Balveer Singh v. State of Rajasthan — 1996 DIGILAW 997 (RAJ)

Honble VERMA, J. – Balveer Singh son of Mehtab Singh, has preferred this criminal appeal under Sec. 374 of the Cr.PC against the judgment dated 3.12 1994 passed by Shri Badrilal Meena, R.H.J.S. Addl. District & Sessions Judge, Rai Singh Nagar, against his conviction under Sec. 302 of IPC for life imprisonment and a fine of Rs. 100/- and to go for another one month in case of default of payment of fine. (2) Alongwith appellant, Balveer Singh, the other accused persons namely Mahendra Singh Balvindra Singh and, Jangir singh were alsoSent for trial under Sec.114/302 IPC,where as another accused Mehtab Singh had during trial died and therefore proceedings against him were dropped.All other accused persons except Balveer Singh, were acquitted by the trial court and State of Rajasthan had not filed any appeal against the acquittal. Balveer Singh appellant was convicted for murder of Gurmit Kaur wife of Jangir Singh son of Mehtab Singh, Rai Sikh, resident of 2 KLD. (3) An FIR No. 32 dated 16.3.1988 (Ex. P/5) at 10.00 PM was got registered by Hardit Singh son of Kaka Singh Rai Sikh resident of 1 PMI at Police Station, Gharsana stating that his sister Gurmit Kaur was married to Jangir Singh son of Mehtab Singh, resident of 2 KLD about a year back and male child was also born to her, who is now of 20 days only.His sister used to be harassed and beaten by her in laws, for the reason that she was not obeying the in- laws. He was told by her sister that she wants to separate from the family and at that time Mehtab Singh and his sons had clearly said that in case, she separates she would not be given any part of the property .He had gone to bring her sister, when she was at the delivery stage but she was not sent alongwith him. After 20 days of that visit a male child, was born to her sister, then he had again gone to bring her sister . He was told by her sister that her father in-law Mehtab Singh,brother in-laws Mahedra Singh and Jangir Singh had given her beating.After coming to know of this fact, he had met his brother in- law Jangir Singh (Sisters husband) and his father Mehtab Singh had told them that it is not good to harass and beat his daughter. He was told by her sister that her father in-law Mehtab Singh,brother in-laws Mahedra Singh and Jangir Singh had given her beating.After coming to know of this fact, he had met his brother in- law Jangir Singh (Sisters husband) and his father Mehtab Singh had told them that it is not good to harass and beat his daughter. They assured him that it would not be repeated again.He had requested to send her sister with him for the reason that marriage of his younger brother Balbeer Singh is to be celebrated on 11.3.1988. He was told that his sister would be sent later on, but she was not sent and when the marriage date had almost reached, his mother Piaro Bai had gone to bring his sister but in-laws of the sister refused to send her with his mother and his mother came back. After the marriage of his brother, he and his brother in-law Jangir Singh son of Bagga Singh ,Rai Sikh, resident of 1 AM had gone Yesterday to her sisters house to know about the welfare of his sister to 2 KLD. He was told by her sister that all the members of her in-laws want to kill her and that she should be taken her parents house.At this, he had talked with Mehtab Singh, Mahendra Singh and Jangir Singh and asked him as to why his sister was being beaten. He had further told them that in case, they do not want her sister to remain there, he is prepared to take her sister back with him. They postponed the discussion to the next morning as it was night time. Mehtab Singh and his family are staying at Dhani in the field itself. There is one temple of the ancestors (Thaan) of Mehtab Singh. At about 8-9 PM when they were sitting at Dhani, Balveer Singh had started saying that he is now possessed with spirit and therefore they should go to temple and at this Mehtab Singh, and his sons Mahendra Singh, Jangir Singh, Balveer Singh and Balvinder Singh went towards Temple of the ancestors and he, Jangir Singh and his sister Gurmit Kaur were also forced to go there. On reaching that place, Balveer Singh said that an evil spirit had come in the body of Gurmit Kaur and he will remove this evil spirit and at this he started giving beatings to his sister Gurmit Kaur with an iron rod. Hardit Singh and his another brother in-law Jangir Singh son of Bagga Singh tried to stop Balveer Singh but Mehtab Singh,Mahendra Singh, Balveer Singh and Balvindrar Singh started goading Balveer Singh, to give her more beating and also remove the evil sprit from her. His sister started running, but these persons caught hold of her and Balveer Singh continued beating her. His sister started crying.When he and Jangir Singh tried to intervene, all those persons caught hold of us, but Balveer Singh continued beating his sister till she fell down and died.Complainant and Jangir Singh tried to run away from the place but they were not allowed.His sister had received injuries on the head, hands, legs and on her body and she was lying dead there. He further stated that finding a chance of escape, they both had run away from the place Jangir Singh hadgone to inform his mother. He told that his sister had been killed by Mehtab Singh son of Tek Singh, Mahendra Singh, Jangir Singh, Balveer Singh and Balvinder Singh on the pretext of removing the evil spirit from her body.The dead body of his sister is lying near the Temple (Thaan). The proceedings may be started. (4) On the report of the above information, an FIR No. 32/1988 under Secs. 302,147,148,149 ,498-A of IPC was registered against all the accused persons named in the FIR. The Site Plan Ex.P/6) and site inspection report (Ex.P/6A) were prepared. `Panchnamaof the dead body of Gurmit Kaur was prepared vide Ex. P/7 Bangles of the deceased were also seized as Ex. P/9 .The blood soil and clothes of the deceased smeared with bloods,were also seized. Post mortem was also got conducted vide Ex. P/1 Ornaments of the deceased were seized. Accused were arrested. The iron rod was also recovered at the instance of Balveer Singh by Ex. P/10.The statement of the prosecution witnesses were also recorded under Sec.161 Cr.PC. The recovered articles also sent for analysis to the FSL for report. Post mortem was also got conducted vide Ex. P/1 Ornaments of the deceased were seized. Accused were arrested. The iron rod was also recovered at the instance of Balveer Singh by Ex. P/10.The statement of the prosecution witnesses were also recorded under Sec.161 Cr.PC. The recovered articles also sent for analysis to the FSL for report. After completing required formalities, as per law, the accused were sent for trial and were challenged under Sec. 342,302 120B and 109 of the IPC, but later on, after hearing the arguments on the charge, Balveer Singh, appellant, was charged under Sec. 302 IPC, whereas, other accused Mahendra Singh, Jangir Singh, Balvinder Singh were charged under Sec.114 and 302 IPC. During trial, the FSL Report was also received vide Ex.P/12. (5) The prosecution had produced as many as 10 witnesses including Hardit Singh,PW 7 and Jangir Singh, PW 8 as eye witnesses. PW 3 Piaro Bai who had been told the story of occurrence by Hardit Singh and Jangir Singh was also produced. PW6 Bagga Singh who was witness to the preparation of maps and site inspection report, recovery of blood soil earth clothes was also produced. Dr. Mahaveer Prasad had appeared as PW1 who had conducted post mortem vide Ex. P/5. Barishal Singh, PW 4 and Khinv Singh Bhati PW 9 and Mohan Singh,PW 10 had been produced and had been associated with the investigation at the one time of the other.The other prosecution witnesses are the formal prosecution witnesses who had either produced the case property or had sent the same for FSL report. (6) All the accused had denied the occurrence in their statements under Sec. 313 Cr.PC Jangir Singh, husband of the deceased had taken a plea that on the date of the occurrence the deceased had gone to worship at the temple of the ancestors and her cries were heard. Jangir Singh had rushed to the place and had seen that some persons were beating the deceased, because of the darkness, he could not recognise the assilants. He had further taken a place that the body of his wife was brought to the house and report was made by her father to the police.The Police had come next day and information was sent to the parents of his wife, deceased, who had reached next evening. The story made by the prosecution is false. (7) The learned Addl. He had further taken a place that the body of his wife was brought to the house and report was made by her father to the police.The Police had come next day and information was sent to the parents of his wife, deceased, who had reached next evening. The story made by the prosecution is false. (7) The learned Addl. District & Sessions Judge had given a finding to the fact that death of the deceased Gurmit Kaur was caused in un-natural way and the bea- tings and injuries caused on the deceased were sufficient to cause the death. It was further held that main culprit and the assailant was Balveer Singh, who had caused the death. None of the other accused had given any beating or caused any injury to the deceased, therefore, no offence had been proved against any of the other accused except Balveer Singh. (8) PW 7 Hardit Singh, brother of the deceased and PW 8 Jangir Singh, are the eye witnesses . PW7 had narrated the same story in his deposition before the trial court made on 10.1.194. He had stated that his sister Gurmit Kaur was married to Jangir Singh a year back. His sister was not being given proper treatment and she was being beaten and harassed. He was told so by sister. He had further stated that he had gone to bring her sister Gurmit Kaur but she was not sent alongwith him. He had further deposed that even she was not sent for attending the marriage of his brother Balveer Singh. He had further deposed that his mother Piaro Bai PW 3 had also gone to bring his sister but she was not sent. Ultimately he and PW 8 Jangir Singh son of Bagga Singh had gone to the in-laws of the sister Gurmit Kaur to her village 2 KLD.There was a male child born to Gurmit Kaur about 20 days back. He deposed that Gurmit Kaur had expressed her apprehensions that she would be killed by her in-laws. He had met the accused persons and asked them that if they do not want that her sistershould live in their house,in that situation, she should be sent back to her parents. The accused persons had told them that this matter would be talked next morning. He had met the accused persons and asked them that if they do not want that her sistershould live in their house,in that situation, she should be sent back to her parents. The accused persons had told them that this matter would be talked next morning. He had stated that at about 7-8 PM.Balveer Singh had announced that he is now possessed with the spirit and therefore all should go to the temple of the ancestors (Thaan).He, his brother in-law so of Bagga Singh and her sister Gurmit Kaur were also asked to reach at the Thaan(temple). At that place Balveer Singh, appellant had announced that Gurmit Kaur is possessed by some evil spirit and therefore, it is necessary to extort the evil spirit from the body of Gurmit Kaur. Balveer Singh,started hitting Gurmit Kaur with iron rod of tractor.Gurmit Kaur started crying.He and Jangir Singh, PW 8 tried to interfere but they were threatened that in case, they interfere, they would also be beaten and therefore, they were caught hold by the accused persons. He was caught hold by Balvinder Singh and Jangir Singh, whereas, PW 8 Jangir Singh, was caught hold by Mehtab Singh and Mahendra Singh.Balveer Singh continued beating the deceased. The other accused persons had been provoking him to continue the beating and kill her. Gurmit Kaur had fallen down and died. She has given many injuries causing fractures. All the accused had taken him and Jangir Singh to their Dhani and not there for whole of the night. Next day, finding a chance to escape, he and his brother in law Jangir Singh, PW 8 had ran away on certain excuse. He had come to the police station, Gharsana to inform the police and whereas , PW 8 Jangir Singh had gone to his mother for informing her. He had further stated that police had come on the spot and had completed the formalities and prepared the maps and had also seized broken bangles, ornaments, blood soil earth, which was also sealed.The dead body was handed over to them. In the cross examination, he had stated that police had reached on the spot on 17th March,1988.He had stated that though there is some other`Dhanies around the Dhani of Mehtab Singh but none had come at the spot.There is a bus stand namely Khajuwala. In the cross examination, he had stated that police had reached on the spot on 17th March,1988.He had stated that though there is some other`Dhanies around the Dhani of Mehtab Singh but none had come at the spot.There is a bus stand namely Khajuwala. If a person is to go from the Dhani of Mehtab Singh to the Police Station, Gharsana and from that place, there is a `Pakka Road, the distance of bus stand from Mehtab Singhs Dhani is 7-8 Kms. There is another place named Sakara with the equal distance and from that place also, a person can reach Gharsana.The distance between place of occurrence and the police station is 40-45 Kms. He had taken the route to Gharsana Police Station via Rawala .The distance between Rawala to Gharsana is 30 Kms. His mother is staying at 9 KPD, whereas , he is staying at 1 PMT which at a distance of 4-5 Kms. He has further stated that Jangir Singh, PW 8 had reached Gharsana at about 2.30 PM alongwith his mother and Bagga Singh PW. He has further stated that Mehtab Singh had refused to send Gurmit Kaur deceased, on the reason that child of Gurmit Kaur is very young i.e. 20 days old. He has admitted that his sister had told him that she wanted to separate her, from the family of her in-laws but her in-laws were not ready to separate from the family. He has admitted that none of the accused persons had given any beating to him or PW 8 Jangir Singh but they were caught hold by the accused persons. He has further stated in the cross- examination that Balveer Singh had been beating his sister Gurmit Kaur for about 15-20 minutes and he had given injuries almost on every part of the body of Gurmit Kaur. Even, he has admitted that he had reached to the police station on 17th of that month, at about 10-11 PM. When the body was given to them,it had started decomposing and it was difficult to recognise the body. (9) PW 8 Jangir Singh, other eye witness had narrated the same facts and occurrence in sequence as PW 7 had narrated.PW 8 accompanied PW 7 to the house of in-laws of the deceased. When the body was given to them,it had started decomposing and it was difficult to recognise the body. (9) PW 8 Jangir Singh, other eye witness had narrated the same facts and occurrence in sequence as PW 7 had narrated.PW 8 accompanied PW 7 to the house of in-laws of the deceased. He had stated that Balveer Singh had given beating with iron rod on the head, arms, hands, neck and she had been crying and other accused persons had been provoking the appellant to give more beating to the deceased. Prosecution witnesses were given threats by the other accused. He was caught hold of by Balvinder Singh and Jangir Singh.Balveer Singh, continued beating the deceased till she fell dead. He further stated that after escaping from the place, PW7 Hardit Singh had gone to the police station and he had gone to inform the mother of the deceased, Piaro Bai and then they came back to the place, where the dead body was lying in the village. The recovery was made by the police at the spot. He has further stated that Bagga Singh was told the occurrence, when he had met them in Rawala Mandi and therefore, he also accompanied them. He has deposed that at the time of occurrence, he was not allowed to interfere and save the deceased as he was caught hold by Jangir Singh and Balvinder Singh, whereas Mehtab Singh and Mahendra Singh had caught hold of by Hardit Singh. He has denied the suggestion that he did not accompany the police at the spot and further that he had actually come to know of this incident, when, Mehtab Singh accused had sent such information to them. (10)PW.3 Piaro Bai wife of Kaka Singh, who is mother of the deceased and also of the complainant, Hardit Singh, PW.7 had narrated the facts in regard to the celebration of the marriage of her youngest daughter Gurmit Kaur with accused Jangir Singh about a year back, before the date of the occurrence. She had further narrated some of the circumstances to the fact that her daughter was not allowed to come to her house with his son Hardit Singh. She herself and again Hardit Singh accompanied by Jangir Singh had gone to bring her. She had further narrated some of the circumstances to the fact that her daughter was not allowed to come to her house with his son Hardit Singh. She herself and again Hardit Singh accompanied by Jangir Singh had gone to bring her. She had further deposed that she was told by Jangir about the murder of Gurmit Kaur and the day when she was told was Tuesday.She had stated that her statement was not recorded by the police, as the police was of the opinion that there was no need of recording her statement. (11) PW 4 and PW 5 are the official witnesses in regard to the conducting of the post mortem and also for FSL Report. (12) PW 9 is Khinv Singh Bhati, who had registered FIR on 16.3.1988 at about 10.00 PM. When Hardit Singh son of Kaka Singh , Rai Sikh, had come to the police station. He had visited the site and testified about certain recoveries. He had also recovered iron rod at the instance of Balveer Singh, accused appellant. He admits date of occurrence to be as15.3.1988 at about 8-9 PM as Suggested by the Cousel for the defence in the cross-examination. He denies the suggestion that FIR was not recorded on 16.3.88 and was, as a matter of fact recorded on 17.3.88. He admits that court of the concerned Magistrate is located at about 35 Kms: from the police station, Gharsana and ways of communications and transport are available day and night. He is unable to give any reason, as to why FIR was not sent on the morning of 17th March, 1988 to the Magistrate and he also cannot give any reason as to why the FIR had reached the Magistrate on 18.388 at 12.55 PM. He admits that photographs were taken at the site but denies the suggestion that photographs had not been produced in the court only because of the reason that dead body was actually lying in the Dhani of Mehtab Singh and not any where else. He admits that at the time of recovery of iron rod, he had not called any person from nearby residents, but had joined Bagga Singh, resident of 1 KSD and Sahab singh, resident of Khanuwali, as motbir witnesses. He admits that at the time of recovery of iron rod, he had not called any person from nearby residents, but had joined Bagga Singh, resident of 1 KSD and Sahab singh, resident of Khanuwali, as motbir witnesses. (13) PW 10 is Investigating Officer, who had reached at the spot on the next day of the recording of the FIR.He had made the recoveries, prepared the site plan, `Panchnama, collected blood soil earth etc. etc. He deposes that on the Ex. P/6 the site maps Ex. P/6A inquest report, Ex. P/7.Panchnama and other documents Ex. P/13 and Ex. P/15, the date of the FIR is mentioned as 17.3.88 instead of 16.3.88 but says this date as 17.3.88.is entered by mistake, because of the reason that all these papers were prepared on 17.3.88. He denies the suggestion that FIR has been written on 17.3.88 after the investigation. He admits that photographs of the dead body were taken at the spot but cannot say the reason as to why those photographs had not been brought on record. (14) The prosecution apart from oral evidence, had also produced as many as 23 documents. Ex.P/1 is the post mortem report dated 17.3.88 at 5.00 PM which mentions that dead body was in the state of decomposition and there were as many as five injuries. The cause of the death according to the opinion of the doctor was due to homicidal lacerated wound on right side of the skull that produced lacerated wound of brain and haemorrhage and shock. Ex.P/3 is the recovery of clothes of the deceased. Ex. P/5 is the FIR No. 32 dated 16.3.88 which has been received by the Munsif and Judicial Magistrate, Anupgarh, through Jagdish Chandra, FC No. 1228 on 18.3.88 at 12.55 P.M. Ex.P/6A is the site plan and spot report and Ex. P/6 is witnessed by Hardit Singh, Bagga Singh and one Biju Singh, who have thumb mar- ked on the same on 17.3.88. Ex.P/7 is the `Panchnama thumb marked by Bagga Singh, Piaro Bai, Hardit Singh, Kaka Singh and Ramnarain.Ex P/8 is recovery memo of the articles of the deceased and whereas, Ex.P/9 is said to be statement of the accused Balveer Singh, leading to the recovery of iron rod. FSL Report is Ex. P/12, whereas articles sent are to have been found with the strains of blood. On 17.3.88 vide Ex. FSL Report is Ex. P/12, whereas articles sent are to have been found with the strains of blood. On 17.3.88 vide Ex. P.13 the Investigating Officer had also prepared the memo in regard to the condition of the deceased in the presence of Bagga Singh Kaka Singh.He had given the SITUS of injuries on the dead body. vide Ex.P/15 ornaments worn by the deceased were sealed whereas, Vide Ex. P/16 and Ex. P/17 the blood stained earth was recovered. The body of the deceased was handed over to Hardit Singh on 17.3. .88 for funeral rites, after conducting of the post mortem vide Ex. P/18, Ex.P/19 to Ex.P/23 are the memos in regard to the arrest of the accused persons. (15) Basing on the above evidence, the appellant was convicted to under go life imprisonment, as already stated above. Learned counsel for the appellant has assailed the conviction on number of grounds;(i) that in the circumstances of the case, a doubt is created about the presence of eye witnesses PW 7 and PW 8 at the time of the occurrence, (ii) that story given by the prosecution is neither reliable nor trust-worthy, (iii) that there is definitely delay in recording the FIR, (iv) that only to explain the son-called delay in recording the FIR, Hardit Singh,complainamt cannot be believed, that despite of availibility of transport, he would walk on foot a distance of 45 Kms,(v) the eye-witnesses are very close relative of the deceased being brother and brother in -laws, (v) decomposition of the dead body itself shows that murder seems to have been committed much earlier than, the date and time mentioned by the prosecution,(vii) that non production of the photographs despite the admission on the part of the Investigating Officer, PW 9 and PW.10 cast a shadow and doubt on the prosecution story. If the photographs have been taken as stated, the non-production of the photographs has not been explained. (viii) that none of the independent witnesses has been associated by the prosecution in the investigations but close relatives had been made witnesses every where, (ix) that conduct of the accused persons is trust worthy, (x) that there is material contr dic- tions between the statements of the witnesses. The whole of the case mainly relies on the said two eye witnesses PW 7 and PW8 Hardit Singh and Jangir Singh son of Bagga Singh. The whole of the case mainly relies on the said two eye witnesses PW 7 and PW8 Hardit Singh and Jangir Singh son of Bagga Singh. The submission of the learned counsel for the appellant that the presence of these two witnesses is doubtful at the spot, coupled with the fact that prosecution story of committing such murder is also to be rejected as not reliable and not reposing confidence. These two witnesses are said to have reached Dhani of Mehtab Singh and his family a day prior to committing of the murder.Discussions are said to have been held as regard to the harassment being committed towards deceased Gurmit Kaur, sister of Hardit Singh. The only ground which seems to be brought on record is that in-laws of Gurmit Kaur had not allowed the deceased to visit her parents immediately a few days before the said murder. It has been brought on record that within one year of her marriage, she had visited her parents for about four times. It has also been stated by PW 7 that even he had visited Dhani of Mehtab Singh two or three times before that. It has also been deposed by him that Jangir Singh, husband of his sister had also visited her parents house once with Gurmit Kaur, herself and for remaining three times, Gurmit Kaur was brought to her parents house by him. It has been stated by this witness that as the child born to Gurmit Kaur was of only 20 days and because of that reason, Mehtab Singh was reluctant to send Gurnit Kaur to her parents on the marriage of his brother Balveer Singh. The reason for not sending Gurmit Kaur, deceased seems to be quite genuine. Even before that, it is likely that Gurmit Kaur was not sent to her parents because of her advance stage of pregnancy. No fault can be found for such opinion of Mehtab Singh and his family in this regard. It is a common knowledge that in the fauilies living in the villages, ladies with very advance stage of pregnancy, are immediately after pregnancy advised not to move and mix with the people which may cause some type of difficulty to the normal bearing of the child. It is a common knowledge that in the fauilies living in the villages, ladies with very advance stage of pregnancy, are immediately after pregnancy advised not to move and mix with the people which may cause some type of difficulty to the normal bearing of the child. In these circumstances, it cannot be assumed that there was any type of cruelty committed to Gurmit Kaur and for not sending her to the parents. It has been admitted by PW7 that accused had never restrained them to come to their house and to meet their sister. The only grievance seems, in the case is that Gurmit Kaur wanted to separate from the family with her husband, which was not liked by Mehtab Singh and other sons of Mehtab Singh. This fact has been admitted by PW 7 to the fact that because of this reason, there was some tension in the family. (16) The presence of these witnesses are also assailed on the ground that it is unimaginable that when her sister Gurmit Kaur was being beating by Balveer Singh, appellant none of the witnesses, PW7 and PW8 shall try to interfere,even at the risk of getting injuries on their bodies, as well. It has no where been stated that any of the other accused persons who have been named in the FIR were armed with any weapon whatsoever. It has been admitted by PW 7 that none of the accused persons or any other member had given any injury or had given any beatings to any of the prosecution witnesses. As perpost mortem report, there are as many as 5-6 injuries found on the body of the deceased but this witness goes on to say that Balveer Singh had hit the deceased and given her 200/400 injuries. This witness admits that after committing of said murder, they had come to Dhanni, PWs. were not tied but only asked to say there with oral threats only. This witness also admits that they had reached the police station on 17that about 10 or 11PM and further the other PW.8 Jangir Singh and his mother Piaro Bai had come to the police station on 17th about at1.00. or 2.00 PM.He positively remembers the date to be 17th but does not remember the month or the year. The important factor which comes out from this witness is that dead body had already de composed. or 2.00 PM.He positively remembers the date to be 17th but does not remember the month or the year. The important factor which comes out from this witness is that dead body had already de composed. This shows that murder, might been have committed, in mysterious circumstances, much earlier to the date as mentioned in the FIR. Another factor which is vital and cannot be believed is that despite the fact that this witness states that there was bus stand at a distance of 5 to 6 Miles from the place of Dhani and there is ways of communication and transportation available from the bus stand to the police station but still he chooses to walk at a stretch for 40 Kms, to the police station, Gharsana to lodge the report. In these days, if the communication and transportation is easily available as has been admitted by PW 10, Investigating Officer, it cannot be believed that witness would walk on foot for 40 Kms. to reach the police station, specially when her sister had been murdered and he is to takes all necessary steps in informing the police and getting the investigation started and also informing to his relatives. This plea has been taken, as it seems to give a reason for late registration of the FIR. This witness states that at the time, when the beating was given to her sister, he was caught hold of by Balvinder Singh and Jangir Singh accused and Jangir Singh. PW 8 was caught hold by Mehtab Singh and Mahendra Singh, PW8 Jangir Singh when examined on this point, says to the contrary that PW 8 Jangir Singh was caught hold by Jangir Singh and Balvinder Singh, accused and PW 7 was caught hold of by Mehtab Singh and Mahendra Singh. This is one incident where the eye witnesses who are very close relatives of the accused persons and know them fully, will not forget as to who was caught hold of by whom. PW 7 and PW 8 contradict each on this score. (17). The statement of Jangir Singh, PW 8 is also not reliable and it is doubtful whether he was at the spot, or he ever witnessed the occurrence. He also stated that accused persons had only asked them not to raise any cries, otherwise they will be done with. PW 7 and PW 8 contradict each on this score. (17). The statement of Jangir Singh, PW 8 is also not reliable and it is doubtful whether he was at the spot, or he ever witnessed the occurrence. He also stated that accused persons had only asked them not to raise any cries, otherwise they will be done with. He says that Mehtab Singh and Mahendra Singh had caught hold Hardit Singh. PW 7 whereas, he himself was caught hold by Jangir Singh and Balvinder Singh. As discussed above, this is contrary to what PW 7 says. It is unbelie- vable that after committing murder, these two witnesses would be brought to Dhani and without being harmed in any way, they would be asked to stay clam and not to do any overt act. None of the accused persons was armed. If these persons, PWs. were not allowed to move during night, it is unimaginable, that these two persons would be left alone at the time of tead time in the morning to enable them to run away from the place, when, all of the accused persons had gone to take tea. It is also not believeable that after killing deceased at the Dhani in open place, all the accused persons except Mehtab Singh shall leave the place where the dead body was lying during the night. It is stated that Mehtab Singh had stayed there to guard the body so that stray dogs may not harm it. This is an un-natural act. In case, all the accused persons had really killed deceased in the manner as stated by the eye witnesses, the first thing which a criminal would do is to dispose of body of the create some of the circumstances so that no suspicious is created towards accused persons and he would also try to finish up the traces of murder. It is stated that even the jeeps are also available on hire, and that, buses are also available to reach Gharsana Police Station, but still Prosecution witness walk on foot for 40 Kms. to report the matter to the police station. It is stated by him that when he had reached Rawala, he had not told anybody about this murder. It is stated that even the jeeps are also available on hire, and that, buses are also available to reach Gharsana Police Station, but still Prosecution witness walk on foot for 40 Kms. to report the matter to the police station. It is stated by him that when he had reached Rawala, he had not told anybody about this murder. The story given by the prosecution witnesses is definitely not reliable and thus created doubt about their veracity of statements and also presence at the spot at the time of occurrence. (18). Two witnesses PW 9 and PW 10 who had been conducting the investigations had categorically stated that photographs of the dead body at the site were taken by the prosecution during the time of investigation of the case, but very strangely non of the photographs had been produced nor exhibits. No reason whatsoever has been stated by any of the prosecution witnesses as to why the pho- tographs of the dead body and surroundings, when had been taken, had not been produced on record. May be, the prosecution had deliberately concealed this and kept the very vital evidence from the perusal of the court on the reason that dead body might have been photographed at the Dhani and not at Thaan, i.e. Temple. This is a suggestion by the defence which can be accepted in the present circum- stances of the case to the fact that when dead body was not found lying at Thaan, when the police had reached at the spot and it was at Dhani. It is also interesting note that even though all the prosecution witnesses are said to be present at the time of investigation, after recording of the FIR. But non accompanies the dead body when it is taken for post-mortem. If any of the prosecution witnesses, who were very close relatives to the deceased, had brought the police when the dead body was lying at Thaan an alleged, then in the circumstances of the case, it was but natural that some person would also accompany the body of the deceased when it is sent for post mortem. (19). Though an effort has been made to explain the delay for lodging of the FIR of more than about 24 hours from the time of occurrence of the incident. (19). Though an effort has been made to explain the delay for lodging of the FIR of more than about 24 hours from the time of occurrence of the incident. Even assuming lodging of the delayed FIR, is not fatal, there is no explanation provided by the prosecution about the inordinary delay of reaching the special report of FIR to the Magistrate. The special report has been received by the Magistrate on 18th March, 1988 at 12.55 PM, when the distance between police station and court is about 30 Kms. and modes of communication and transport are also available. These are some of the circumstances, which show that FIR might have not been recorded on 16.3.88 but might have been recorded on 17.3.88. Even some of the documents i.e. Ex. P/6 the site maps, Ex.P/6A inquest report, Ex. P/7 Panchnama and other documents Ex. P/13 and Ex. P/15, the date of FIR has been shown as 17.3. .88. The PW 7 in his statement also says that it was 17th of March, 1988 when he had gone to police station to report the offence. It is every possibility that FIR can be of a post investigation, though in view of the facts that presence of prosecution witnesses. PW 7 & PW 8 eye-witnesses at the spot, at the time of occurrence is wholly doubtful, the delay or post investigation aspect of the matter, shall not have much bearings on the case. (20). In Mehraj Singh vs. State of UP (1), it was held that ``FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embelishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity danger also exaggerated story. Delay in lodging the FIR often results in embelishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity danger also exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. (21). No explanation has been given by the prosecution as to why the special report was sent with delay or received late. (22). It was also held by the Honble Supreme Court in this very case that very close witness who is present at the spot, makes no efforts to save the deceased, cannot be held to be reliable, of the story of his presence at the spot. In the present case, witnesses who is said to be at the spot when the murder is being committed and the PW 7 & PW 8 do not try to interfere in saving the deceased from the murders attack, when accused persons are not at all armed, no harm or injury has been caused to PW 7 & PW 8, it is stated that they were given only oral threats, they were left alone as well, in these circumstances, when on of the PW is real brother of the sister, it shall not be believed that he would not shout or cry to attract the people from the nearby Dhanies. It is admitted that Dhani of Mehtab Singh is surrounded by Dhani of other people as well and had, the witnesses been present there, their natural act would have been to raise a hue and cry to attract the residents of nearby Dhanies. It is admitted that Dhani of Mehtab Singh is surrounded by Dhani of other people as well and had, the witnesses been present there, their natural act would have been to raise a hue and cry to attract the residents of nearby Dhanies. It is also interested to note that almost in all the memos and investigations, prepared by the prosecution, the attesting witnesses are the very close relatives of the deceased and no one from the village or the Dhani or from the surroundings Dhanies had been associated. Though it is not fatel to the prosecution if the independent witnesses are not associated with the prosecution/investigation, but in the circumstances, the evidence produced by the prosecution is to be closely scrutinised when only close relatives are associated. In another case report in Lala Ram vs. State of Raj. (2), a Division Bench of this Court, Honble Mr. Justice M.C. Jain and Honble Mr. Justice B.R. Arora had held that non-production of the photographs and giving no reason for not producing the photographs, when photographs had been taken, throws doubt on the story of the prosecution to the fact that if the photographs would have been produced, then they would have thrown some light about the condition of the dead body and surroundings of the place of occurrence. The proseuction seems to have been deliberately not produced the photographs for the reason that had they had been produced, it would not have tallied with the prosecution story. (23). From the narration of above facts, it is found that presence of both PW 7 and PW 8 at the spot is very doubtful and they had not seen the occurrence. These are only two witnesses on whose testimony, the whole of the prosecution case was based All other witnesses are formal or have deposed on the basis of information received either from PW 7 or PW 8. Thus, the prosecution story cannot be believed, as alleged and the benefit of doubt is to be given to the appellant. (24). It is true that a heinous crime has been committed and it might have been committed because of any type of quarrel between the parties. Thus, the prosecution story cannot be believed, as alleged and the benefit of doubt is to be given to the appellant. (24). It is true that a heinous crime has been committed and it might have been committed because of any type of quarrel between the parties. The prosecution could have acted mere diligently by bringing real accused person to book but for the reason that present appellant has been connected with the murder only on the statement of PW 7 and PW 8, whose statements are likely to be rejected on the ground that their presence at the spot was doubtful and their conduct was un natural. It is also unimaginable that the appellant would commit murder on the day, when both PW 7 and close relative, brother in law PW 8 are already present in the village at the house of the appellant. The appellant is accepted. From the reasons given above, we have no option but to accept the appeal of the accused appellant and to set aside the conviction of the appellant Balveer Singh son of Mehtab Singh, resident of 2 KLD, by setting aside the judgment of conviction dated 3.12.94 passed by learned Addl. District & Sessions Judge, Raisingh Nagar. It is order that appellant Balveer Singh be set free and released forth with, if not required in any other case.