JUDGMENT (ORAL) R.K. Batta, J. - The Appellant was tried for murder of Sandeep Pandurang Kerkar alias Baban under Section 304 I.P.C. 2. The prosecution case, in brief, is that when Rajesh P.W. 3 and the deceased Baban alias Sandeep Kerkar after coming from the bar had gone to a distance of about 50 feet, some persons came from the opposite direction and the appellant hit a stone on Baban alias Sandeep Kerkar. P.W. 3 Rajesh tried to intervene, but two of the said persons came to assault him and he ran away being afraid. Subsequently, he met Krishna P.W. 4 and informed him of the assault by the appellant on Baban alias Sandeep Kekar and both of them went to Hotel Kavita and asked the appellant as to why he had assaulted Baban alias Sandeep Kerkar. On this, the appellant pulled out a razor and waved at them, as a result of which they were frightened and went away. The deceased was removed initially to Mandovi Clinic and, subsequently, to the Goa Medical College on 30th June 1996. In all, 12 injuries were found on his person and he expired on 1-7-1996. The First Information Report was lodged by P.W. 3 Rajesh Narala on 2-7-1996. The, only evidence, appearing on record against the appellant, is that of Rajesh P.W. 3 and Krishana P.W. 4. The stone in question which is alleged to have been used in the crime was not attached at the instance of the appellant and no blood stains were found on the said stone by the Chemical Analyser. Therefore, the recovery of the stone does not have much significance. The trial Judge accepted the evidence of P.W. 3 and P.W. 4 and convicted the appellant under Section 304 I.P.C. and sentenced him to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 1000/ and, in default, to undergo Simple Imprisonment for 6 months. This conviction and sentence is challenged by the appellant in this appeal. Learned Advocate Shri S.G. Bhobe was appointed under the Legal Aid Scheme to argue the appeal on behalf of the appellant who is in Jail undergoing the sentence imposed on him. 3. 1000/ and, in default, to undergo Simple Imprisonment for 6 months. This conviction and sentence is challenged by the appellant in this appeal. Learned Advocate Shri S.G. Bhobe was appointed under the Legal Aid Scheme to argue the appeal on behalf of the appellant who is in Jail undergoing the sentence imposed on him. 3. Learned Advocate Shri S.G. Bhobe made the following submissions: (1) Delay in the F.I.R. is fatal in the circumstances of the case and, at any rate, it throws considerable doubt on the evidence of the only eye witness P.W. 3 who had lodged the said F.I.R.; (2) The evidence of P.W. 3 is unnatural, untrustworthy and cannot be relied upon; (3) The death, according to medical opinion, could be due to fall and (4) Attachment of the stone is not at the instance of the appellant nor any blood stains were found on it by the Chemical Analyser and, as such, it has no value. I shall deal with the arguments, one by one and, simultaneously, record the submissions made by the Public Prosecutor Shri Bharne on the said submission. 4. Learned Advocate for the appellant has urged before me that the Police Station is at a distance of about 300 metres from the place of incident; that P.W. 3 Rajesh states that he remained in the hospital at "Mandovi Clinic during the whole night and during the said period he had told the brother and mother of deceased Sandeep that a fight had taken place at the market; the normal human conduct in such circumstances would be that Rajesh PW 3 would inform them the name of the assailant and in case he did not inform them about it the mother and brother of deceased Sandeep would certainly make enquiries as to who had assaulted San deep and that, in these circumstances, F.I.R. which was lodged by Rajesh P.W. 3 on 2-7-1996 suffers from laches. In this respect, learned Public Prosecutor Shri Bharne has urged before me that' the delay in the F.I.R. has been explained by Rajesh P.W. 3 since initially the F.I.R. could not be lodged as Rajesh was frightened and, subsequently, had to remain in the Mandovi Clinic whole night after which he received information that his brother's son had expired due to which he could not lodge the F.I.R. till 2-7-1996 and upon being informed that the deceased had died, he promptly lodged the complaint. It was pointed out by the learned advocate for the appellant that the appellant if; an old man of 60 years and, as such, the stand taken by P.W. 3 that he was frightened cannot be accepted. The argument cannot be rejected as being without merit because on the second occasion, it is the prosecution case that P.W. 3 Rajesh and P.W. 4 Krishna had approached the appellant and made enquiries with him as to why he had assaulted the deceased upon which he had taken out a razor. It appears that the prosecution had given up its theory that along with the appellant there were other persons as had been stated by P. W. 3 Rajesh. There is no explanation coming forth from the Investigating Officer as to what investigation was done in respect of other persons who were said to be along with the appellant. It is pertinent to note that the charge - sheet was filed against the appellant alone for having committed culpable homicide not amounting to murder by throwing stone on his head. Therefore, it appears that the Investigating Officers had abandoned the theory that there were other persons along with the appellant and if that is so, their is no reason for Rajesh P.W. 3 and Krishna P.W. 4, who are both in the prime -of their youth, to get frightened of a person aged more than 60 years. 5. Admittedly, the Police Station is at a distance of 300 metres from the place of incident and 700 metres from Mandovi Clinic where the appellant was taken and kept during the night. 5. Admittedly, the Police Station is at a distance of 300 metres from the place of incident and 700 metres from Mandovi Clinic where the appellant was taken and kept during the night. As already pointed out, according to prosecution case, P.W. 3 had informed the brother and mother of the deceased about the assault and it does not sound to reason that they will not make enquiries with him about the name of the assailant or the persons who had assaulted the deceased. It also does not sound to reason that they would not go to the Police Station to lodge complaint regarding .the assault. May be it can be accepted that at night time and due to the serious condition of the deceased, they did not approach the Police to lodge F.I.R., yet there is no reason as to why the brother and mother of the deceased should not lodge F.I.R. regarding assault on the deceased with the Police Station on 30th June 1996 and 1st July 1996. The delay in lodging the F.I.R. in the circumstances may not be fatal, but it does throw considerable doubt on the prosecution case. On the person of the deceased as many as 12 injuries were found, but the prosecution has attributed to the appellant only one injury on the head of the deceased, namely, injury No. 12. This injury, according to Doctor, was fatal and could be caused by stone M.O. 1. During cross-examination, he further stated that injury No. 12 could be caused- by forcible blow of sticks as well as if a person bangs on a rock as well as fall on the ground. I have already pointed out that no blood was detected on the stone by the Chemical Analyser. The Medical opinion does not rule out injury No. 12 being caused by sticks or bang on a rock or due to fall. Medical record shows history of assault by sticks. There is no explanation whatsoever as to who had caused the other 11 injuries. Non-explanation of the injuries on the person of the deceased throws further doubt on the veracity of the prosecution case. Medical record shows history of assault by sticks. There is no explanation whatsoever as to who had caused the other 11 injuries. Non-explanation of the injuries on the person of the deceased throws further doubt on the veracity of the prosecution case. It also shows that the genesis of the crime has been suppressed and the persons who are responsible of causing the other 11 injuries have not been brought to book by the Investigating Officer, who has not offered any explanation in this regard. Not much value can be attached to the recovery of the stone since it was not effected at the instance of the appellant and no blood stains were found on the same by the Chemical Analyser. It may also be pointed out that Rajesh P.W. 3 had stated that he would not be able to identify the stone. 6. The question therefore that arises is whether conviction for a serious for a charge of culpable homicide not amounting to murder could be based solely on the testimony of Rajesh P.W. 3. According to Rajesh P.W. 3 he had seen 6 persons coming from the road side and from amongst the 6 persons he had recognised the appellant. He has further stated that he could see the appellant since there was light coming from a bulb in the market yard. Therefore, the identification of the appellant basically rests upon the light coming from the bulb in the market yard. P.W. 3 was questioned as to whether he had stated to the Police that he could see the appellant on account of the light coming from a bulb in the market yard. He answered in the affirmative that he had stated this fact to the Police, but he was confronted with his police statement and it was found that the said fact was not recorded in his police statement. The introduction of the bulb is therefore a very material improvement, which was made by Rajesh P.W. 3 in order to fix the identification of the appellant since but for the light coming from the said bulb he could not have probably identified the appellant. 7. The introduction of the bulb is therefore a very material improvement, which was made by Rajesh P.W. 3 in order to fix the identification of the appellant since but for the light coming from the said bulb he could not have probably identified the appellant. 7. Learned Public Prosecutor Shri Bharne urged before me that P.W. 3 Rajesh is a truthful witness and he had even informed P.W. 4 Krishna that Baban was assaulted by the appellant and this fact is corroborated by Krishna P.W. 4 in the course of his deposition. Krishna P.W. 4 states that Rajesh told him that the accused had assaulted Baban as well as him meaning thereby that Rajesh was also assaulted. There is no evidence of assault on Rajesh and learned Public Prosecutor Shri Bharne urged before me that the word "assault" which was used by Krishna P.W. 4 means assault in the legal sense, namely that the appellant had come towards him and had shown him razor. It is too much to accept the ingenuinity of the Public Prosecutor since it does not sound to reason that a layman like kerkar wouid use the expression "assault" in legal sense. Thus, part of the statement of Krishna P.W. 4 that Rajesh told him that Baban had assaulted him (Rajesh) does not get any support from any material on record. Moreover, whereas Rajesh P.W. 3 states that he and Kerkar went to Kavita Hotel, but he had gone inside raising the shutter and questioned him; on the other hand, Krishna P.W. 4 states that both of them entered inside" the Hotel and that the accused removed a razor. Though he also says that they were scared, yet he also did not report the matter to the Police even though the Police Station was just 300 metres away. Moreover, if Rajesh P.W. 3 and Krishna P.W. 4 were scared, there is obviously more reason for them to go to the Police Station to report the incident so that the fear from which they were suffering could be appropriately dealt with by the Police. 8. Moreover, if Rajesh P.W. 3 and Krishna P.W. 4 were scared, there is obviously more reason for them to go to the Police Station to report the incident so that the fear from which they were suffering could be appropriately dealt with by the Police. 8. The sum total of the evidence on record goes to show that the genesis of the crime has been suppressed; it appears that the Investigating Officer did not bother to investigate into the participation of the other persons alleged legged to have taken part in the crime, who were responsible of causing 11 of the 12 injuries on the person of the deceased; the filing of the charge - sheet only against the appellant in respect of only one injury thereby completely giving a go-by to the participation of others and the injuries caused on the person of the deceased; delay in the filing of the F.I.R., material improvement in respect of existence of the bulb on the strength of which the identity of the appellant could be fixed and other discrepancies, it is not safe to sustain the conviction of the appellant. There is considerable doubt regarding the authenticity of the prosecution version and, at any rate, benefit of doubt should go to the appellant. 9. For the reasons mentioned above, the conviction and sentence of the appellant under -Section 304 I.P.C. in Sessions Case No. 27/96 is hereby set aside. Accordingly, the appellant is ordered to be acquitted of the charge and he shall be set at liberty in case he is not required in any other case. Appeal dismissed.