JUDGMENT 1. :- This D.B. Cr. Appeal has been filed against the judgment/order dated 24.10.98 passed by the Additional Sessions judge, Neem Ka Thana (District Sikar) in Sessions Case No. 17/97 whereby the accused appellant Chhitar has been convicted under Section 302 Indian Penal Code and sentenced to life imprisonment with a fine of Rs. 1,000/-, in default six months simple imprisonment. 2. In short, the facts of the prosecution case are that Shri Girdhari Lal PW 13 submitted a written report to S.H.O., P.S. Thoi, District Sikar, to the effect that in the intervening night of 13/14th March, 1997 his father Ram Kumar went to his field for irrigation. Accused Chittar due to enmity had fixed naked live electricity wire near 'Bar' (fencing) with a intention to kill Ram Kumar. When in. the night Ram Kumar came in contact with electric wire he died due to electrocution. At about 3.15 A.M. complainant's younger brother Murlidhar went to give tea to his father he also died due to electrocution. After some time uncle of complainant Sua Lal noticed that dead body of Ram Kumar and Murlidhar lying in the field, he raised alarm. Complainant and other neighbours reached there. At that time Chhittar appellant removed the wire from the electricity pole and tried to remove the wire from the place of occurrence but he was prevented to do so by the persons assembled there. On the basis of this report a case under Section 302 Indian Penal Code was registered against the accused (FIR 29/97 Ex.P43). The Investigating Officer immediately proceeded to the place of occurrence, prepared panchayat-nama, site plan, and wire was seized. Post mortem was conducted by the Medical Officer. According to the post-mortem report the cause of death of Ram Kumar and Murlidhar was due to electrocution (electric current). The accused was arrested on the same day. After completing investigation a charge sheet was filed in the Court of Judicial Magistrate, Neem Ka Thana, for the offence under Section 302 IPC. Learned Magistrate committed the case for trial to the court of Sessions. The case was tried by the learned Additional Sessions Judge, Neem Ka Thana. 3. The learned Additional Sessions Judge after hearing the arguments framed the charge for the offence under Section 302 Indian Penal Code against the accused. He denied the charge and claimed to be tried. 4. Learned Magistrate committed the case for trial to the court of Sessions. The case was tried by the learned Additional Sessions Judge, Neem Ka Thana. 3. The learned Additional Sessions Judge after hearing the arguments framed the charge for the offence under Section 302 Indian Penal Code against the accused. He denied the charge and claimed to be tried. 4. In this case the prosecution examined 15 witnesses and referred documents marked as Ex. P1 to Ex.P46. Statement of accused under section 313 Cr.P.C. was recorded. He has stated that he has been falsely implicated in this case. He was not cultivating the field. Prosecution witnesses relating to the incident are closely related to the complainant. He has also examined DW1 Phool Chand in his defence. 5. On the basis of evidence produced before the learned Additional Sessions Judge, he held that due to enmity with the intention to kill Ram Kumar and his son Murlidhar, accused Chhittar fixed naked live wire of electricity on Dhora (drain for supplying water in the field) in between the fields of Ram Kumar and Chhittar with the result that in the night when Ram Kumar went to his field he died due to electricity current. When Murlidhar went there to give tea to his father he also came in contact with the electric wire and died on the spot. On this finding he convicted the accused appellant under Section 302 Indian Penal Code and sentenced as mentioned above. 6. We have heard the learned counsel for the appellant and public prosecutor and perused the judgment of the learned trial Court. The cause and time of death of Ram Kumar and Murlidhar has not been disputed before us and in our opinion rightly so, because Dr. O.P. Jharwal (PW3) who performed post-mortem has stated that cause of death was primarily shock caused by electrocution (electric current). He has proved Ex. P6 and P7 post mortem reports of both the deceased persons. 7. Learned counsel Shri Dhankar appearing on behalf of the accused appellant has submitted that the trial court has not appreciated evidence in true perspective. O.P. Jharwal (PW3) who performed post-mortem has stated that cause of death was primarily shock caused by electrocution (electric current). He has proved Ex. P6 and P7 post mortem reports of both the deceased persons. 7. Learned counsel Shri Dhankar appearing on behalf of the accused appellant has submitted that the trial court has not appreciated evidence in true perspective. It has been argued by him that FIR Ex.P43 was lodged by Girdhari on 14.3.97 at 4.30 A.M. It was dispatched to concerning court on 14.3.97 at 9.00 A.M. through Constable Mala Ram but it was received in the court on 15.3.97 at 3.00 P.M. It has been admitted by the Investigating Officer PW15 Bhoma Ram that the distance of court from police station is about 28 kilometers only. If FIR was dispatched on 14.3.97 it should have reached the court on the same day. Shri Bhoma Ram could not give any satisfactory explanation about the delay. Mala Ram has not been examined, therefore, it can safely be inferred that actually this FIR was not lodged on given time. It was prepared afterwards just to involve the accused appellant in this case due to enmity. This fact itself is sufficient to dismiss the prosecution case and accused deserves acquittal. 8. We have examined this aspect of the prosecution case. F.I.R. Ex.P43 was lodged by Girdhari at 4.30 A.M. on 14.3.97. After registration of case Investigating Officer immediately proceeded to place of occurrence and commenced investigation. He prepared Panchayat Nama Ex.P3 and Ex.P4 and site plan Ex.P2. Wire was seized from the place of incident vide seizure memo Ex.P5. Accused was arrested on the same day i.e. on 14.3.97 itself. Ex.P1 is the arrest memo which is in admitted document, therefore, when accused named in FIR and arrested on the same day i.e. on 14.3.97 itself, there could not have been any manipulation in the FIR. It is true that Section 157 of Code of Criminal Procedure requires that "If from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance upon a police report". The object of it is to keep the Magistrate informed of the investigation of cognizable offences so as to control investigation. Where the FIR was recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity, the delay in receipt of report by the Magistrate does not make investigation tainted. In the absence of any evidence showing that FIR is a latter creation no adverse inference can be drawn. In the instant case we are satisfied that FIR was lodged immediately after the incident and the Investigation Officer started investigation after arriving at the place of occurrence and the accused was arrested on the same day though the FIR was received by the court on the next day but there is nothing on the record to show that this FIR is a latter creation. We reject the argument advanced by Shri Dhankar in this respect. 9. Learned counsel has submitted that the prosecution case rests upon circumstantial evidence because there is no direct evidence to prove the fact that accused Chhittar had laid electric wire in the field. The prosecution has failed to collect evidence to the effect that wire was purchased by the accused. Wire seized, was not examined by the expert to prove its capacity to flow the current. The prosecution has failed to prove that field in which wire was fixed is in the khatedari of Chhittar and he is in cultivatory possession. No revenue record has been produced before the trial Court. The trial Court has relied upon the extra judicial confession, but it is afterthought, just to frame the accused due to enmity. Actually accused Chhittar at the relevant time was living and working as "Palledar" in Delhi. On 13/14th March he was not in his village as stated by the accused as well as DW 1 Phool Chand. All the prosecution witnesses relating to the incident examined by prosecution are related to deceased Ram Kumar, therefore, they are interested witnesses and no reliance should be placed upon their testimony. The prosecution has failed to establish by any' impeachable evidence any circumstance against accused to link him with the alleged crime. 10. It is not disputed that the prosecution case rests upon circumstantial evidence because there is no eye witness to the effect that wire was fixed by Chittar. The law regarding circumstantial evidence is well settled. The prosecution has failed to establish by any' impeachable evidence any circumstance against accused to link him with the alleged crime. 10. It is not disputed that the prosecution case rests upon circumstantial evidence because there is no eye witness to the effect that wire was fixed by Chittar. The law regarding circumstantial evidence is well settled. It has been held by the Supreme Court in the case Gambhir Vs. State of Maharashtra AIR 1982 Supreme Court 1157 that when a case rests upon the circumstantial evidence such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 11. The circumstantial evidence in the instant case against the accused as put forward by the prosecution is; (1) enmity with the deceased; (2) presence of accused when Sua Lal raised alarm after seeing the dead body of Ram Kumar and Murlidhar; (3) Accused removed the electric wire form the electric pole in presence of Sua Lal; (4) accused tried to remove the wire from the place of occurrence but he was prevented to do so by the neighbours who assembled by that time and (5) extra judicial confession. 12. On the basis of prosecution evidence it has been proved that deceased Ram Kumar, PW12 Sua Lal and appellant Chhitar are closely related. In site plan Ex. P2 field of Chhitar has been shown in south of the field of Ram Kumar and Sua Lal. It is true that revenue record showing Chhitar as khatedar has not been produced, but, in our view, it is not important in the present case because it has been proved by the prosecution witnesses PW1 Prabhu Dayal, PW2 Kishan Lal, PW12 Sua Lal and PW13 Girdhari that field in the south of Ram Kumar's field belongs to Chhitar and he was cultivating it at the time of occurrence. The trial Court after careful scrutiny had held that the statement of these witnesses are reliable and presence of accused is proved beyond doubt at the place of occurrence. The trial Court after careful scrutiny had held that the statement of these witnesses are reliable and presence of accused is proved beyond doubt at the place of occurrence. After going through the statements of these witnesses we are convinced that Chhitar was present at the place of occurrence. When dead bodies of Ram Kumar and Murlidhar were noticed by Sua Lal and on raising alarm by him, accused removed the wire from the electric pole, though accused in his statement has stated that neither he was cultivating the field nor he was present at the place of occurrence on the intervening night of 13th and 14th March, 1997, in support of it he examined DW1 Phool Chand. but, in our view, the plea of defence is false because F.I.R. was lodged immediately after the incident had taken place. Accused has been named in it. He was arrested on 14.3.1997 itself as stated earlier. The arrest memo is an admitted document. Therefore, it cannot be accepted that accused was not present in the village on the intervening night of 13 and 14th March, 1997 and was somewhere else. 13. We find no merits in the submission made by the learned counsel that prosecution has failed to prove that wire seized belongs to accused Chhittar because the ownership of wire has nothing to do with the alleged incident. Similarly, we find no merits in the submission that seized wire was not examined by the Expert to prove that it was capable of flowing electric current, simply on the ground that cause of death of Ram Kumar and Murlidhar is due to electrocution. 14. The trial Court has placed reliance on extra judicial confession of accused made by him before PW2 Kishan Lal, PW9 Manohar Lal, PW12 Sua Lal and PW13 Girdhari. An extra judicial confession if voluntary can be relied upon by the court along with other evidence in convicting the accused. Usually and as a matter of caution the court requires some material corroboration to extra-judicial confessional statement because the extra judicial confession is a very weak type of evidence. The prosecution is required to prove the confession like any other fact. The value of the evidence as to the confession just like any other evidence depends upon the veracity of the witness to whom it is made. The prosecution is required to prove the confession like any other fact. The value of the evidence as to the confession just like any other evidence depends upon the veracity of the witness to whom it is made. In the present case FIR was lodged by PW13 Girdhari, but there is nothing about extra judicial confession of accused. Similarly in the statement under section 161 Cr.P.C. of Girdhari, Sua Lal recorded on 14.3.97 (Exs. D3 and D2) the fact of extra judicial confession is missing. First of all, it was stated by Manohar Lal and Kishan Lal when their statenents were recorded on 16.3.97. Therefore, possibility of being afterthought cannot be ruled out and thus no reliance can be placed upon the statements of witnesses about the extra judicial confession. 15. In the last learned counsel has submitted that, even if it is taken to be proved that electric wire was laid by appellant Chhitar, the case does not fall under Section 302 IPC. But, at the most it may be a case under Section 304-A IPC. The prosecution evidence reveals that the wire was fixed on Dhora in between the fields of deceased and appellant. The learned counsel submits that the purpose for fixing the wire was to pretect the crop from wild animals, there could not have been any intention to kill Ram Kumar and his son. At the most it can be said to be a negligent act of the appellant. He has placed reliance on the cases; AIR 1964 Supreme Court 205 "Cherubin Gregory Vs. State of Bihar and 1984 Criminal Law journal 1038 Benoy Chandra V. State. 16. The facts of the case Cherubin Gregory are that wall of the latrine of the house of accused had fallen down about a week prior to the day of occurrence with the result that the latrine had become exposed to public view. Consequently, the deceased among other started using the latrine of the accused. The accused resisted this and made it clear to them that they did not have the permission to use it and protested against their coming there. The oral warnings, however, proved ineffective and it was for this reason the accused wanted to make entry into his latrine dangerous to the intruders. The accused had fixed up electrically charged naked copper wire at the back of his house. The oral warnings, however, proved ineffective and it was for this reason the accused wanted to make entry into his latrine dangerous to the intruders. The accused had fixed up electrically charged naked copper wire at the back of his house. One Smt. Madilen who was an inmate of a house near that of the accused came in contact with naked electric wire and died. It was held by the Supreme Court that the owner who set up the trap is guilty under Section 304-A IPC. 17. After considering the whole evidence we are of the view that there could not have been any intention on the part of the accused to commit murder of Ram Kumar and Murlidhar by fixing the naked wire on Dhora. It is not the case of the prosecution that the wire was fixed in the field of deceased Ram Kumar. Applying the principle laid down by the Supreme Court this appeal is partly allowed. 18. For the foregoing discussions we set aside the conviction and sentence recorded against the appellant under Section 302 Indian Penal Code and convict the appellant under Section 304-A Indian Penal Code and sentence him to suffer rigorous imprisonment for a period of two years and a fine of Rs. 5,000/- (five thousand), in default, to further undergo sentence of six months' simple imprisonment.Appeal Partly Allowed. *******