JUDGMENT 1. The appellants were prosecuted in Sessions Trial No. 104 of 1987 before the Additional Sessions Judge, Narsinghpur, for committing murder of Motilal and for other minor offences and they have been convicted, under section 302 read with section 149 and 147 of the Indian Penal Code and sentenced to imprisonment for life and R.I. for one year respectively. The appellant Nos. 1, 2, 3, 5 and 6 have been further convicted under sections 148 and 323/149 of the Penal Code and sentenced to R.I. for one year, under each section. Appellant No. 4, Hori Singh has been convicted under section 323 of the Penal Code for causing injury to Shyamlal (PW 11) and sentenced to undergo R.I. for one year. 2. Counsel for the appellants contended that appellant No.5 Dev Singh has expired during the pendency of this appeal. The appeal, therefore, abates against appellant No.5 Dev Singh. 3. The prosecution case, as set out in the FIR (Ex. P.1), lodged by complainant Munnalal (PW 1), son of Motilal (since deceased) at Police Chouki Jhoteshwar, on 17.6.1987 at 18.20 hours, in presence of his brother Shyamlal (PW 11) and Dashrath (not examined), is that on that day in the afternoon at about 3.00 O'clock, while he was going in his field along with his brother Shyamlal (PW 11) and Dashrath, he saw his father, Motilal, coming on the road from Nagawara on his bicycle, who had gone to Jhoteshwar, in the morning for some urgent work.When his father reached near Jhiriyawala Mango Tree, appellant Dhannu Singh armed with Farsi, appellant Ajmera Singh armed with Tabbal, appellant Dev Singh armed with Sang, appellant Hori Singh armed with Paron a and appellant Bhupat Singh armed with Kulhari suddenly emerged there by the side of the mango tree and they assaulted his father Motilal with their respective weap::ms. His father fell on the ground, after sustaining injuries and blood started oozing out from his injuries. He raised alarm which attracted the attention of Nanhelal and Nathuram who were working in their field and Ram Singh, who was guarding fruits of the Mango tree and Jirelal (PW 2), who was coming behind them, saw the incident and came there. In the meanwhile, appellants took to their heels towards Nandwara. He raised alarm which attracted the attention of Nanhelal and Nathuram who were working in their field and Ram Singh, who was guarding fruits of the Mango tree and Jirelal (PW 2), who was coming behind them, saw the incident and came there. In the meanwhile, appellants took to their heels towards Nandwara. He rushed to his home on the bicycle of his father and brought a bullock-cart and while he was taking his father to Shrinagar Hospital, appellants intercepted his bullock cart at village Talwara, but he sped the bullock cart. In the meanwhile, appellant Hori Singh assaulted his brother Shyamlal (PW 11), on his back by means of a Lathi. On reaching Shrinagar his father Motilal died. Then he went to Jhoteshwar Police outpost and lodged the report. The motive for the incident was previous grudge and enmity. 4. On the basis of the report lodged by the complainant Munnalal (PW 1), merg intimation (Ex. P. 3) was recorded by A.S.1. U.R. Sharma (PW 8) at 18.15 hours. Thereafter at 18.20 hours First Information Report (Ex. P.1) was drawn up. At 6.00 p.m. A.S.1. A.S. Ansari (PW 12) received a Radio message about the incident at Gotegaon Police Station and went to the Shrinagar Bus Stand. 5. On 18.6.1987, A.S. Ansari (PW 12) prepared Panchnama (Ex. P. 5) of the dead body of the deceased, in presence of Barai (PW 4), Shyamlal (PW 11) and others and recorded the statement of the witnesses and sent the dead body to Shrinagar Hospital for post mortem (',,:amination. Dr. Chetan Lalwani (PW 3) conducted autopsy on the dead body on 18.5.1987 and found following injuries on the person of the deceased :-Incised wound over on the right leg size 3/4" x 1/3" bone libia fractured wound 5" below right knee. Incised wound 6" x 2 1/4" between both scapular region. Incised wound 4 1/2" in length both incised wounds were crossing each other in middle between both scapular region. In the- opinion of the doctor, the death was due to shock and haemorrhage on account of injury Nos. 7 and 8 which were sufficient in the ordinary course of nature to cause death of the deceased,. vide post mortem report Ex. P. 3. In response to the query of A.S. Ansari (PW 12) with reference to the wounds of the deceased and the weapons recovered from the appellants sent to Dr. 7 and 8 which were sufficient in the ordinary course of nature to cause death of the deceased,. vide post mortem report Ex. P. 3. In response to the query of A.S. Ansari (PW 12) with reference to the wounds of the deceased and the weapons recovered from the appellants sent to Dr. Lalwani (PW 3) he opined that injury Nos. I, 3, 7 and 8 were possible by Kulhari (Art. G. I), injury Nos. 5 and 6 could be caused by Kulhari (Art. H. 1), as also by the Farsi. Injury Nos. 1, 5 and 6 could be caused by Parona and injury Nos. 2 to 4 could be caused by Lathi. He, however, gave no opinion about the possibility of any injury caused by a Sang as per his report Ex. P. 4. On Police requisition, Dr. Lalwani (PW 3) also examined Shyamlal (PW 11) and found one abrasion on his back right side parallel to the spinal cord, 12 cm x 1/2 cm caused by hard and blunt object, as per injury report Ex. P. 2A. 6. After the Panchanama, seizure of blood stained and plain earth and clothes of the deceased were made vide Ex. P. 7 and P. 15 and a map of the place of incident Ex. P. 14 was prepared. On 14.7.1987 Gangaram Patwari (PW 7) also prepared a map of the place of the incident, Ex. P. 12. On the memorandum of the appellant Saheb Singh a Parona and a Sang were recovered and on the memorandum of appellants Dhannu Singh, Hori Singh, Ajmer Singh and Bhupat Singh, Farsi, Clothes, Lathi, Tabbal and Kulhari were recovered and seized vide Ex. P.•17, 19,21 and 23 and sent to the Forensic Science Laboratory, Sagar, for chemical examination vide Ex. P. 16. On chemical examination of the articles, by the Forensic Science Laboratory, the same were not found stained with blood, vide its report Ex. P. 25. 7. After the completion of the necessary formalities and the investigation, charge-sheet was submitted against the appellants and after the cognizance and the commitment the case came up for trial before the Additional Sessions Judge, Narsinghpur. 8. P. 25. 7. After the completion of the necessary formalities and the investigation, charge-sheet was submitted against the appellants and after the cognizance and the commitment the case came up for trial before the Additional Sessions Judge, Narsinghpur. 8. The defence of the appellants was that Onkar Singh (DW 1) had for the first time seen the deceased lying injured in a pool of blood near the mango tree while he was going to Nagawara and he informed complainant and his brothers that their father was lying injured in a pool of blood. Then the complainant Munnalal (PW 1) and his brothers came to know about the incident and the appellants have been falsely implicated on account of the criminal case pending between them and the dispute over the passage in the field which the deceased had blocked. There was also alibi defence of Bhupat Singh that on the date and time of incident, he was at Chandan Kheda, a place 10 to 12 kilometres away from village Nagwara. 9. The learned trial Court, on consideration of the evidence, convicted and sentenced the appellants in the manner mentioned aforesaid. 10. Shri S.L. Kochar, learned counsel appearing for the appellants, has contended that complainant Munnalal (PW I) and Shyamlal (PW 11) who have deposed as eye witness to the incident are interested partisan and chance witnesses. Their testimony is not corroborated by any independent witness and FIR (Ex. P. I) is ante-dated and ante-time. 11. The prosecution case primarily rests on the evidence of complainant Munnalal (PW I) lirelal (PW 2) and Shyamlal (PW II). Complainant Munrialal (PW I) and Shyamlal (PW II) are the sons of deceased Motilal, while lirelal (PW 2) is a cate-man of the deceased and his casual labour. All the three eye witnesses are interested, partisan and chance witnesses. 12. It is settled that witnesses are interested and parties by itself is no ground to discredit their testimony, if it is otherwise found to be consistent and reliable The Apex Court in the case of Bahal Singh v. State of Haryana ( AIR 1976 SC 2032 ) held: "If by confidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautions and close scrutiny." In Sarwan Singh v. State of Punjab ( AIR 1976 SC 2304 ) the Apex Court observed ;- "It is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration." 13. Admittedly, Munnalal (PW I) and Shyamlal (PW I 1) were on inimical terms with the appellant on account of a criminal case u/s. 324 IPC, pending between them and a dispute over the passage, which the deceased had blocked. Jirelal (PW 2) belonged to the faction of complainant party. Therefore, their evidence needs to be scrutinised with care and caution. The complainant Munnalal (PW1), Jirelal (PW 2) and Shyamlal (PW 11) claimed to have seen the appellants assaulting the deceased Motilal with their respective weapons on the road while the deceased was cowing on his bicycle from Jhoteshwar. But strangely enough no blood marks were found on the Toad where the deceased is alleged to have been assaulted. The blood marks were found under the Mango tree, which was about 15 feet away from the place of incident, as per seizure memo Ex. P. 7 and the evidence of the Investigating Officer A.S. Ansari (PW 12). Jirelal (PW 2) in his Court statement has tried to cover up the infirmity by stating that the deceased had been dragged from the road to the Mango tree, but his evidence in this regard is not consistent with his case diary statement (Ex. D.2). 14. P. 7 and the evidence of the Investigating Officer A.S. Ansari (PW 12). Jirelal (PW 2) in his Court statement has tried to cover up the infirmity by stating that the deceased had been dragged from the road to the Mango tree, but his evidence in this regard is not consistent with his case diary statement (Ex. D.2). 14. The evidence of complainant Munnalal (PW 1), Jirelal (PW 2) and Shyamlal (PW 11) that all the appellants assaulted the deceased with their respective weapons and appellant Dev Singh (since deceased) was armed with a Sang is corroborated by medical evidence of Dr. Lalwani (PW 3), in his report sent to the Investigating Officer with reference to his query about the wound and weapons. 15. A perusal of Panch nama (Ex. P. 5) of the dead body of the deceased reveals that the Panchnama was prepared in presence of the complainant Munnalal (PW1) and his brother Shyamlal (PW II), but name of the assailants of the deceased is not mentioned in the Panchnama. Moreover, the possibility of the incident being seen by Munnalal (PW 1), Jirelal (PW 2) and Shyamlal (PW 11) at the mango tree from quite some distance is highly doubtful in view of the fact that there was 8 feet high mandhi plants on both sides of road. More so by Jirelal (PW 2), who was going much behind the complainant Munnalal (PW 1) and Shyamlal (PW 11) to Shrinagar to purchase sugar for the first time on that day, and had never gone to Shrinagar, prior and subsequent to the date of incident. 16. It is evident from the FIR (Ex. P. 1) that Nanhelal, Nathuram and Ramsingh had seen incident, who are independent and material witnesses for unfolding the truth of the prosecution story, but their evidence has been withheld by the prosecution and has not offered any explanation for their non-examination. 17. 16. It is evident from the FIR (Ex. P. 1) that Nanhelal, Nathuram and Ramsingh had seen incident, who are independent and material witnesses for unfolding the truth of the prosecution story, but their evidence has been withheld by the prosecution and has not offered any explanation for their non-examination. 17. In, Bir Singh v. State of U.P. ( AIR 1978 SC 59 ) the Apex Court observed:-- "Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Court would be justified in drawing an adverse inference against the prosecution." In Sarwan Singh (supra) the Apex Court further observed :- "The law is well settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eye-witnesses who had actually seen the occurrence and were therefore material to prove the case." 18. The evidence of PW 2 Jirelal, who is a chance witness, is also not corroborated by any reliable evidence. His evidence is also not free from doubt. 19. In Muluwa v. State of M.P. ( AIR 1976 SC 989 ) has held: "The evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighted not counted." 23. An adverse inference has to be drawn against the prosecution for withholding the evidence of independent witnesses. The testimony of Munnalal (PW 1), Jirelal (PW 2) and Shyamlal (PW 11), as eye witnesses to the incident, cannot be relied upon for want of corroboration by any independent witness. 24. Abrasion found on the person of Shyamlal (PW 11) was parallel to the spinal cord, which could not have been caused while he was taking his father to Shrinagar. Such injury could only be caused when the body of Shyamlal came in contact with the fixtures of the bullock -cart. 25. 24. Abrasion found on the person of Shyamlal (PW 11) was parallel to the spinal cord, which could not have been caused while he was taking his father to Shrinagar. Such injury could only be caused when the body of Shyamlal came in contact with the fixtures of the bullock -cart. 25. Besides this, it is evident from the evidence of complainant Munnalal (PW 1) that he had lodged information about the incident at Jhoteshwar Police Outpost on 17.6.1987 at about 18.15 hours and had disclosed the name of the assailants of the deceased, but no FIR was drawn up on the basis of his report. Instead a Marg intimation Ex. P. 3 was recorded. The FIR Ex. P. 1 is subsequent to the Marg intimation. It is evident from the evidence of A.S. Ansari (PW 12) that he had already received a Radio message about the incident at the police station at 16.00 hours, but Rojnamcha has not seen the light of the day and same appears to have been withheld by the prosecution with oblique motive. Therefore, the complaint (Ex. P. 1) cannot be treated as first information report in view of the Panchnama of the deceased (Ex. P. 5) which was made by the I.O. A.S. Ansari (PW 12) on 18.6.87 in presence of the complainant and his brother Shyamlal, wherein the name of the assailants are not mentioned, while the FIR is alleged to have been drawn on 17.6.1987 and the statement of Munnalal (PW I), Jirelal (PW 2) and Shyamlal (PW 11) had already been recorded. The FIR Ex. P. 1 thus appears to be ante-dated and anti-timed. 26. In, State of A.P. v. Punati Rumulu ( AIR 1993 SC 2644 ) the Apex Court has observed -"Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues." 27. In, State of Bombay v. Rusy Mistry ( AIR 1960 SC 391 ) the Apex Court has held :-"Where a document is not a first information report, not being the first complaint by the informant made to the police, it is hit by Ss. 161 and 162, and the judge should not have relied upon it except to the extent permitted by the proviso to S. 162, i.e. to contradict the informant with reference to any particular statement therein." 28. It further transpires that copy of the FIR was not sent to the Magistrate forthwith as provided under section 157 of the Code of Criminal Procedure. It was received in the Court of the Magistrate on 19.6.1987 as is evident from acknowledgement receipt Ex. D.4 and D.4A and the evidence of constable Rakesh Singh (DW 2). The extra ordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this connection reference may also be made in the case of Ishwar Singh v. State of U.P. ( AIR 1976 SC 2423 ). 29. In view of the discussion aforesaid, it is not safe to upheld the conviction and sentence of the appellants. Accordingly they are set aside and in the result the appeal succeeds and is allowed. The appellants are directed to be set at liberty forthwith if not wanted in any other case.