own house and, thereafter, she was required to cross 2-3 fields for reaching her house and her house is situated at the extreme corner of the village. P.W. 1 Sohanbai has also admitted in para-12 of her statement that there is a river in between her house and place of incident. She has also admitted that there is an open ground of about 200-250 paces in length. One is required to cross it for coming to the road and, thereafter, one reaches the house of Mangu's mother. There are 40-45 tapras between the house of mother of Mangu and her house. This fact has also been admitted by P.W. 2 Kaniram (brother of deceased) in para 6 of his statement. Thus, from the above admission made by the three witnesses it is evident that the place of incident is about 400-500 yards from the house of Sohanbai, Kalibai must have taken some time in reaching the place. The incident must have taken only few minutes and, therefore, it was not possible for Sohanbai to have seen the incident. She must have reached the spot after the incident. The very admission by the prosecution that her statement was recorded under S. 154 Cr.P.C. goes to show that at one stage of investigation prosecution doubted the veracity of this witness and it was for this reason that she was tied down by getting her statement recorded on oath or else there was no reason as to why she was tied down under the provisions of S. 154 Cr.P.C. She is the wife of the deceased, as such, if she had seen the incident it was expected of her to have stated the same before the police and the Court. 8. F.I.R. Ex. P/1 was recorded by Shri Pradeep Singh Ranawat (P.W. 10) in police station Bilpank. 8. F.I.R. Ex. P/1 was recorded by Shri Pradeep Singh Ranawat (P.W. 10) in police station Bilpank. This witness has stated in para-1 of his statement that Sohanbai came alongwith her Jeth (husband's elder brother) Kaniram to police station. Thereafter, Ex. P/1 was recorded and offence as above was registered at Crime No. 8/92. 9. Sohanbai has stated in para-7 of her statement that she reported the matter in police station Manak Chowk, which (as admitted by the parties) is situated in Ratlam. She further admits in para-7 of her statement that Nanuram came to her house after she returned from the police station and thereafter she narrated the story to Nanuram. It appears that Nanuram and Kaniram (P.W. 2) are the same persons. Ex. P/1 contains a recitation that complainant Sohanbai along with her husband's elder brother Kaniram reported the matter P.W. 10 Pradeep Singh Ranawat has also stated in para-1 that Sohanbai came alongwith her husband's elder brother Kaniram to P.S. Bilpank and lodged the report as narrated above. 10. P.W. 2 Kaniram, on the other hand, has stated that he was working in his field. Mangilal, probably the owner of the field, came and informed that Dayaram and Jagdish have killed his brother and the body is lying near the house of Dayaram. He also informed about the chopping off of the hand from its joint and the sword injury on the face. He reached the spot thereafter, but nobody including her sister-in-law Sohanbai were present. He went to village Mundri for sending a telephonic message, but the telephone was out of order. The S.H.O. of P.S. Birmawal met him at village Hundari. He, therefore, informed the incident to him, who came to the spot, inspected the body and this witness has to remain near the dead body for whole of the night. He has also stated about old enmity between his brother, the deceased on one hand and accused persons on the other hand. 11. From the evidence of Kaniram it is clear that he never accompanied Sohanbai for lodging report to police station Bilpank. Thus, there is a clear contradiction on the points: (i) as to whether F.I.R. was lodged in police station Manak Chowk, Ratlam or Police Station Bilpank? 11. From the evidence of Kaniram it is clear that he never accompanied Sohanbai for lodging report to police station Bilpank. Thus, there is a clear contradiction on the points: (i) as to whether F.I.R. was lodged in police station Manak Chowk, Ratlam or Police Station Bilpank? (ii) as to whether Kaniram accompanied Sohanbai and was informed of the fact after return from the field after her return from police station; or (iii) whether Kaniram was the first man of the family to have reported the matter to the police. It is also noteworthy that in para-4 of his statement he admits that when he reached the spot after receiving information from Mangilal, nobody was there on the spot. He went to village Mundri and thereafter came to his house. His sister-in-law Sohanbai and Kalu were present in the mausar ceremony and they came after arrival of the police. Thus, from the statement of Kaniram what comes out is that nobody was present on the spot at the initial stage. We would further discuss this fact afterwards. However one thing becomes very clear that F.I.R. (Ex.P/1) was not lodged in the manner it is being presented before the Court. If there was any report lodged by Sohanbai in police station Manak Chowk, it ought to have been produced and withholding of that information by the prosecution would indicate that something which was not in favour of the prosecution was reported. As stated by Sohanbai, Kaniram came to his house from the field after her return from P.S. Manak Chowk. Thus, there was no occasion for Kaniram accompanying her upto police station. As against it, Kaniram says that he went all alone for sending a telephonic message to village Mundari and met one police Sub- Inspector of P.S. Birmawal, who came to the spot alongwith him. It is not known who is this Sub-Inspector of Birmawal, who came alongwith this Kaniram. This further goes to show that Kaniram never accompanied Sohanbai for lodging the report upto police station Bilpank, as stated by Shri Pradeep Singh Ranawat (P.W. 10 SHO Bilpank). 12. There is absolutely no evidence to show as to whether there was compliance of the mandatory provision of S. 157 Cr.P.C. that is to say as to whether any report of the incident was sent to the Magistrate concerned, having jurisdiction over the matter. 12. There is absolutely no evidence to show as to whether there was compliance of the mandatory provision of S. 157 Cr.P.C. that is to say as to whether any report of the incident was sent to the Magistrate concerned, having jurisdiction over the matter. Section 157 Cr.P.C. provides that the police officer empowered to investigate under S. 156 Cr.P.C. shall forthwith send a report to the Magistrate empowered to take cognizance; Though it is true that delay in despatch of the F.I.R. is not a circumstance which can throw out the prosecution case in its entirety, ( AIR 1976 SC 2304 ), but inordinate delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvements, embellishment and set up a distorted version of the occurrence. The suspicion hardens into a definite possibility when the case made in Court differs and at least in some important particulars from that narrated in the FIR. In such a case, the evidence of prosecution witness cannot be accepted at its face value. Ishwar Singh v. State of U.P. ( AIR 1976 SC 2423 ). 13. Though it is also true that the provision contained in Sec. 157 Cr.P.C. is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under section 159 Cr.P.C.; but in case it is found that the F.I.R. was recorded without delay and the investigation was started on that F.I.R., then, however improper or objectionable the delay in receipt of report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. State of U.P. v. Gokaran ( AIR 1985 SC 131 ). Here is a case where there is absolutely no evidence to show as to whether the F.I.R. was sent to the Magistrate having jurisdiction over the matter. The fact of sending of F.I.R. to the Magistrate is required to be proved like any other fact. 14. State of U.P. v. Gokaran ( AIR 1985 SC 131 ). Here is a case where there is absolutely no evidence to show as to whether the F.I.R. was sent to the Magistrate having jurisdiction over the matter. The fact of sending of F.I.R. to the Magistrate is required to be proved like any other fact. 14. In normal course where prosecution witnesses are otherwise found to be independent and reliable mere non-despatch of FIR may not be fatal, but the whole prosecution depends on the statement of close and near relation, the fact of despatch of F.I.R. to the Magistrate gains importance. Here, in this case there is not only no evidence to show as to whether the FIR. was despatched to the Magistrate, there is a discrepancy on the point as to whether F.I.R. was really made, as stated by the prosecution (Sohanbai states about lodging of ELR. in Manak Chowk Ratlam and meeting Kaniram after return). Police officer Pradeep Singh Ranawat states having recorded F.I.R. in Bilpank in the presence of Kaniram. Kaniram nowhere states that he went to Bilpank alongwith Sohanbai. This creates a serious doubt as to the fairness of the investigation and presence of Sohanbai and further creates a serious doubt as to whether F.I.R. was at all lodged in the manner propounded and produced before the Court. If the fact of recording of statement of Sohanbai under S. 164 Cr.P.C. is seen in this back ground it further raises suspicion. The defence has suggested that Sohanbai was residing in Modinagar and reached the spot after hearing the incident and she was subsequently made an eye-witness and F.I.R. was got recorded in her fame. 15. In the absence of proof about the despatch of F.I.R. under S. 157 Cr.P.C. contradiction and discrepancies in the statement of Sohanbai, Kaniram and Pratapsingh Ranawat as to the time and place of lodging of F.I.R., recorded of statement u/s. 164 Cr.P.C. gains importance and it shows that Sohanbai was tied down under S. 164 Cr.P.C. so that she may state the same fact as she once stated on oath before the Magistrate. In our considered opinion, therefore, Sohanbai cannot be relied. She cannot be accepted to be an eye-witness. The fact of lodging FIR about the incident by Sohanbai is also not reliable and therefore the FIR also becomes suspicious. 16. In our considered opinion, therefore, Sohanbai cannot be relied. She cannot be accepted to be an eye-witness. The fact of lodging FIR about the incident by Sohanbai is also not reliable and therefore the FIR also becomes suspicious. 16. Now, we are left with the evidence of Kalibai and Bheru. In the F.I.R. Shiva s/o Sukhram has also been shown to be an eye witness but he did not support the case of prosecution and he has been declared hostile. P.W. 6 Dayaram whose mother's last ritual of Mausar has been performed, has also turned hostile. He has stated that Ambaram alias Ambuda came in the mausar all alone his wife and children did not accompany him. P.W. 8 Ramsingh has also turned hostile and has not supported the prosecution story. P.W.4 Balu is the witness of inquest report memo and seizure of sword and Dhariya. He has admitted in para 11 of his statement that one Munna and deceased Ambaram @ Ambuda were prosecuted in a murder case. P.W. 1 Sohanbai has also admitted during cross examination that her husband Ambaram @ Ambuda was facing many trials and she was required to go to the Court off and on for arranging bail of her husband. 17. P.W. 3 Kalibai has stated that she was returning alongwith her father, two accused persons met them on the way. They were armed with weapons as above, and they assaulted her further. Thereafter, she went to her mother and brought her to the place of incident. As observed in earlier paragraph she has tried to improve the story and in para-3 of her statement further stated that her mother also saw accused persons assaulting her father after she was called from the house. This fact is absolutely not possible. Kalibai must have taken at least half an hour for reaching and returning from her house. The assault must not have taken more than few minutes (nearly 4-5 minutes). In para 6 she has admitted that at the time of incident there was nobody excepting she herself and her father. In para-12 she has admitted that she was questioned by the police after 4-5 days after the incident. Thus, she has improved the story. It must have been at the instance of either her near relations or the prosecution agency. In para-12 she has admitted that she was questioned by the police after 4-5 days after the incident. Thus, she has improved the story. It must have been at the instance of either her near relations or the prosecution agency. This tendency of improvement creates a doubt as to the reliability of the evidence of this witness as well. This further creates a doubt as to the presence of this witness on the spot. Though, she has denied the suggestion of being tutored, but in the back ground of the case and looking to the improvement made by this witness the possibility of tutoring cannot be ruled out. Wherever the tendency of improvement is found in the statement of such witnesses it does not only affect the veracity and reliability, but further creates a suspicion as to the tutoring and in such circumstances Court would be justified in presuming the fact of tutoring. 18. P.W. 5 Bheru, who is son of Balu (P.W. 4) and the nephew of deceased Ambaram, has stated that he was present near the house of Mangu and saw Dayaram and Jagdish assaulting Ambaram. He has also stated about the presence of Kalibai and, thereafter, arrival of Sohanbai as well. He nowhere states that Kalibai went to inform her mother. In last line of first para of his statement he has stated that they kept quiet and did not protest. It appears highly unnatural and improper that a near relation of deceased would not try to protest or raise alarm and intervene in the matter. It also appears unnatural that Sohanbai would not try to intervene and protest against assault. The conduct of this witness is not conducive and consistent to the conduct of an eye witness of such an incident where the near relation of the witness has been killed. As observed in earlier paragraphs the fairness of investigation and the recording of F.I.R., as alleged, is suspicious and doubtful, there is every possibility of F.I.R. being ante dated and ante timed. In such a situation it would be highly unsafe to base conviction of accused persons of such a heinous offence on the basis of statement of such a witness whose conduct is not conducive and consistent to the normal conduct of a near relation witnessing such a ghastly crime being committed. In such a situation it would be highly unsafe to base conviction of accused persons of such a heinous offence on the basis of statement of such a witness whose conduct is not conducive and consistent to the normal conduct of a near relation witnessing such a ghastly crime being committed. The statement of this witness got recorded under S. 164 Cr.P.C. That further shows that the prosecution at one stage of investigation itself doubted the veracity of this witness. Mangu has not been examined to corroborate the evidence of this witness. This further makes his evidence suspicious. In our considered opinion, therefore, the whole incident and the participation of the accused persons in the crime remains shrouded in doubt and under these circumstances they are entitled to benefit of reasonable doubt, which we are inclined to extend them. As the incident happened near the house of Dayaram; Dayaram and Jagdish were on inimical terms with deceased and, therefore, there is possibility of injuries having been caused by them, but the evidence adduced falls short of certainty which is required in such cases. We do not know whether the real culprits are the accused persons, even if they may be the real culprits at least the evidence produced in the Court is not truthful and unless the evidence adduced by prosecution stands to the objective legal test; conviction of accused persons cannot be sustained. As a result, appeal succeeds and is allowed. Accused persons are extended benefit of reasonable doubt and acquitted of the offence charged. As they are in jail, they be released forthwith.