JUDGMENT 1. - The seven appellants before us are members of one family. They were indicated for having committed murder of Ghasi Lal before the learned Additional Sessions Judge No.1 Kota in Sessions Case No. 46/92. All were found guilty, convicted and sentenced vide judgment dated 23.2.1996 by the learned Judge as under:- 1. Ghanshyam under section. 302 Indian Penal Code to suffer imprisonment for life and fine of Rs. 1,000/- in default to further undergo R.I. for two years under section. 148 Indian Penal Code to suffer one year RI and fine of Rs. 500 in default to further suffer RI for 3 months under section. 324/149 Indian Penal Code to suffer one year RI and IPC fine of Rs. 500/- in default to further suffer RI for three months 2. Dhan Raj under section. 302/149 Indian Penal Code to suffer imprisonment IPC for life and fine of Rs'. 1,000/- in default to further undergo R.I. for two years under section. 147 Indian Penal Code to suffer Six months SI and fine of Rs. 250/- in default to further suffer SI for 15 days under section. 324 Indian Penal Code to suffer one year RI and fine of Rs. 500/- in default to further suffer RI for three months 3. Ram Gopal under section. 302/149 Indian Penal Code to suffer imprisonment for life and fine of Rs. 1,000/- in default to further undergo R.I. for two years. 4. Ganga Ram 5. Bal Mukand 6. Harish Chandra 7. Om Prakash Under section 147 Indian Penal Code to suffer Six months SI and fine of Rs. 250/- in default to further suffer SI for 15 days. Under secrtion 324/149 Indian Penal Code to suffer one year RI and fine of Rs. 500/- in default to further suffer RI for three months. All the sentences were directed to run concurrently. Against this judgment of conviction that the appellants have preferred instant appeal. 2. Entire structure of the prosecution case is founded on a written report (Ex.P/1) instituted by informant Girraj (PW-2) with the Police Station Itawa on 2.11.1991 at 2.45 p.m. with the averments that on that day his uncle's son Ghasilal (since. deceased) had come to Pipalda Kalan from Kota after attending the Court and when he was standing in front of Gurudwara, the appellants came over there armed with lathies and Gandasies encircled Ghashilal and started beating him. deceased) had come to Pipalda Kalan from Kota after attending the Court and when he was standing in front of Gurudwara, the appellants came over there armed with lathies and Gandasies encircled Ghashilal and started beating him. Ghanshyam inflicted a Gandasi blow on the head of Ghasi whereas Dhan raj gave blow with Gandasi on his left thigh. Other five appellants gave beatings with lathies. On being intervened by the informant, Adisal Singh and Aniar Singh, the appellants fled away. The informant thereafter brought Ghasi to the Hospital in an unconscious state and submitted the report. The Police Station Itawa registered FIR No. 178/91 under sections. 147, 148, 149 & 307 Indian Penal Code and investigation commenced. The injured Ghasi was medically examined and was found to have sustained injuries caused by sharp-edged weapon. The injury on the head was referred for X-ray and the second injury on the thigh was found to be simple. Injured Ghasi thereafter was sent to M.B.S. Hospital Kota where he expired on 4.11.1991 and the case was converted into one under section. 302 Indian Penal Code. The Investigating Officer inspected the site. Autopsy on the dead body was conducted. Statements of the witnesses were recorded. Accused were arrested. Weapon of offence were recovered. On conclusion of the investigation charge-sheet was filed. In due course the case came up for trial. Charges under sections. 147, 148, 302, 302/149, 324 & 324/149 IPC were framed. The appellants denied the charge and claimed trial. The prosecution examined as many as 24 witnesses in support of its case. In their statements under section. 313 Criminal Procedure Code the appellants denied the allegations. Appellant-Dhan Raj stated that witness Girraj falsely implicated their entire family in the case. However, no witness was examined in defence. Learned trial Judge after hearing final submissions, convicted and sentenced the appellants as indicated here in above. 3. We have heard the rival submissions and scanned the record. 4. The case of the prosecution is hinged upon the testimony of Girraj (PW-2) who according to the learned counsel for the appellants, is a chance witness and closely related to the deceased. Girraj in his deposition stated that on 2.11.1991 around 2.30 p.m. he was sitting under the shadow of a tree near Ramdwara and talking to Adisal and Amar Singh. Girraj in his deposition stated that on 2.11.1991 around 2.30 p.m. he was sitting under the shadow of a tree near Ramdwara and talking to Adisal and Amar Singh. At that time Ghanshyam inflicted gandasi blow on the head of Ghasi and Dhanraj gave Gandasi blow on his left thigh on account of which Ghasi fell down and thereafter Harish Chandra, Ram Prakash, Bal Mukand, Ganga Ram and Ram Gopal gave beatings with lathies. All the assailants came together via Kajaliya's way and started marpit with Ghasi. He shouted and intervened. Persons sitting on tea shop and.betel shop also came over there and intervened. The assailants then fled away. He took injured Ghasi in a jeep to the Hospital at Itawa and thereafter went to the Police Station to lodge the report. He gave oral narration and the police persons wrote the report. In his cross-examination Girraj stated that Ghasi was his uncle's son. The report was got written by a constable and thereafter it was handed over to the SHO. This witness further deposed that many criminal cases were pending against Ghasi. In Raghunath's murder case he was also accused. This witness had seen the assailants when they were 25 feet away. He reached at the `Haat' along with Adisal around 2.30 p.m. He got his white safi (head gear) wrapped over the head injury of Ghasi. Injured Ghasi was lifted and pushed in the jeep by him, Dwarka, Brij Mohan and Prem Bai. At that time their clothes were smeared with blood. 5. Amar Singh (PW-5) and Adisal (PW-10) who were named in the FIR as eye-witnesses did not support the prosecution. Balwant Singh, tea shop owner (PW-6), Purshottam Nai (PW-7) and Abdul Sattar Driver (PW-8) who were examined by the prosecution as eye-witnesses of the occurrence were also declared hostile. Babu Lal (PW-9) and Motilal (PW-13) in front of whom Gandasi was allegedly recovered did not support the prosecution version and were declared hostile. 6. Dr. Shambhu Dayal Sharma (PW-23) examined Ghasi Lal on 2.11.1991 at 3.00 p.m. in the Hospital at Itawa. As per injury report Ex.P/29 following two injuries were found : (i) Incised wound 5" x 1' x Bone deep Front of Parieto Region 3" behind both frontal prominance. (ii) Incised wound 1" x 1/4" skin deep left thigh. 6. Dr. Shambhu Dayal Sharma (PW-23) examined Ghasi Lal on 2.11.1991 at 3.00 p.m. in the Hospital at Itawa. As per injury report Ex.P/29 following two injuries were found : (i) Incised wound 5" x 1' x Bone deep Front of Parieto Region 3" behind both frontal prominance. (ii) Incised wound 1" x 1/4" skin deep left thigh. Ghasi Lal was referred to Government Hospital Kota for X-ray of injury No. 1 and further treatment. Dr. Shambhu Dayal Sharma, reserved his opinion about injury No. 1 till the receipt of X-ray report and about injury No. 2 he opined that it was simple in nature. In the report Ex.P/29 it was no where mentioned that the injuries were sufficient in the ordinary course of nature to cause death. Dr. Shambhu Dayal Sharma even in his statement did not say that fact. In his cross-examination Dr. Sharma said that the injured was brought before him at 3.00 p.m. and the SHO Itawa also came along with the injured. 7. Dr. Y.K. Sharma (PW-19) conducted autopsy on the dead body of Ghasi Lal on 4.11.1991. He found following injuries : (i) Stitched wound 6" on Middle of Parietal Region of scalp. (ii) Stitched wound 1" on Lt. thigh. (iii) Abrasion 2" below of injury No. 2. In the opinion of Dr. Y.K. Sharma death was caused due to coma as a result of ante-mortem head injury. 8. Ram Dhan SHO (PW-24) deposed that Girraj submitted a written report to him. He did not know the scribe of the report. He further stated that the Court of Judicial Magistrate Itawa situated at a distance of half kilometer from the Police Station. The FIR (Ex.P/2) was forwarded to the Court of Magistrate on 2.11.1991 through a constable. He denied this suggestion that the FIR was forwarded on 11.11.1991. 9. A close scrutiny of FIR (Ex.P/2) goes to show that it was reached to the Court of Ilaqa Magistrate on 11.11.1991 i.e. after nine days of the occurrence and no satisfactory explanation of this delay was given by Ram Dhan (PW-24). In column No. 3 (d) of the FIR (Ex.P/2) which relates to the date of forwarding the report from the Police Station dated "4.11.1991" was changed by overwriting as "2.11.1991". 10. In column No. 3 (d) of the FIR (Ex.P/2) which relates to the date of forwarding the report from the Police Station dated "4.11.1991" was changed by overwriting as "2.11.1991". 10. Before analysing the prosecution evidence we deem it necessary to examine as to what is the effect of delay in dispatch of first information report to the Magistrate. Section 157(1) Cr.P.C. provides for the making of a report by the police to the Magistrate before investigation. The provisions of Section 157(1) act as a guard against the scope of allegations of any subsequent manipulation in the FIR by the prosecution and in the narration of the incident. When the copy of FIR is dispatched forthwith to the Magistrate there remains lesser possibility of substituting or extracting the FIR. Therefore, prosecution version comes under heavy shadow of doubt for having failed to prove compliance of Section 157(1). Delay in dispatch of FIR to Magistrate is not a circumstance which can throw out the prosecution case in its entirety but it must have a very telling effect on the prosecution. This is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvement and the embellishment and set up a distorted version of the occurrence. 11. Now coming to the testimony of Girraj (PW-2) it may be noticed that he was closely related to the deceased. By chance he reached at the place of occurrence nearly 2.30 p.m. when the incident had occurred. He stated that when Ghasi fell down after receiving the sharp injuries on head and thigh, Harish Chandra, Ram Prakash, Bal Mukand, Gangaram and Ram Gopal gave beatings with lathies. From the medical injury report of Ghasi (Ex.P/29) it is established that he had only received two incised wounds on skull and left thigh. No injury from blunt weapon was found on his person. To that extent the ocular testimony of Girraj is not corroborated by medical evidence. This serious infirmity coupled with nine days delay in sending the FIR has a very telling effect on the prosecution. The possibility of over implication of Harish Chandra, Ram Prakash, Bal Mukand, Ganga Ram and Ram Gopal is not ruled out and their participation in the crime in our considered opinion is highly doubtful. This serious infirmity coupled with nine days delay in sending the FIR has a very telling effect on the prosecution. The possibility of over implication of Harish Chandra, Ram Prakash, Bal Mukand, Ganga Ram and Ram Gopal is not ruled out and their participation in the crime in our considered opinion is highly doubtful. But because of this embellishment and exaggerated account of the incident we can not throw the entire testimony of Girraj. In order to find out the truth we can sift the chaff from the grain. Having considered the testimony of Giraj from the point of view of trustworthiness we find that it inspires confidence to the extent of allegations levelled against Ghanshyam and Dhan Raj. Nothing could be elicited from his cross-examination that could establish his presence at the relevant time, doubtful. Therefore, we hold that Ghanshyam inflicted one Gandasi blow on the head of Ghasi Lal whereas Dhan Raj gave another gandasi blow on his left thigh but they were neither the members of unlawful assembly nor the offence was committed in prosecution of common object. Ghanshyam and Dhan Raj did not share any common intention between them and each is guilty of his individual act. 12. Now the question for consideration at this juncture is as to what offence can be said to have been committed by the appellants-Ghanshyam and Dhan Raj? As already stated only one injury on the head of the deceased was attributed to Ghanshyam. Dr. Shambhu Dayal Sharma (PW-23) and Dr. Y.K. Sharma did not say that the said injury was sufficient in the ordinary course of nature to cause death. Ghasi Lal sustained the injury on 2.11.1991 and he died on 4.11.1991. In Lachhaman Dhubha v. State, 1984 Cr.L.J. 1116 it was indicated by the Orissa High Court that when a person is said to have given a single blow on the vital part of the deceased, one can only impute knowledge that such an injury was likely to cause death and the offence would fall under section. 304 Part II IPC. In Lachhaman Dhubha v. State, 1984 Cr.L.J. 1116 it was indicated by the Orissa High Court that when a person is said to have given a single blow on the vital part of the deceased, one can only impute knowledge that such an injury was likely to cause death and the offence would fall under section. 304 Part II IPC. In Kachhawa v. State of Rajasthan, 1985 RLW 97 the deceased sustained single injury and his death did not take place instantaneously on the spot but he died after five days and the doctor of the post-mortem-examination did not state that the injury of the kind sustained by the deceased was generally sufficient in all the case to cause death in the ordinary course of nature, it was held that the offence made out was punishable under the Part II of Section 304 IPC, as culpable homicide not amounting to murder. 13. Looking to the fact that appellant-Ghanshyam inflicted only one blow which according to the medical testimony was not sufficient in the ordinary course of nature to cause death and the death of the deceased did not take place instantaneously on the spot but he died after two days, we can only impute knowledge that such an injury was likely to cause death and the offence committed by Ghanshyam would fall under section. 304 Part II Indian Penal Code. Appellant-Dhanraj is guilty of causing simple injury by sharp-edged weapon on the left thigh of the deceased and the offence committed by him would fall under section. 324 Indian Penal Code. Ghanshyam remained in custody from 12.11.1991 to 12.2.1.992 during trial and after his conviction from 23.2.1996 he has been throughout in the jail. Thus his total period in custody is 5 years and 9 months. Appellant - Dhan Raj remained in custody from 12.11.1991 to 10.2.1992 during trial and after his conviction from 23.2.1996 to 21.3.1996. Thus his total period in custody is 3 months and 26 days. In our opinion the ends of justice would be met to sentence appellant- Ghanshyam to the period already undergone by him. Appellant-Dhanraj was convicted by the learned trial Judge under section. 324 Indian Penal Code to suffer one year RI and fine of Rs. 500/-. Thus his total period in custody is 3 months and 26 days. In our opinion the ends of justice would be met to sentence appellant- Ghanshyam to the period already undergone by him. Appellant-Dhanraj was convicted by the learned trial Judge under section. 324 Indian Penal Code to suffer one year RI and fine of Rs. 500/-. Taking into account the time lag of ten years that has elapsed in between, ends of justice will be satisfied if the sentence of one year rigorous imprisonment is reduced to the period already undergone by Dhan Raj and by raising fine from Rs. 500/- to Rs. 20,000/- and in default to undergo further rigorous imprisonment of eight months. 14. In the result we allow the appeal of appellants-Ram Gopal, Ganga Ram, Bal Mukand, Harish Chandra and Om Prakash and set aside their conviction and sentence and acquit them from the charges under sections. 302/149, 147 & 324/149 Indian Penal Code. They are on bail, they need not surrender and their bail bonds stand discharged.The appeal of appellants - Ghanshyam and Dhan Raj stands partly allowed. Conviction of Ghanshyarr, under sections. 148 & 324/149 is set aside and he stands acquitted from the said charges, while converting his conviction from 302 IPC to 304 Part II, we sentence him to the period already undergone by him. He shall be set at liberty forthwith if not required in any other case.Conviction of appellant- Dhan Raj u/ss. 302/149 and 147 IPC is set aside and he stands acquitted from the said charges. While confirming his conviction under section. 324 Indian Penal Code we sentence him to the period already undergone by him and fine of Rs. 20,000/- in default to undergo further rigorous imprisonment of eight months. We grant one month time to appellant- Dhan Raj to deposit the fine with the Deputy Registrar (Judicial). Entire fine if deposited shall be paid to Smt. Pr em widow of Ghasi Lal by caste Kachhi inhabitant of village Sanavda Tehsil Pipalda Distt. Kota. If fine is not deposited in time in that event warrant of arrest shall be issued against him. The Deputy Registrar (Judicial) shall now post the case before him in order to ensure the compliance of the order on 24.9.2001.Appeal partly allowed. *******