JUDGMENT - V.H. BHAIRAVIA, J. :---This appeal is preferred against the order of conviction and sentence dated 26th August, 1983, passed by the learned Addl. Sessions Judge, Pune in Sessions Case No. 255 of 1982. The appellant No. 1 has been convicted for offence punishable under section 302 I.P.C. and he has been sentenced to suffer R.I. for life and he has also been convicted for offence punishable under section 323 r/w. section 34 I.P.C. and sentenced to suffer R.I. for six months and to pay a fine of Rs. 300/-, in default to suffer R.I. for two months. The substantive sentences were ordered to run concurrently. The appellant No. 2 has been convicted for the offence punishable under section 323 r/w section 34 I.P.C. and he has been sentenced to suffer R.I. for six months and to pay fine of Rs. 300/-, in default to suffer R.I. for two months punishable under section 323 r/w section 34 I.P.C. 2.The prosecution case in brief is that, on 17-8-1982 at about 9.30 p.m., P.W. 2 complainant Ashok was going on a bicycle to Kalas from Jadhav Vasti. As he came near the temple of Vithoba Rakhumai, he saw appellants armed with hoes coming towards him. It is alleged that appellant No. 1 suddenly gave a blow with hoe on his head and because of that blow, he sustained bleeding injury on his head. He then ran away from the place and reached to the house of Vimal, the wife of Vithal and narrated the incident to Vithal and Vimal. It is the prosecution case that after seeing the injured P.W. 2 Ashok, Vithal immediately started for going to house of Ashok with a view to inform his family members. It is the further prosecution case that while Vithal was returning from the house of Ashok P.W. 2, the appellants attacked Vithal near Vithal-Rakhumai temple. Thereafter, P.W. 2 took Vithal in a rikshaw to the police station and narrated the incident. Police did not reduced it into writing but they were sent to Sasson Hospital with Yadi and Vithal was admitted as indoor patient and P.W. 2 Ashok was given treatment as outdoor patient. From the hospital, it is stated that Ashok came back to his house. His complaint came to be recorded by P.S.I. on the next day i.e. on 18-8-82. From the hospital, it is stated that Ashok came back to his house. His complaint came to be recorded by P.S.I. on the next day i.e. on 18-8-82. It also reveals that the statements of other alleged eye witnesses viz. complainant P.W. 2, P.W. 5 and P.W. 6 were recorded on 19-8-82. Complaint was recorded on 18-8-82 and thereafter investigation started. After completing the investigation, chargesheet was submitted and the appellants were committed to the Sessions Court for trial. It reveals that firstly, the charge was framed for offences punishable under sections 307 and 326 r/w. section 34 of I.P.C. Pending trial, it reveals from the record that the injured Vithal died on 18-4-83 in Ruby Hospital. It reveals that the injured Vithal remained unconscious till he died on 18-4-83. Therefore, charge was altered by the trial Court and the appellants were chargesheeted for the offence punishable under section 302 r/w. section 34 I.P.C. 3.The learned trial Court after recording the prosecution evidence held the appellant No. 1 guilty for commission of murder of Vithal and sentenced him to suffer R.I. for life. Both the appellants were also convicted for the offence punishable under section 323 r/w. section 34 I.P.C. and each of them were sentenced to suffer R.I. for six months and to pay a fine of Rs. 300/ in default to suffer two months S.I. Hence this appeal. 4.Heard Mr. Borulkar, learned A.P.P. for respondent-State. Having gone through the record and proceedings of this case, it appears that the conviction under section 302 I.P.C. is unsustainable. The prosecution relied on the direct evidence. The complaint (Exh. 13) regarding the incident of 17-8-82 came to be recorded by P.S.I. (I.O.) at the house of P.W. 2 Ashok on 18-8-82 i.e. delayed by 18 hours and thereafter, the evidence of other eye witnesses viz. P.W. 2, P.W. 5 and P.W. 6 on 19-8-82. The prosecution relied on the direct evidence. The complaint (Exh. 13) regarding the incident of 17-8-82 came to be recorded by P.S.I. (I.O.) at the house of P.W. 2 Ashok on 18-8-82 i.e. delayed by 18 hours and thereafter, the evidence of other eye witnesses viz. P.W. 2, P.W. 5 and P.W. 6 on 19-8-82. The alleged incident took place near Vithal Rukhmai temple at about 11 p.m. According to P.W. 2 Ashok who was injured in the first incident, taken place at about 9.30 p.m. and he sustained head injury at the hands of appellant No. 1 with hoe and on seeing the bleeding injury, Vithal Tingare went to the house of Ashok to communicate the incident and as he did not return back to home, P.W. 2 and Vimal, the wife of Vithal came out of the house and started to go towards the temple, when they heard some commotion. As they reached near the temple, P.W. 2 saw the appellant No. 1 inflicting blow on the head of Vithal with Fawda and Vithal fallen down in an unconscious condition. It is also stated that he regained consciousness after some time. Ashok, P.W. 2 and Vithal then went to the Police Station in a auto rickshaw of Vilas. There they met P.S.I., P.W. 10 and narrated the incident but the complaint was not recorded. From the police station, they were sent to Sassoon Hospital in the same rickshaw and one police constable, P.W. 9 was sent to the hospital to watch the patient. It reveals that as Vithal was in unconscious condition, his dying declaration could not be recorded immediately. P.W. 2 was an injured witness. Though he was an injured witness, he did not file any complaint immediately and he had chosen to remain at home. The complaint Exhibit 13 came to be recorded at a very late stage i.e. after 18 hours and the story recorded in the complaint is not corroborated by the prosecution witnesses. The injuries sustained by deceased Vithal are as follows :--- External Injuries:--- 1. Bed Sores 4" x 3" present on right buttock, Left buttock 4" x 3" on sacral 4" x 3", right shoulder back 4" x 3", left shoulder back 4" x 3". 2. Old heeled scars of heeled wound seen on right parietal region 1½" x 1". 3. Old operated scar left parietal temporal area. Internal injuries:--- 1. Bed Sores 4" x 3" present on right buttock, Left buttock 4" x 3" on sacral 4" x 3", right shoulder back 4" x 3", left shoulder back 4" x 3". 2. Old heeled scars of heeled wound seen on right parietal region 1½" x 1". 3. Old operated scar left parietal temporal area. Internal injuries:--- 1. Left parieto temporal area, bone is removed due to operation. 2. The brain is 1180 grams. It shows yellow staining on left hemisphere of brain with liqui faction due to laceration in left posterior region. 3. Right lung is 950 grams and left lung is 1140 grams and both the lungs show pneumonia all over. The external injury No. 2 is corresponding to internal injury No. 2. From these injuries, it is opined by Doctor, P.W. 7 that it is possible by muddemal article. 5.The prosecution evidence does not inspire confidence of the Court as the occurrence of the incident appears to have been suppressed by the prosecution. P.W. 2 deposed that as there was delay in returning home, P.W. 2 and Vimal, the wife of Vithal came out of the house. They heard some commotion. Therefore, they rushed to the spot near the temple and saw that appellant No. 1 was inflicting blows with fawda on the head of Vithal and Vithal was fallen down in an unconscious condition. In his cross-examination, he has admitted that he has not stated in the complaint the fact that as Vithal did not return to house for long time, he and Vimal came out of the house in search of Vithal. He has admitted in his cross-examination that he has not stated in complaint Exhibit 13 regarding the role played by appellant No. 2 Dnyaneshwar who caught hold of Vithal. P.W. 5 Ramchandra who claimed to be the witness to the incident, does not say about the presence of Ashok, P.W. 2 on the spot of incident on that day. Neither P.W. 2 says about the presence of P.W. 5 i.e. Ramchandra on the spot of incident. P.W. 5 Ramchandra who claimed to be the witness to the incident, does not say about the presence of Ashok, P.W. 2 on the spot of incident on that day. Neither P.W. 2 says about the presence of P.W. 5 i.e. Ramchandra on the spot of incident. Further, there is one more eye witness who narrated different story that accused persons came to the house of Vithal Tingare to beat Ashok on 17-8-82 at 9.30 p.m. and according to him, Vithal had gone to the house of P.W. 2 on bicycle and while coming from his house, the appellants obstructed him and compelled Vithal to get down from the bicycle and some maramari took place between them. According to him, accused No. 1 inflicted blow by Fawda on the head of Vithal. The evidence of these three alleged eye witnesses do not corroborate each other and speaks the different story regarding the genesis of the occurrence of the incident. 6.Mrs. Agarwal, learned Counsel for the appellants, submitted that their presence on the place of incident itself is doubtful as the statements of these witnesses came to be recorded after 18 hours. In support of her arguments, the learned Counsel has cited the case of (Ganesh Bhavan Patel and another v. State of Maharashtra)1, reported in A.I.R. 1979 S.C. 135, wherein it has been observed thus:--- (B) Criminal P.C. (2 of 1974) section 161---Recording of Statements-Delay in-Effect of-Duty of Investigator-Criminal Appeal No. 1492 of 1970, Reversed. "Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses". Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses". Further, it is held that :--- "The most important of these circumstances is the conduct of S.I. Patil in not recording that "first information" allegedly given by Shinde and Ravji on that occasion. S.I. Patil admitted that he did not record the information given to him by Shinde and Ravji about the occurrence, on that occasion. The information, which he then received, was about the commission of a cognizable offence. It was, therefore, the duty of S.I. Patil (who was incharge of the Police Station) to record it in accordance with the provisions of section 154 Cr.P.C.; but he did not do so. The explanation given by him was that it was the practice of this Police Station not to record such information until a message was received from the Hospital with regard to the condition of the injured person. This explanation of Patil's failure to do what was his statutory duty, was mere moonshine and was rightly repelled by the learned trial Judge". It will bear repetition that the learned Judges of the High Court have disbelieved Ravji and accepted S.I. Patil's bare word of mouth, both with regard to the time of recording Ravji's statement and Ravji's having informed Patil in the Police Station at 7.30 p.m. about the accused being the assailants of the deceased, when Ravji and Shinde took the injured there in a taxi. As noticed already, one of the reasons given by the High Court for rejecting Ravji's testimony on this point, is that he was a mere labour boy having no sense of time. With respect, this reason appears to us manifestly un-sound. Labourers, masons and artisans who work on daily wages for fixed hours, have an acute sense of time. There was nothing indefinite or unbelievable in Ravji's version to the effect that his statement was recorded by the Police Sub-Inspector between 12 midnight and 1 a.m., while his signature was obtained on that statement probably at 3 a.m. No question was put to him to test his "sense of time". There was nothing indefinite or unbelievable in Ravji's version to the effect that his statement was recorded by the Police Sub-Inspector between 12 midnight and 1 a.m., while his signature was obtained on that statement probably at 3 a.m. No question was put to him to test his "sense of time". Nor was any attempt made in re-examination to elicit a clarification, if one was needed, with a view to reconcile this version of the witness with that of the prosecution case, as laid by S.I. Patil, about the time of recording Ravji's statement, treated as the F.I.R." 7.In the instant case, the Investigating Officer, P.W. 10 admitted in his oral evidence that on 17-8-82 at about 10.15 p.m., Ashok Jadhav, P.W. 2 and injured deceased Vithal Tingare had gone to him at police chowky and at that time, both were sustained injuries and P.W. 2 narrated the incident before him. He also alleged to have told that both the accused were armed with hoes. He has admitted that no F.I.R. or complaint was recorded at that time and he merely sent the injured to Sassoon Hospital with Yadi. He has admitted in his evidence that he went to the house of P.W. 2 Ashok on 18-8-82 at about 9.30 p.m. and made enquiry. He has also admitted in his deposition that he has visited the vicinity of other eye witnesses but he did not find any eye witness in that vicinity till 19-8-82. The statements of P.W. 5 and P.W. 6 came to be recorded on 19-8-82 i.e. after 3 days. Further, the infirmity in the prosecution case is that, no Chemical Analyser's report has been obtained by the Investigating Officer. The infirmities appeared on the face of record in recording the statements and in the investigation, in our view, create doubt in the truthfulness of the prosecution story. The Supreme Court in the case of (Thulia Kali v. The State of Tamil Nadu)2, 1972 Cri.L.J. 1296, in Head Note (B) it is held thus:--- (B) Criminal P.C. (1898), section 154---Importance of the First Information Report-Delay in giving information. "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 8.In the instant case, there is no such explanation coming forward. P.W. 10 has given explanation that the eye witnesses were not available in their vicinity and therefore, he could not record their statements. This explanation, in our view, is not satisfactory. Therefore, the principles laid down by the Supreme Court in 1972 Cri.L.J. 1296 are applicable in the instant case that the evidence of eye witnesses cannot be relied upon as truthful witnesses. Their presence at the scene of offence itself is doubtful. Therefore, the conviction could not be sustained in such evidence and the order passed by the trial Court deserves to be quashed and set aside. 9.In the result, this appeal is allowed. The order of conviction and sentence dated 26th August, 1983 passed by the learned Addl. Sessions Judge, Pune is quashed and set aside. Bail bond of the appellants shall stand cancelled. Appeal allowed.