JUDGMENT - R.K. BATTA, J.:---The appellant was tried for the murder of deceased Jalandar Fulzele, under section 302 of I.P.C. The prosecution had examined 23 witnesses in support of the charge. After assessment of evidence, the trial Court convicted the appellant under section 302 of I.P.C. 2.In order to appreciate the submissions advanced by learned Advocate for the appellant and the learned Additional Public Prosecutor, it is necessary to briefly enumerate the prosecution case. The prosecution case is that on 15-5-1990 at 3.30 p.m. at Pulgaon near Bus Station, the appellant came from the backside of the deceased and inflicted one blow on the backside of the deceased and when the deceased turned around, the appellant inflicted second blow on the chest. The deceased was taken to the Hospital where he expired at 8.30 p.m. on the same date. The medical evidence shows that there were two injuries on the person of the deceased namely : one on front chest region near the heart and other on the backside. The prosecution had examined large number of witnesses, many of whom did not support the prosecution case and declared hostile, but nothing could be elucidated from the said witnesses during the cross-examination by the Public Prosecutor. 3.P.W. 12 Dharampal, Municipal Councillor was examined as eye witness of the incident who has supported the prosecution. In addition to that evidence, the prosecution has relied upon the oral dying declaration said to have been made by deceased before the witness P.W. 11 Haridas as also to the wife of the deceased namely Sulochana P.W. 18. The prosecution had also relied upon the written statement Exhibit 76 said to have been recorded by the deceased himself, but the trial Court has not placed reliance on the same, as can be seen from para 26 of the impugned judgment. The trial Court had relied upon the statement of Dharampal P.W. 12, Haridas P.W. 11, and Sulochana P.W. 18. In addition, the trial Court also relied upon the statement of the Investigating Officer relating to the disclosure and recovery at the instance of the appellant, even though, the panchas in respect of the said discovery and recovery had turned hostile. The trial Court had also likewise accepted the cycle hired theory by the appellant which had also not been supported by the prosecution witnesses examined in that behalf. The trial Court had also likewise accepted the cycle hired theory by the appellant which had also not been supported by the prosecution witnesses examined in that behalf. A brief reference to the prosecution witnesses who had turned hostile is necessary at this stage. 4.P.W. 1 Vijay who was eye witness to the incident had stated that he had not seen the incident. He was declared hostile and permission was granted to the A.P.P. to cross-examine the witness. There has been practically no cross examination by the A.P.P. except for putting to the witnesses what he had stated before the police. This witness in the cross examination admitted that before the Magistrate he had stated that he had not seen the incident. This witness was taken for the purpose of recording the statement under section 164 of Criminal Procedure Code on 21-6-1990. 5.P.W. 2 Purushottam who is also stated to be eye witness, did not support the prosecution case and stated that he had not seen the incident. Even he was also likewise declared hostile and A.P.P. was granted permission to cross examine. Once again practically there was no cross examination by A.P.P except for putting the statement to the witness what he had stated before the police. This witness was also taken for recording his statement under section 164 before the J.M.F.C. on 21-6-1990 and this witness has stated that he had told the Magistrate that he did not know anything about the incident. P.W. 3 Devidas is a Pancha of Seizure of Razor/knife, but he did not support the prosecution case. He stated that the accused was not present in the Police Station and that no razor was produced or seized in his presence. The witness was likewise declared hostile and the learned A.P.P. was permitted to cross examine the witness. Except for suggestions there was practically no cross examination. He reiterated in cross examination that the clothes of the deceased were not seized in his presence. 6.P.W. 4 Baliram is a pancha of seizure of a register from the Cycle Shop of Shaikh Ismail. He stated that the accused was not there in the police station and that accused did not give any statement before him. He did not support the prosecution case. The witness was declared hostile and the A.P.P. was granted permission to cross examine the witness. He stated that the accused was not there in the police station and that accused did not give any statement before him. He did not support the prosecution case. The witness was declared hostile and the A.P.P. was granted permission to cross examine the witness. Except for putting suggestions to the witness, there was no cross-examination by the A.P.P. 7.P.W. 5 Narayan is a pancha relating to seizure of mud and clothes of the accused, as well as nail clippings and blood sample of the accused. He stated that no mud was seized in his presence; nor the clothes of the accused; nor the nail clippings and blood samples of the accused was seized in his presence. Once again even-though, witness was declared hostile and A.P.P. was granted permission to cross examine the witness, and there was no cross-examination at all of this witness except for putting suggestions. 8.P.W. 6 Manoj is a pancha of the scene of offence, but he stated that no panchanama of spot was drawn in his presence. Even he was declared hostile and P.P. was granted permission to cross examine the witness. The only thing which transpired during the cross-examination is that he admitted that simple earth and blood stained earth were seized from the spot. 9.P.W. 7 Anil is a pancha relating to seizure of cycle from the shop of Shaikh Ismail on 25-11-99, but he stated that no cycle was seized from the shop of Shaikh Ismail. Witness was declared hostile and A.P.P. was permitted to cross examine the witness. The witness was not at all cross examined except for putting suggestions. 10.P.W. 8 Vasant is another pancha who did not support the prosecution case. He was declared hostile and A.P.P. was permitted to cross examine the witness. Once again there was no cross-examination by A.P.P. except for putting suggestions to the witness. 11.P.W. 9 Anthony did not support the prosecution case relating to the seizure of the cycle from the shop of Shaikh Ismail. He was also declared hostile and A.P.P. was permitted to cross-examine the witness. Once again there has been no cross examination of the witness by A.P.P. except for putting suggestions to the witness. 12.P.W. 10 Parvatrao is another eye witness of the incident, but he stated that he did not know about the incident. He was declared hostile and A.P.P. was permitted to cross examine the witness. Once again there has been no cross examination of the witness by A.P.P. except for putting suggestions to the witness. 12.P.W. 10 Parvatrao is another eye witness of the incident, but he stated that he did not know about the incident. He was declared hostile and A.P.P. was permitted to cross examine the witness. Once again there has been no cross examination by A.P.P. except for putting the statement of the witness given before the police. All this presents a dismal picture of the A.P.P. conducting the prosecution. Though the permission was granted to cross-examine the witnesses, yet the A.P.P. did not at all cross-examine the witnesses and was content with putting the statements of the witnesses recorded before the police to them and giving suggestions. Therefore, nothing could be elucidated during the cross-examination of the ten witnesses who had been declared hostile and they did not support the prosecution case. 13.P.W. 11 Haridas is a witness relating to the oral dying declaration made by the appellant deceased. He had stated that the deceased came pressing below his chest by one hand and on back by other hand towards them and told that he was stabbed by Keshav Choudhari and he fell down. He saw injuries on the chest and back of the deceased and blood was oozing out from the injuries. 14.P.W. 12 Dharampal, Municipal Councillor, is an eye witness of the incident and we shall deal with his testimony in greater detail at a little later stage, when we shall discuss the case on merits. 15.P.W. 13 Deepak is a Clerk in the Municipality who has identified the signatures of the deceased, on page No. 1 at Serial No. 10 and at page 6 at Serial No. 11 as that of the deceased on the attendance register maintained by the Municipal Council. 16.P.W. 14 Ramsinhg a Head Constable attached to Pulgaon Police Station who has stated that the accused Keshav Choudhari came with the report that deceased Jalandar had rushed upon him with knife and had beaten him. He recorded the said report and sent him for medical examination. That report was recorded as non cognizable. The said report which was a relevant piece of evidence has not been proved. This report was in respect of the incident which took place at 1.20 p.m. on 15-5-1990 in the P.W.D. Office. He recorded the said report and sent him for medical examination. That report was recorded as non cognizable. The said report which was a relevant piece of evidence has not been proved. This report was in respect of the incident which took place at 1.20 p.m. on 15-5-1990 in the P.W.D. Office. This report is relating to threats, abuses and assault by the deceased in the P.W.D. Office at 1.20 p.m. In the afternoon the Head Constable Mahadeorao lodged the F.I.R. relating to the incident which is subject matter of the case under consideration. 17.P.W. 15 Mahadeo is Head Constable who has stated that Head Constable Ramsing directed him to proceed to the dispensary for recording the statement of the deceased; for that he went there at 4.30 p.m. and saw Medical Officer Mrs. Boke. The deceased had already been referred and sent to Wardha General Hospital. He had further stated that it was talked there that Keshav Choudhari stabbed Jalandar the deceased. He returned back and filed F.I.R. Exhibit 65. 18.P.W. 16 Deshdiwakar has stated that the deceased was admitted in Sevagram Medical Hospital, where he was working as Lecturer in Surgery. He has stated that the O.P.D. Ticket shown to him pertains to deceased; but he could not say about the writing and by whom it was written. He further stated that he had not seen victim patient writing the contents, but he had submitted this writing to the Superintendent for further action. He had examined the patient around 6.10 p.m. and that there was history of stabbing around 3.00 p.m. According to him the patient had two cardiac arrest during the operation and the death was due to massive hemorrhage as a result of heart injury due to stabbing. 19.P.W. 17 Sk. Isrile had stated that the accused had came to his shop on 15-5-1990 and had taken a cycle on hire at 2.25 p.m. and the said cycle was returned to him at 4.35 p.m. He produced the register and pointed out the entry in respect of hire of the cycle as Article No. 7. 20.P.W. 18 Sulochana is wife of deceased, who had stated that after she learnt that her husband was taken to Hospital, she went there, where her husband told her that he was stabbed by Keshav Choudhari. 20.P.W. 18 Sulochana is wife of deceased, who had stated that after she learnt that her husband was taken to Hospital, she went there, where her husband told her that he was stabbed by Keshav Choudhari. According to her the statement of her husband was recorded in the hospital; but she was not present at that time. She identified the handwriting and signatures of the deceased of writing at Exhibit 76 of O.P.D. papers. 21.P.W. 19 Gautam is a pancha relating to attachment of Safari Shirt of the deceased. 22.P.W. 20 Suresh also did not support the prosecution case and he was declared hostile. Permission was granted to A.P.P. to cross-examine the witnesses. The witness was hardly cross examined except for putting the statement made by him before the police. This witness was examined on the point of oral dying declaration made by deceased to Shaikh Yunus, which was heard by him. Shaikh Yunus could not be examined as he died during the pendency of the trial. 23.P.W. 21 Gajanan is the Investigating Officer who received the investigation papers on 13-6-90. He recorded the statement of Suresh Pande on 29-6-1990. He also stated that he had recorded the statement of Sulochana on 10-7-1990 and she had not stated therein that her husband told her that he was stabbed by Choudhari. 24.P.W. 22 Baburao is the other Investigating Officer, who received the investigating papers on 20-5-1990. The police officer who investigated case from 15-5-1990 to 19-5-1990 has not been examined. 25.P.W. 23 Purushottam had arrested the accused on 17-5-1990 and had seized clothes from his person and also attached the nail clippings and blood brought from the hospital. 26.Learned Advocate Mr. 24.P.W. 22 Baburao is the other Investigating Officer, who received the investigating papers on 20-5-1990. The police officer who investigated case from 15-5-1990 to 19-5-1990 has not been examined. 25.P.W. 23 Purushottam had arrested the accused on 17-5-1990 and had seized clothes from his person and also attached the nail clippings and blood brought from the hospital. 26.Learned Advocate Mr. M.R. Daga urged before us that the prosecution case rests mainly on the evidence of P.W. 12 Dharampal, P.W. 11 Haridas; P.W. 18 Sulochana; that the other eye witnesses have not supported the prosecution case; that the trial Court has not relied upon the writing Exhibit 76, alleged to have been made by the deceased; that the hand writing expert to whom the hand writing was sent has not been able to give opinion in respect of the said hand writing that the two eye witnesses P.W. 1 Vijay and P.W. 2 Purushottam had been taken for recording their statement under section 164 of Cri.P.C. before the Magistrate on 21-6-1990, but they did not support the prosecution case and it is from this time onward that efforts made by Investigating Officer to implicate the appellant by belatedly recording the statements of other witnesses, which cannot be believed in the circumstances. He criticized the trial Court on the question of accepting the disclosure and recovery, on the strength of the evidence of Investigation Officer, when the pancha witnesses to said disclosure and recovery had not supported the prosecution case, and A.P.P., was not able to elucidate any material favourable to the prosecution during the cross examination. He took us through evidence of relevant witnesses and urged that their testimony not only suffers from belated recording and introduction in the case; but that their evidence cannot be otherwise accepted so as to base the conviction on the same. 27.On the other hand, the learned A.P.P. urged before us that even though the statements of some witnesses had been recorded with inordinate delay, yet on that ground alone their testimony cannot be disbelieved; that the statements of the said witnesses P.W. 12 Dharampal, P.W. 11 Haridas and P.W. 18 Sulochana are intrinsically trustworthy, which have been accepted by the trial Court and there is no reason or justification to interfere with the assessment of the trial Court. He also pointed out that the recovery of the knife has been duly established through Investigation Officer, blood was found on the said knife and on the clothes of the accused blood stains were found. He therefore, urged that the appeal be dismissed. 28.Initially the investigating agency had recorded statements of two eye witnesses P.W. 1 Vijay and P.W. 2 Purushottam and those witnesses were taken to the Magistrate for recording their statements under section 164 of Cri.P.C. In the said statements before the Magistrate, these two witnesses, P.W. 1 and P.W. 2 had stated that they had not seen the incident. These statements were recorded on 21-6-90. It is only after this that the attempts were made by the investigating agency to collect more evidence against the appellant. The statement of P.W. 11 Haridas was recorded on 27-6-1990 and in his deposition before the Court he had stated that Shaikh Yunus, Jalandar Fulzele and Ananda Bhasme were standing alongwith him in front of the Municipality at about 12.00 to 12.30 p.m. thereafter, they all wandered together in the ward for some time and all them came back at about 3.30 p.m. to the side of the Municipality. At that time Jalandar asked Shaikh Yunus to enquire about the complaint from the police station, lodged by Keshav Choudhari against him. Shaikh Yunus went inside the police station and Jalandar deceased went for passing urine towards bus stand. Shaikh Yunus returned from the police station and reported that a complaint had been lodged by Keshav against Jalandar. While they were waiting for the return of Jalandar, Jalandar came at that time pressing below his chest by one hand and on back by the other hand towards them and he told that he was stabbed by Keshav Choudhari and fell down. What flows from the deposition of P.W. 11 Haridas is that Shaikh Yunus, deceased Jalandar Ananda Bhasme and Haridas himself belong to one group and that is how Shaikh Yunus had gone to the police station to enquire about the report lodged by Keshav against the deceased. According to the evidence of P.W. 11 Haridas, oral declaration was made by the deceased Jalandar to him, Shaikh Yunus and Ananda Bhasme. According to the evidence of P.W. 11 Haridas, oral declaration was made by the deceased Jalandar to him, Shaikh Yunus and Ananda Bhasme. It is rather surprising and baffling that none of them and not even Shaikh Yunus who had gone to the police station to make enquiry about the report made by the appellant Keshav against the deceased Jalandar, reported that such oral declaration had been made by deceased Jalandar to them. P.W. 11 Haridas, admits that his shop is near police station and that he used to pass by that side almost daily. After the incident, he did not give any information to the police of the oral declaration made by the deceased to him or to Shaikh Yunus or to Ananda Bhasme. P.W. 11 further states that police had made inquiry with him after some days after the incident; however, the statement of this witness has been recorded only on 27-6-1990 that is to say after more than 40 days of the incident. If the police had made enquiry with P.W. 11 Haridas after some days of the incident, it is but natural that he would have disclosed the fact of oral declaration made to him by Jalandar on the day of the incident. Therefore, the testimony of Haridas P.W. 11 does not sound to reason and it appears that this witness is a got up witness, after the two eye witnesses P.W. 1 and P.W. 2 had failed to support the prosecution case, during the course of their statement under section 164 of Cri.P.C. which is stated to have been recorded on 21-6-1990. He had admitted that Shaikh Yunus and Jalandar were externed twice from the town before the incident. It speaks volumes of the personality of these persons. 29.P.W. 12 Dharampal who is alleged to have seen the incident was examined by police only on 10-7-1990. He had stated that Jalandar was Municipal Council Member at that time and Shaikh Yunus was President of Municipal Council. The incident in question appears to have some political colour and in fact, the history which was recorded by the Medical Officer at the time of admission of the deceased in the hospital at 6.00 p.m. reveals that the incident had taken place due to political fight between the rival groups. The incident in question appears to have some political colour and in fact, the history which was recorded by the Medical Officer at the time of admission of the deceased in the hospital at 6.00 p.m. reveals that the incident had taken place due to political fight between the rival groups. P.W. 12 Dharampal has stated that even though police station is about 50 feet from the place of incident, he did not go to the police station to inform the police station of the incident, though he claims to be Social Worker and has stated that he used to move in the area often i.e. area of municipality, bus stand, police station for social work and they had attended the funeral of the deceased Jalandar, yet he did not report to the police that he had seen the incident. It is only on 10-7-1990 i.e. to say after about 55 days of the incident that the statement of Dharampal P.W. 12 was recorded by the police. There can be manner of doubt, that statement of Dharampal P.W. 12, statement of P.W. 11 Hardas; and P.W. 18 Sulochana on which primarily prosecution case rests, had been recorded with inordinate delay. The prosecution has not offered any explanation whatsoever through evidence of the Investigating Officer who was examined regarding inordinate delay in recording the statement of these witnesses. The prosecution is bound to offer explanation as to inordinate delay in recording the statement of material witnesses and the effect of inordinate delay in recording the statements of material witnesses has to be examined and assessed in the light of facts and circumstances of each case; no such straight jacket formula can be laid down in this respect. Though, if the evidence of material witnesses whose statements were recorded with inordinate delay, are found to be trustworthy, there is no bar in placing reliance on the statement of such witnesses. 30.The statements of P.W. 12 Dharampal and P.W. 11 Haridas, do not possess the imprint of trustworthiness. In the light of facts and circumstances of this case we find it rather difficult to rely upon their testimony in order to sustain conviction of the appellant. 30.The statements of P.W. 12 Dharampal and P.W. 11 Haridas, do not possess the imprint of trustworthiness. In the light of facts and circumstances of this case we find it rather difficult to rely upon their testimony in order to sustain conviction of the appellant. 31.Coming to the statement of Sulochana P.W. 18, though, she has stated that the deceased told her in the hospital on 15-5-90 that he was stabbed by Keshav Choudhari appellant yet, even in her statements which were recorded by police station on 10-7-1990 she had not stated that her husband had told her that he was stabbed by Keshav Choudhari. This aspect is crystal clear from the evidence of Investigating Officer P.W. 21 who had recorded her statement who has stated that in the said statement recorded on 10-7-1990 she had not stated that her husband had told her that he was stabbed by Choudhari. Therefore, the evidence of P.W. 18 Sulochana on the question of oral dying declaration made by her husband has no merit. 32.The prosecution had also relied upon the written statement found recorded on O.P.D. papers and more particularly on Exhibit 76, but the trial Court has rightly not placed reliance on this testimony. The prosecution has not adduced any evidence to show as to in whose presence that hand writing was made. Dr. Deshdiwakar P.W. 16 has stated that he could not say about the said writing and by whom it was written and that he had not seen the victim patient writing the contents. The prosecution through the evidence of P.W. 18 Sulochana wife of deceased had tried to prove the said hand writing and signature of Exhibit 76. P.W. 18 Sulochana has stated that the statement of her husband was recorded in the hospital, but she was not inside. No such statement, if same was recorded by anyone, has been produced. She was further shown the Exhibit 71 and she identified the handwriting and signatures on Exhibit 76 as that of her husband. Before showing the said handwriting and signatures on Exhibit 76 by A.P.P. she was not even questioned as to whether she was familiar with the handwriting of her husband, or that she could or whether she can identify the handwriting of her husband. Without asking the same, the handwriting was straightway shown to her and she identified that to be handwriting of her husband. Without asking the same, the handwriting was straightway shown to her and she identified that to be handwriting of her husband. The police had sent the alleged admitted signatures of the deceased on the book maintained by municipality for comparison with the signature on Exhibit 76. First of all alleged admitted signatures on the book which were sent for comparison with signatures on Exhibit 76 have not been proved. P.W. 13 Clerk of municipality who identified the signatures on page No. 1 at Serial No. 10 and at page 6 at Serial No. 11 as that of the deceased has admitted that the particulars were not required to be signed before the clerk. Therefore, it is not understood as to how he could identify the signatures on the book which was sent for the comparison with the signatures on Exhibit 76. Besides this, the handwriting expert in his opinion has stated that the red-encircled signature marked as Ex. 1 shows similar model and design, when compared with those on the Exhibit marked as N-1. However, in absence of adequate common data for comparison, does not make possible to lead any definite opinion as regards their common identity or otherwise. Except for signatures on Exhibit 76, the other part of the handwriting was not sent for comparison. In view of the above, we find that the trial Court had rightly not taken into consideration this piece of evidence against the appellant. 33.Once the evidence of P.W. 11, Haridas P.W. 12 Dharampal, P.W. 18 Sulochana wife of deceased is found to be untrustworthy and the evidence relating to Exhibit 76 is discarded, nothing remains in the prosecution case. In the absence of panchas supporting the prosecution case relating to disclosure and recovery, the said disclosure and recovery could not be accepted solely on the basis of testimony of the Investigating Officer. Even though, it was urged by learned A.P.P. that there were blood stains on the clothes of the accused, yet, we find that on the clothes of the accused appellant which are Article 3 and 4 in the Chemical Analysers Report, no blood was detected on the said clothes. 34.For the reasons stated above we are of the view that the prosecution had failed to prove the charge against the accused/appellant beyond reasonable doubt and as such the appellant/accused in our opinion is entitled to acquittal. 34.For the reasons stated above we are of the view that the prosecution had failed to prove the charge against the accused/appellant beyond reasonable doubt and as such the appellant/accused in our opinion is entitled to acquittal. Accordingly, the conviction and sentence imposed on the appellant/accused by the judgment dated 1-8-94 in S.T. No. 185/1990 passed by Additional Sessions Judge, Wardha is required to be set aside. The appeal is accordingly allowed. The conviction and sentence imposed by the trial Court on the appellant/accused vide judgment impugned dated 1-8-94 in S.T. No. 185/90 (passed by Additional Sessions Judge, Wardha) is hereby set aside. The appellant shall be set at liberty, in case he is not required in any other case. Appeal allowed. -----