These two connected Criminal Appeals were filed by Siaram, Ram Charan alias Changa, Bhagwan Das and Maloo (in Criminal Appeal No. 1172/80) and Megh Singh, Ram Charan and Satpal (in Criminal Appeal No. 1174/800. Siaram, Ram Charan alias Changa, Megh Singh and Ram Charan were convicted under Section 148 IPC and sentenced to undergo R. I. for two years. They were further convicted under Section 302 IPC read with Section 149 IPC and sentenced to undergo imprisonment for life. They were also further convicted under Section 323 IPC read with Section 149 IPC and sentenced to undergo R. I. for one year for causing injuries to Hori Lal. They were further convicted and sentenced to one years R. I. under Section 323 IPC read with Section 149 IPC for causing injuries to Basudeo. All the sentences of these four appellants were directed to run concurrently. The accused persons of Criminal Appeal No. 1174/80 Bhagwan Das, Maloo and Satpal were convicted and sentenced to R. I. for two years under Section 147 IPC. They were also convicted and sentenced to life imprisonment under Section 302 IPC read with Section 149 IPC. They were further convicted under Section 323 IPC read with Section 149 IPC and sentenced to undergo R. I. for one year for causing injury to Hori Lal. They were further convicted under Section 323 IPC read with Section 149 IPC and sentenced to one years R. I. for causing injuries to Basudeo. All the sentences were directed to run concurrently. 2. In this case incident had occurred at about 5. 30 p. m. The report of the incident, Ext. Ka 1, was lodged at about 12. 30 p. m. on the next day by Bhurey Lal son of deceased Dhani Ram. Motive behind the incident as alleged by Bhurey Lal, is that they had not permitted the appellants to take a watercourse to their filed. Since the date of refusal the appellants were entertaining animosity with the whole family including their father. On 15-2-1979 when the informant along with his father and brother Radhey Shyam were returning after selling Rab (Molasses) to their house on a dunlop bullock cart, in the way two villagers Basdeo and Hori Lal also met them at about 5. 30 p. m. These persons also boarded the cart. On 15-2-1979 when the informant along with his father and brother Radhey Shyam were returning after selling Rab (Molasses) to their house on a dunlop bullock cart, in the way two villagers Basdeo and Hori Lal also met them at about 5. 30 p. m. These persons also boarded the cart. When the dunlop cart reached village Kunerpur, near the grove of Jivan, appellant Siaram and Ram Charan alias Changa armed with guns, Megh Singh armed with a pharsa Ram Charan S/o Dwarka armed with a bhala and the remaining accused Maloo resident of Village Kunerpur, Satpal first cousin of Megh Singh resident of village Rampur and Bhagwan Das S/o Siaram armed with lathis accosted them. They stated "since they were not allowed to draw watercourse through his filed they will teach them a lesson". Then and there Siaram and Ram Charan took positions and exhorted others to assault and stated "let us see who saves them. " Megh Singh and others armed with Pharsa, lathis and spear started assaulting the informants father. Informant claimed that he and his brother ran towards the village. His father also alighting from Dunlop cart ran Northeast towards the filed of Megh Singh. Their alarm attracted witnesses Nanhey Ram, P. W. 3 Ghurey Ram and many others to the spot. The assailants chased his father and killed him in the filed of Megh Singh by assaulting with Pharsa and Bhala. When the witnesses chastised them they ran away. Basdeo and PW 2 Hori Lal, who intervened were also beaten by lathi. The incident was witnessed by both the injured and other witnesses. Informant, leaving his family members at the spot, went to the police station. The F. I. R. came to be lodged 19 hours after the murder. The explanation for it is that due to rain and fear of the assailants, he could not dare to go to police station during night. 3. The prosecution in support of its case has examined three eye- witnesses. Bhurey Lal P. W. 1. He is son of the deceased. Hori Lal P. W. 2 is an injured witnesses. Ghurey Ram is P. W. 3, P. W. 5 Doctor H. S. Ambwani had conducted the autopsy on the person of the deceased. P. W. 8 Dr. R. C. Sharma conducted the medical examination of injured persons, Basdeo and Hori Lal, on the next day. He is son of the deceased. Hori Lal P. W. 2 is an injured witnesses. Ghurey Ram is P. W. 3, P. W. 5 Doctor H. S. Ambwani had conducted the autopsy on the person of the deceased. P. W. 8 Dr. R. C. Sharma conducted the medical examination of injured persons, Basdeo and Hori Lal, on the next day. The autopsy report is Ext. Ka-5 and the injury reports are Ext. Ka-6 and 7. Vishnu Dutt Mishra P. W. 4 is Head Constable. He had prepared the check FIR and G. D. entries. Lalta Prasad P. W. 6 is Head Moharir, Sardar Malkhana. Kripal Singh P. W. 7 is constable who had brought sealed articles of the case property. S. K. Sharma P. W. 9 is the Investigating Officer, P. W. 10 constable Jai Pal Singh escorted the dead-body for the post- mortem examination. P. W. 11 Mohd. Naquvi took sealed bundles from Medical Officer for chemical examination. This is the entire evidence. The defence has produced Mahendra Singh DW 1 and Chedda Khan, P. W. 2, Irrigation Lekhpal who has proved village shizra. 4. The defence has challenged the prosecution case on the grounds; that genuineness of the FIR is highly doubtful; that there is likelihood that the incident occurred after sunset; that the explanation offered for delay in making the FIR clearly indicates police assistance in its preparation, and that the presence of the prosecution witnesses in the circumstances is highly doubtful. 5. So far as P. W. 2 and other injured Basudeo are concerned, FIR shows that they accompanied the informant. Evidence further shows that they had boarded bullock cart of the deceased at an intermediary place i. e. near village Pachak. It is this village where the filed of the informant and the appellants fall or are situated. 6. Dealing with the first submission regarding authenticity of the FIR we find substance in this contention. In para 1 while offering the explanation for delay, informant P. W. 1 stated that he did not make any attempt to lodge the report during night or in the early hours of the morning due to fear of the assailants as also rain. Dealing with the first submission regarding authenticity of the FIR we find substance in this contention. In para 1 while offering the explanation for delay, informant P. W. 1 stated that he did not make any attempt to lodge the report during night or in the early hours of the morning due to fear of the assailants as also rain. According to him he transcribed the report of the incident next day in the morning and they had proceeded by train to police station Fatehgarh with Latoori Singh, Ram Kirat and two injured Hori Lal and Basdeo. They had also walked some distance on foot. He had very clearly admitted that due to fear none from the village accompanied them. He had taken Ram Kirat from village Nasirpur and Lotoori Singh from village Kuwakhera. These two villages do not fall on the way to police station Fatehgarh. Nasirpur village is about one mile from his village and Kuwakhera is about half mile from Nasirpur. They had proceeded from Kuwakhera and dropped down at Sahaspur Station. From there they had gone to police station Fatehgarh by train. From Bilari above police station is about 4-5 miles Sahaspur police station falls in Bilari. He has denied existence of any shorter route Ukrauli is too far away from the police station concerned. According to him he reached Kudh from Bilari in 2-2 1/2 hours. He reached Bilari at about 10. 00 a. m. He was unable to give out the time that was taken by him in reaching village Bilari from Kuwakhera. He had also stated that he boarded the train from Kuwakhera. He did not know how much time was taken to reach Bilari. According to him he started from Kuwakhera later on. He gave out that he started from Kuwakhera at about 9. 45 a. m. He further admitted that there is a train from Bilari at about 4. 40 a. m. Though there is a train halt at Kuwakhera but it was night, therefore, he had not gone by this train. When he was further probed on the point of report in para 27- 28 very material facts have been revealed which discredit the veracity of the FIR completely. In para 27 he admitted that the report was transcribed by him on his own. It was transcribed near the dead-body. When he was further probed on the point of report in para 27- 28 very material facts have been revealed which discredit the veracity of the FIR completely. In para 27 he admitted that the report was transcribed by him on his own. It was transcribed near the dead-body. When he was confronted with the statement made by him in the FIR. "i leaving my family members near the dead-body came to lodge this report" he was unable to explain. He admitted clearly that these lines were not transcribed by him in his written report Ext. Ka-1. These lines were written by him at police station Kuwakhera. Rest of the report was transcribed by him near the dead-body. He further admitted that he had not made initial on this report in the village. He explained it by stating that there was no necessity for putting his signature in the village. He further stated that he prepared his report in one stroke but he did not feel any necessity for putting his signature at the end. He clearly admitted that he had not transcribed the above said statement and the word `prarthi at the spot. These lines and word Prarthi were transcribed by him at Kuwakhera police out post. He had explained the anomaly by saying that he had transcribed last line and the word `prarthi and put his initial underneath it at the above said police outpost because he was lodging the FIR after a day and he had to give the reason for this delay. The Investigating Officer would have enquired from him who made the report, therefore, he had wrote the word `prarthi and also put his name underneath it. This fact that Sub-Inspector will enquire from him about the maker of the report did not pass his mind while transcribing the report near the dead- body therefore, he had not written the word Prarthi and his name there. He has very candidly accepted in Court that now he cannot transcribe a similar report. He has offered an explanation that since his stomach is aching and it will take sufficient time in transcribing the same he cannot write it. Examining these circumstances very carefully we have no hesitation in coming to the conclusion that this FIR was transcribed at the police outpost Kuwakhera or at the police station but not at the spot. He has offered an explanation that since his stomach is aching and it will take sufficient time in transcribing the same he cannot write it. Examining these circumstances very carefully we have no hesitation in coming to the conclusion that this FIR was transcribed at the police outpost Kuwakhera or at the police station but not at the spot. The above said conclusion of ours is further fortified by under mentioned facts. 7. D. W 1 has admitted clearly that only two police outposts are in Fatehgarh police station. One is in village Bania Khera and other is in village Narauli. The report can be made in Narauli police outpost also. 8. Thus from his statement and the statement of P. W. 8, Investigating Officer it transpires that there is no police out post in Kuwakhera. This witness P. W. 1, therefore, is telling a lie that he had transcribed the later portion of the FIR at police outpost Kurwakhera. From the evidence it is apparent that the police out post Narauli is at a much shorter distance than police station Kuwakhera. Some more facts clinch this point in favour of defence further. It is admitted to this witness that Ram Chand is Chaukidar of this village. He was residing in village Kachhar which is admittedly 1/2 mile from the place of occurrence but no attempt was made to call him during night. 9. P. W. 4 Vishnu Datt Misra had claimed his arrival at the spot. He is village Pradhan. It is beyond comprehension that despite his presence not a single person of the village suggested for lodging of the FIR during night. P. W. 2 has admitted categorically that no one after assault suggested for lodging of the report. Even when large number of villagers collected none from amongst them had suggested for lodging of the report. He claimed that all of them had stayed near the dead-body. He further admitted there are three licence holders in his village but denied coming of any one of them to the spot. Pradhan claimed that he remained at the spot for about 1/2 an hour and thereafter, left for his house. He had also neither suggested nor endeavoured to accompany the informant to police station for lodging the FIR during night or in the early hours of the morning. Pradhan claimed that he remained at the spot for about 1/2 an hour and thereafter, left for his house. He had also neither suggested nor endeavoured to accompany the informant to police station for lodging the FIR during night or in the early hours of the morning. Apart from it, it is evident from the special report, that neither the time of occurrence nor the time of registration of the FIR is disclosed in it. No time of F. I. R. in the inquest memo, Ext. Ka-8 in column 3 is noted on page 1, the distance of the police station from the village is shown 12 miles in the inquest report whereas in the copy of the GD and check FIR this distance is noted as 10 miles. The explanation offered for this mistake by Investigating Officer is that it was 12 miles in his estimation. Therefore, he transcribed the same. He further stated that the distance given in G. D. and check FIR was not necessary to be noted in this column. This explanation does not pass down our throat. According to police manual distance show in G. D. is to be noted in Inquest memo. It is to be so to provide us a check upon the authenticity of the F. I. R. Apart from this there is another circumstances available to us on this point. The estimated time of death is not noted in Form 13. The Investigating Officer tried to explain this omission by stating that he is not an expert in post-mortem examination. This explanation is wholly untenable in law. It is a requirement of law that estimated time should be transcribed in Form 13. If the F. I. R. containing the averments of time of death of the deceased had come into existence there is no question of not mentioning this fact in Form No. 13. These are some checks and balances provided by law to indicate whether F. I. R. was ready before the inquest. We are of the opinion that at the time of preparation of the inquest the written report certainly was not ready. These are some checks and balances provided by law to indicate whether F. I. R. was ready before the inquest. We are of the opinion that at the time of preparation of the inquest the written report certainly was not ready. Yet another circumstance strengthens our conclusion further that dead-body of the victim was although handed over to the constables in the evening immediately on the conclusion of the inquest but constable P. W. 10 Jai Pal Singh started from the spot on 17-2-1979 at about 7-8 a. m. in the morning by a jeep. The dead-body was handed over to him at about 4. 30 p. m. on previous evening. This delay is wholly unexplained. Therefore, there is no dearth of evidence in the case on the basis of which we can safely conclude that this FIR was not prepared at the time alleged by the prosecution. 10. The second contention regarding presence of witnesses at the time of incident has also some force. From the above said facts regarding FIR and its preparation discussed above it can safely be presumed that the dead-body was not located in the night but was found some time during morning hours and in all probability informant was called and the written report was prepared in consultation with the Sub- Inspector, the Investigating Officer. This leads us to an irresistible conclusion that no authenticity can be attached to time of incident as disclosed in the FIR i. e. 5. 30 p. m. The defence suggestion that the incident had taken place after sunset around 7-8 p. m. not only appears to be probable but also plausible. No source of light will be available to the witnesses of the incident has occurred at 7-8 p. m. The deceased, according to P. W. 1, had gone along with them to sell their Rab at Chandausi. P. W. 1 is wholly unable to give the photography of the market where this Rab was sale by the deceased. When he was cross-examined about the price for which Rab was sold he was unable to disclose it. Rab was in 30 containers. What was rate settled between the parties he was unable to give out. He introduced his brother Radhey Shyam as the person who had settled the price and received the same. When he was cross-examined about the price for which Rab was sold he was unable to disclose it. Rab was in 30 containers. What was rate settled between the parties he was unable to give out. He introduced his brother Radhey Shyam as the person who had settled the price and received the same. He was forced to admit that his third brother who was a homeguard was also present there when the Rab was sold and the Rab was entered in his name in the books of account of the shopkeeper. He was unable to give any detail regarding the route adhered to in going to Chandausi. According to him the assailants were inimical not only to his father but to him and his family members also. Absence of any injury on his and his brother person despite the fact that the FIR clearly indicates that the assault was launched by the assailants when they were on the dunlop cart itself is mysterious. They had run thereafter. The version has been slightly modulated by this witness in his deposition in the Court. Now his case is that no assault was commenced while they were on the dunlop cart. The assailants stopped the cart from the front and as soon as they threw a challenge they started to run away. He and his brother ran towards village raising alarm. His father ran north east towards the filed of appellant Megh Singh where he was ultimately done to death. Thus this modulation in the version was deliberate in order to explain no injuries on their person. Testimony of P. W. 2 and P. W. 3 further show that neither he nor his brother along with the deceased returned. P. W. 3 very clearly says that only he and Nanhe went to the place where the deceased was being assaulted. Beasdeo and Hori Lal were also present there. On a challenge thrown by these four person the assailants took to their heels. To the same effect is the statement of P. W. 1 and P. W. 2. They stated that Nanhe and Bhurey Lal arrived at the scene of occurrence. Admittedly Nenhe is first cousin of P. W. 3. P. W. 3 appears to be inimical to these appellants. To the same effect is the statement of P. W. 1 and P. W. 2. They stated that Nanhe and Bhurey Lal arrived at the scene of occurrence. Admittedly Nenhe is first cousin of P. W. 3. P. W. 3 appears to be inimical to these appellants. P. W. 3 has admitted that he was going to ease but it was not so disclosed by him in his statement to the Investigating Officer. In the trial he has come out with a case that he was going to ease at the pond which is some 40 steps from the house of Megh Singh. It would not have been possible for this witness to reach the spot. This witness himself has admitted that the pond where he was going to ease was a field away from village Abadi. This means the pond was very close to the village Abadi itself. There are houses in the vicinity of the Talab. He had further admitted that from the pond village Abadi is not visible. He had not eased. The pond as admitted to this witness falls before the place of occurrence. He claimed that he had walked 5-6 paces further from the pond when he heard an alarm, he ran to that place where the murder was committed. If the purpose was to go to ease why will he move ahead from the pond. His testimony clearly discloses that he had appeared as witness against some of the appellants. His evidence further shows that there is parti bandi in the village. The witnesses belong to his group whereas the appellants belong to the rival candidate who lost the election for Pradhanship. Although it is not clearly admitted by this witnesses but on examining his statement closely there remains no room for any doubt in our mind that P. W. 2 Hori Lal belongs to his group and is also inimical to these appellants. 11. So far as Injuries of Hori Lal and Bhurey Lal are concerned they might have been present and also assaulted. If the time of the incident was not 5. 30 p. m. but was after the sunset then complete absence of any source of light makes it impossible for them to identify the assailants. These two witnesses had suffered only lathi injuries. Lathis are normally plied from some distance. It is 6-7 feet in length. If the time of the incident was not 5. 30 p. m. but was after the sunset then complete absence of any source of light makes it impossible for them to identify the assailants. These two witnesses had suffered only lathi injuries. Lathis are normally plied from some distance. It is 6-7 feet in length. Therefore, in the absence of any source of light it will not be possible for them to identify the assailants. Their evidence is, therefore, not to be implicitly relied upon. 12. The story of sale of Rab by the deceased in company with his two sons is also modified to a large extent. The evidence shows that the victim had gone to sell Rab along with two of his sons as admitted by P. W. 1. For the first time in the entire season P. W. 1 claimed that he had accompanied his father to sell rab. Another brother of his was already in Chandausi. What appears probable to us is that the deceased alone had gone to Chandausi market where his third son Sompal was already present. He had sole his rab. Deceased Dhani Ram was returning singularly with the price of rab. It appears probable that he was robbed by unidentified robbers of the sale proceeds. In the process he was done to death. It does not stand to reason that 30 containers of Rab was sold only for a price of Rs. 375. The change in the version that the price of Rab was settled by Radhey Shyam another brother and the sale price was collected by him was not without purpose. No money was recovered from the person of the deceased. Introduction of Somepal, the third brother and entry in his name in the books of the shop where this Rab was sold leaves no room for doubt that P. W. 1 and his brother Radhey Shyam did not accompany their father to the market. Radhey Shyam sold Rab and received its price did not find any mention in the FIR. P. W. 1 was unable to offer any explanation for this omission. Complete absence of any examination of the shopkeeper concerned or the records of the shop by Investigating Officer is another very important infirmity. Radhey Shyam sold Rab and received its price did not find any mention in the FIR. P. W. 1 was unable to offer any explanation for this omission. Complete absence of any examination of the shopkeeper concerned or the records of the shop by Investigating Officer is another very important infirmity. It further goes not corroborate the defence suggestion that the victim Dhani Ram was robbed by unknown persons and the appellants were involved in this case on account of enmity after due deliberation and consultation. Inspection note of Sessions Judge as well as statement of D. W. 2, statement of P. W. 2 and the Investigating Officer clearly show that a gul (water course) was already in existence from the main road to the filed of the appellants specially Siaram and another. 13. The case of the prosecution is that the appellants wanted to draw a water course from the filed of the deceased upto their filed Plot No. 57. When a watercourse is available to the defence from the main water course upto this part of the filed why will the appellants demand it from the filed of the deceased. We are unable to subscribed to the prosecution case that the animosity was on account of any attempt on the part of the defence to draw any watercourse from deceaseds filed. 14. From the report of Chief Judicial Magistrate, Moradabad it transpires that Siaram and Ram Charan alias Changa appellants of Appeal No. 1172 of 1980 have died during pendency of the appeal. Their appeals stand abated. 15. In view of the above said discussion both these appeals are allowed. The judgment and order of conviction dated 23-3-1980 in Criminal Appeal No. 1172/80 and Criminal Appeal No. 1174/80 passed by learned Sessions Judge insofar as it relates to the surviving appellants is hereby set aside. The appellants in both the appeals are acquitted of the offences charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .