Judgment 1. This appeal has been preferred by the convicted persons of Sessions Case No. 126/78 on the Ist Additional Sessions Judge, Bhagalpur. The appellants have been convicted under Sec. 302/149 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life. They have been further convicted under Sec. 148, I.P.C. and sentenced to imprisonment for one year. 2. Appellant No. 1 Kailash Mandal who was a Railway employee, died during the pendency of the appeal. So his appeal stood abated. However, an application has been filed on behalf of his son, namely, Devendra Kumar Singh seeking leave to prosecute the appeal. The appellants were tried for the charge that on 15-2-78 they formed an unlawful assembly with common object to commit the murder of Jagdeo Mandal. The incident which was the subject-matter of the charge happened in village Kanjhia, P.S. Nathnagar in the district of Bhagalpur. 3. The case of the prosecution has been narrated by the trial Judge in paragraph 2 of the judgment as extracted below : "On 15-2-78 at about 10 a.m. the informant Mahendra Mandal (P.W.2) was coming to Nathnagar along with his deceased father and when they had reached near the house of Dasrath Mandal of his village they were surrounded by the accused Kishun Mandal, Kailash Mandal, Girdhari Mandal and Siyaram Mandal, all holding Chhura in their hands and the two deceased accused Bhagwan Mandal and Sarjug Mandal holding countrymade pistol. The deceased accused Bhagwan Mandal ordered for killing the informant and his father both whereupon all the accused persons pounced upon the informant and his deceased father. The informant anyhow managed to run away making Hulla of "Bachao Bachao". The accused persons attacked the deceased. The accused Kishun Mandal assaulted the deceased on ribs by means of Chhura and when he fell down the accused Kailash and Girdhari assaulted him by Chhura on abdomen. On hulla raised by the informant the witnesses Ramprasad Kuswaha, Brahmdeo Prasad Singh, Sree Mandal, Suryanarain Mandal and others arrived whereupon the accused persons fled away towards North. The deceased then was being brought to Police Station on a cot but he died on the way. On hulla raised by the informant the witnesses Ramprasad Kuswaha, Brahmdeo Prasad Singh, Sree Mandal, Suryanarain Mandal and others arrived whereupon the accused persons fled away towards North. The deceased then was being brought to Police Station on a cot but he died on the way. According to the prosecution there was long standing land dispute between the parties and six months prior to the occurrence the brother of the informant was killed by these accused persons for which a case was going on and the motive for the murder was the land dispute and the previous litigations." 4. During the trial four defence witnesses were examined to prove their innocence. 5. According to the appellants, on 2-1-1976 they had filed a criminal case against the deceased and the informant which was pending for trial. In March, 1977 Dashrath Mandal, the son of the deceased had also filed a case against the accused persons. Deceased Jagdeo Mandal filed a case in 1976 against the accused persons which was pending. 6. The hostile evidence during the trial may be summarised as follows :The deceased Jagdeo Mandal and his son Mahendra Mandal left for going to Nathnagar from village Kanjhia. They crossed narrow Kadhcha Rasta to reach metal road going towards Champa Nagar Fari. The house of Dashrath Mandal is at a distance of 60 to 65 yards from the house of deceased and the informant. P.W.3 Brahamdeo Prasad Singh (P.W.3) is a farmer. His house is towards West of the house of Dashrath Mandal. At about 10.30 he was going to his field. When he reached near the house of Dashrath Kailash Mandal, Bhagwan Mandal, Kishun Mandal, Girdhari Mandal, Siyaram Mandal and Sarjug Mandal came there armed with lethalweapons and fire arms and attacked the deceased and his son. Sarjug and Bhagwan were armed with pistol and asked his companion to kill both Jagdeo and Mahendra. Mehendra Mandal managed to run away towards South. He concealed himself in brinjal field but his father was surrounded. A kinfe blow was given by Kishun Mandal on his chest. Jagdeo Mandal fell on the ground. After he fell down appellants Kailash Mandal and Girdhari Mandal gave knife blows in his abdomen. Mahendra Mandal escaped. Several persons reached there after the actual assault and after the assailants fled away, Mahendra came from the field knowing that his father had sustained injuries by gun shot. Jagdeo Mandal fell on the ground. After he fell down appellants Kailash Mandal and Girdhari Mandal gave knife blows in his abdomen. Mahendra Mandal escaped. Several persons reached there after the actual assault and after the assailants fled away, Mahendra came from the field knowing that his father had sustained injuries by gun shot. Jagdeo was brought to Sadar hospital, Bhagalpur but on the way he succumbed to his injuries. Mahendra Mandal proceeded to the Police Station for lodging the information.6-A. P.W.4 Shri Prasad Singh lives on the extreme South of Faresh Mandal. He saw Mahendra Mandal raising hulla. He gave a vivid details of the occurrence. 7. The learned Sessions Judge placed implicit reliance on the evidence of P.W.2 Mahendra Mandal, P.W.3 Brahamdeo Singh and P.W.4 Sri Prasad Singh and accepted their evidence on its face value. The Investigating Officer did not come to give his evidence in the Court. 8. The post-mortem on the deadbody of the deceased was performed on 16-2-98 at Bhagalpur Medical College by Dr. S. K. Roy Choudhary (P.W.5), and following injuries were found :(i) Puncutred wound, penetrating into the left chest cavity 11/4" x 1/4" x chest cavity deepin front, chest, half inch from the sternal margin, on the 2nd and 3rd intercostal space outting the third rib.(ii) Incised wound 1/2" x 1/8" x 1/8" on right side chest 2" from sternal margin in second intercostal space.(iii) Incised wound 1/4" x 1" x 1/8" on right side chest 1/2" above right nipple over fourth rib.(iv) Punctured wound penetrating into abdomen in epigastrum 3/4" x 1/4" x abdominal cavity, cavity deep.(v) Penetrating wound 11/4" x 1/4" x abdominal cavity on right side abdomen 11/4" from memblious.(vi) Incised wound 1/4" x 1/4" x 1/4" in mid elavicular line on right costal margin.(vii) Incised 1/4" x 1/4" x 1/4" in mid elevicular line 1/2" below injury No. 6 on right side abdomen.(viii) Penetrating wound on back 1" x 1/4" x abdominal cavity deep on right of vertibral column at the level of third lumber vertebral.On dissection following internal injuries were found :(i) Injury No. 1 was found to have punctured, left lung, pericardium and heard; blood 11/4 litre was present in a left chest cavity. Left lung was collapsed.(ii) Injury Nos. Left lung was collapsed.(ii) Injury Nos. 4, 5 and 8 punctured lopps intestine and soft tissues and muscle of abdominal wall.Some blood, i.e. about 40% was present in abdominal cavity.(iii) Organs including lungs, liver, spleen and kidneys were pale.(iv) Heart both sides was empty.(v) Stomach contained watery fluid about half litre.(vi) Colon had manly gas with some faeces.(vii) Bladder was half full.(viii) Rest nothing abnormal detected.The injuries mentioned above were ante-mortem caused by sharp and pointed weapon such as dagger. Cause of death in the opinion of the doctor was haemorrhage and shock. Time since death within 18 to 36 hours. The injuries were sufficient, in ordinary course of nature to cause death. It is noticed, according to the occular evidence of the eye-witness, only three injuries were inflicted by sharp cutting weapon on the deceased, but according to the post-mortem report eight injuries were found. 9. The most curious aspect of the case is that although according to the records, the F.I.R. was recorded at 1.30 p.m. on 15-2-78 i.e. the date of the occurrence. The First Information Report, according to the records of the C.J.M., was received on 22-2-78 i.e. after seven days. There is no date of despatch from the Police Station. The column in the F.I.R. showing the date from the Police Station is blank. There is no endorsement of the C.J.M. that the F.I.R. was received in his Court earlier than 22-2-78. There is no explanation from the side of the prosecution as to why there is delay in the despatch of the F.I.R. 10. In the case of Sarwan Singh V/s. State of Punjab, reported in AIR 1976 SC 2304 : (1976 Cri LJ 1757), the Supreme Court observed thatdelay in despatch of the First Information Report is not a circumstance which can throw out the prosecution case its entirety provided the prosecution had given a very cogent and reasonable explanation for delay in despatch of the F.I.R. 11. In the case of Ishwar Singh V/s. State of U.P., reported in AIR 1976 2423 : (1976 Cri LJ 1883), the Supreme Court held that unexplained delay of two days in sending F.I.R. is fatal. In the case of Ishwar Singh V/s. State of U.P., reported in AIR 1976 2423 : (1976 Cri LJ 1883), the Supreme Court held that unexplained delay of two days in sending F.I.R. is fatal. It was observed : "The extraordinary delay in sending the F.I.R. 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 case the suspicion hardens into a definite possibility when the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. In such a case the evidence of the eye-witnesses "cannot be accepted at the face value"." 12. In the case of State of U.P. V/s. Gokarn reported in AIR 1985 SC 131 : (1985 Cri LJ 511), it was observed by the Apex Court that it is not that every delay in sending a detailed special report would necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. This view was taken in the facts of that case. 13. Mr. Lala Kailash Bihari Prasad, learned A.P.P. relied upon a recent view of the Supreme Court in the case of Madru Singh V/s. State of M.P., reported in AIR 1997 SC 3527 : (1997 Cri LJ 4398). The F.I.R. was received after two days. The Supreme Court did not take a serious view because of the fact that the prosecutrix herself ceased to go to the Police Station along with the dead body on the same day. The Supreme Court held that no conclusion can be drawn that the F.I.R. was not lodged on the same day after the incident that was ante-dated. It is worthwhile to mention here that in that case the conviction was not founded on the evidence of interest witnesses as in the instant case. There is an extraordinary case where F.I.R. was received after seven days and there is no explanation. 14. The accused persons came out with interesting defence that no occurrence at the time alleged by the witness had occurred at all. There is an extraordinary case where F.I.R. was received after seven days and there is no explanation. 14. The accused persons came out with interesting defence that no occurrence at the time alleged by the witness had occurred at all. In fact, the deceased had received injury by bullock and this opportunity was utilised by the prosecution party. The evidence is not corroborated by medical evidence. The assault had taken place in a lane of the village where there are several houses. The defence case is that the assault took place adjacent to the house of Lukhiya, Ganauri, Nandkishore and Sri Mandal. They have not been examined because they are interested and not worthy of reliance. There is no explanation as to why they did not come after the occurrence. According to the defence the informant and his three brothers were working in a loom at Champanagar. This fact has been denied by the informant. The informant has denied that after visiting the place of occurrence the Investigating Officer had visited the Bathan of the deceased. He is also unable to say as to who gave statement at the time when he visited their village. 15. Several witnesses were examined in support of the defence story. D.W.1 is Bindeshwari Mandal. He stated that when he visited the house of Jagdeo he saw that the body of Jagdeo was being massaged. The wife of Jagdeo was there and she disclosed that her son was at Champanagar. This witness stated that the informant is employed in a Loom at Shampanagar. This witness said that he had stated these facts to the Investigating Officer. D.W.2 Naresh Thakur told that he had gone to the house of Jagdeo. He had seen him lying on the ground and his body was being massaged. His son, the informant had gone to Champanagar. Another witness P.W.4 has stated that he had visited the house of the informant at 8 a.m. He found Jagdeo in unconscious condition. His body was being massaged. It was disclosed that he was injured by bullock. 16. We cannot give much importance to the defence evidence. Salient infirmities in the evidence cannot be brushed aside. The conviction of the appellants found proved normally on the evidence of interested witness. The entire cross-examination of the informant shows that numerous criminal cases have been fought between the parties. 17. It was disclosed that he was injured by bullock. 16. We cannot give much importance to the defence evidence. Salient infirmities in the evidence cannot be brushed aside. The conviction of the appellants found proved normally on the evidence of interested witness. The entire cross-examination of the informant shows that numerous criminal cases have been fought between the parties. 17. In the case of State of Karnataka V/s. Bheemappa, reported in 1993 Cri LJ 2609 : (1993 AIR SCW 2081), the following comments were made by the Supreme Court in respect of the interested witnesses who were examined. (Para 17) "We find that P.W.3, P.W.6, P.W.9, P.W.10 and P.W.11 are interested witnesses and belong to the party of the deceased. This has put us on our guard to carefully scrutinise their evidence. In our opinion, in the state of evidence which is on the record, it would not be safe to rely upon the evidence of these witnesses without finding independent corroboration for their testimony." 18. In latest decision in the case of Harpal Singh V/s. Devinder Singh, reported in (1998) 1 Pat LJR 11 : (1997 Cri LJ 3561), the Supreme Court has observed (at Pp. 3564-65 of Cri LJ) : "There can be little doubt that P.W.6 Sumer Singh had witnessed the occurrence. but the drawback of his evidence is that he belonged to the students wing which was admittedly rival to the accused students. Though that by itself is not enough to tarnish his testimony. It is a sound rule in appreciation of evidence that if the testimony of such a witness is to be used as the sole basis of conviction it should be of such a calibre as to be regarded as wholly reliable." 19. It is apparent from the First Information Report made by the informant as well as in his cross-examination which runs in several pages that there was animosity between the informant and the accused persons. Two witnesses were supporting the informant. Some of them are also accused in several cases. So the evidence of the informant and two eye-witnesses cannot be accepted in this case unless the same is not corroborated by medical evidence. The evidence of the witnesses are not consistent with the manner of occurrence. 20. Two witnesses were supporting the informant. Some of them are also accused in several cases. So the evidence of the informant and two eye-witnesses cannot be accepted in this case unless the same is not corroborated by medical evidence. The evidence of the witnesses are not consistent with the manner of occurrence. 20. On a careful consideration of the entire materials and evidence, we extremely hesitate to uphold the findings of the trial Court which has not taken trouble to examine the evidence in detail. 21. In view of the discussions made above, we hold that the prosecution has not proved its case beyond reasonable doubt. The occurrence might have taken place in a different manner than it has been deposed in the cross-examination. 22. In the result, the appeal is allowed. The conviction of the appellants namely, Siyaram Mandal, Kishun Mandal and Girdhari Mandal is set aside and they are acquitted of the charges. The appellants are on bail. They are discharged from the liability of their bail bonds. The appeal of appellant Kailash Mandal has abated. 23. Mr. Ramakant Sharma, learned Counsel appearing on behalf of the son of the deceased appellant Kailash Mandal has filed a petition that he be substituted on the ground that the pension of his father has been withheld. Since we set aside the conviction of the other appellants and the appeal of other appellants has not abated, there should not be any difficulty in granting retirement benefits to the son of the deceased appellant Kailash Mandal.Appeal allowed.