JUDGMENT 1. - This appeal is directed against the judgment dated 3.9.1996, passed by the Sessions Special Judge, SC/ST (prevention of Atrocities) Cases, Jaipur, in Sessions Case No. 30/95, convicting and sentencing the accused appellant Manjar alias Mohammad Sharif, under section 302 IPC, to suffer life imprisonment and a fine of Rs.1,000/- in default to further undergo three months simple imprisonment. 2. The prosecution story begins with a telephonic message passed by PW6 Mahesh Chand Sharma, the then Sub-Inspector of Police Station Ramganj, Jaipur, to Police Station, Adarsh Nagar, Jaipur City, Jaipur. This telephonic message recorded by PW7 Satya Prakash, the then Head Constable, in Rojnamcha Ex.P/19A. According to which Mahesh Chand, Sub-Inspector, informed there that accused appellant Manjar son of Ajju inflicted knife blow to Shri Lalla sent to S.M.S. Hospital, Jaipur for treatment. Thereafter, PW10 Bhagwati Prasad, Incharge, Police Station, Adarsh Nagar, Jaipur, reached S.M.S. Hospital, Jaipur. PW3 Abdul Gafoor, father of Vakil Ahmad alias Lalla (in short 'Lalla') submitted a written report Ex.P/3 on 9.12.1994 at about 11.50 a.m. to Shri Bhawati Prasad PW10 in S.M.S. Hospital, with the averments that his son Lalla, who used to run a horse-cart, on 7.12.1994, at about 11.30 a.m. was coming from Lal Kothi Sabji Mandi, Jaipur, with vegetables loaded in his cart, on the road near the Sophia School and Kachra Basti, the accused appellant stabbed him with knife in abdomen and ran-away. Police personnels from Police Station Ramganj got him admitted in the hospital and Lala is not is a position to speak and is on oxygen. On this report, formal FIR No.292/94 under Section 307 and 324 IPC was registered. Thereafter Lala died on 14.1.1995, in the hospital. After usual investigation, charge-sheet came to be filed against the accused appellant and his father Ajij alias Ajju, and trial commenced. Learned trial Judge framed charge under Section 302 IPC against the accused appellant Manjar and under Section 302 read 34 IPC against accused Abdul Ajij alias Ajju. Both the accused pleaded not guilty and claimed trial. During the trial, twenty witnesses were examined on behalf of the prosecution. The accused were then examined under Section 313 Cr.RC. Both the accused pleaded innocence. No defence witness was examined on behalf of the accused. 3. Both the accused pleaded not guilty and claimed trial. During the trial, twenty witnesses were examined on behalf of the prosecution. The accused were then examined under Section 313 Cr.RC. Both the accused pleaded innocence. No defence witness was examined on behalf of the accused. 3. After hearing the final submissions, the learned Special Judge, acquitted Abdul Ajij under Section 302 read with Section 34 IPC but convicted the accused appellant under Section 302 IPC and sentenced him as stated above. Hence the present appeal. 4. We have heard learned counsel for the parties and gone through the judgment and the entire evidence on record. Mr. Ravi Yadav, learned counsel for the appellant has argued that the trial court has based its judgment of conviction mainly upon the evidence of two eye witnesses i.e, PW5 Iqbal and PW8 Munna, but their names do not find place in the first information report Ex.P/3, which was lodged after a delay of three days and the statements of both these witnesses under Section 161 Cr.RC. were recorded after two months and further that they were closely related witnesses and thus no conviction could take place on the statements of such witnesses. It was further argued that PW10 Bhagwati Prasad, sub-inspector, reached S.M.S Hospital, on the date of incident i.e. 7.12.1994, but no FIR was lodged on that day or the next day and there is no reasonable explanation of this delay. According to learned counsel for the appellant, the offence under section 302 IPC was not proved beyond reasonable doubt. In the alternative, it was argued that since there was no pervious enmity between the accused appellant and the deceased, and only one knife blow was inflicted and Shri Lala died after 38 days in the hospital, therefore, no offence is made out under section 302 IPC. At the most, the act of the accused appellant comes under section 304 Part (II) IPC. 5. Per contra, Mr. Rajendra Yadav, learned Public Prosecutor and Mr. S.R. Surana, learned counsel for the complainant have supported the findings of the trial court. 6. Firstly, we shall consider the medical evidence. PW20 Dr. Dharmendra Sharma, Medical Jurist, S.M.S. hospital, Jaipur, examined the injuries of injured Lala on 7.12.1994 at about 1.30 p.m. and found (1) Incised stab wound of 2.5 cm x 1.5 cm x cavity deep on right size lateral aspect lower part, obliquely placed. 6. Firstly, we shall consider the medical evidence. PW20 Dr. Dharmendra Sharma, Medical Jurist, S.M.S. hospital, Jaipur, examined the injuries of injured Lala on 7.12.1994 at about 1.30 p.m. and found (1) Incised stab wound of 2.5 cm x 1.5 cm x cavity deep on right size lateral aspect lower part, obliquely placed. Another cut (stab wound) of sixe 1.5 cm x 1 cm x cavity deep commencing from the lower boarder of above mentioned injury with fresh bleeding present vide Ex.P/13. These injuries were caused by sharp weapon and duration was fresh and these injuries could be caused by single blow. Thereafter, Shri Lalla died on 14.1.1995. Hence post-mortem on the dead body of Shri Lala was conducted by PW12 Dr. R.L. Bansal, and PW17 Dr. Prem Narayan Mathur. It is stated by Dr. Bansal that post-mortem was conducted by Shri PN. Mathur in his presence, PW17 Dr. Prem Narayan Mathur, the then Medical Jurist S.M.S. Hospital, Jaipur, has proved the post-mortem Report Ex.P/10 and noted six injuries in all, out of which four injuries Nos.2, 3, 4 and 6 were caused on account of operation and remaining injuries tallied with Injury Report Ex.P/13. The cause of death was Peritonitis as a result of intra abdominal injury antemortem and self sufficient to cause death in ordinary course of nature. In cross-examination, he admitted that the death might have occurred due to infection also. 7. According to this medical evidence, the learned Sessions Judge had rightly come to this conclusion that Shri Lalla died on account of these injuries. Learned counsel for the appellant argued, that there is variance between medical and oral evidence regarding the number of injuries but on careful consideration of the medical evidence, there appears no variance in the same because both the injuries could be caused by one blow and according to oral evidence, the accused appellant caused only one knife blow. 8. The next important question arises for consideration is as to whether the injuries on the person of deceased Lalla were caused by the accused appellant ? 9. No doubt, the FIR Ex.P/3 was submitted on the third day of the occurrence and thus there was considerable delay. 10. Mr. Surana, learned counsel for the complainant argued that firstly there was no delay and secondly only on account of delay in lodging FIR no inference can be drawn that the complaint was false. 9. No doubt, the FIR Ex.P/3 was submitted on the third day of the occurrence and thus there was considerable delay. 10. Mr. Surana, learned counsel for the complainant argued that firstly there was no delay and secondly only on account of delay in lodging FIR no inference can be drawn that the complaint was false. In support of his arguments, Mr. Surana placed reliance on Kamel Singh v. State of M.P., (1995) 5 SCC 518 , wherein Hon'ble Supreme court held that mere delay in lodging FIR does not raise the inference that the complaint was false. Here in this case, it is important to mention that PW7 Satya Prakasah, the then Head Constable. Police Station Adarsh Nagar, Jaipur, while he was examined by this court under section 391 Cr.RC. deposed that he was on duty from 7 a.m. to 7 p.m. on 7.12.1994, and at about 11.50 a.m. Mahesh Chand. Sub- Inspector, Police Station Ramganj, Jaipur, informed on telephone that Manjar s/o Ajju had caused injury by knife to one Lalla s/o Abdul Gafoor, who had been sent to S.M.S. Hospital for treatment, PW7 Satya Prakash further stated that he recorded this information in Rojnamcha, which is Ex.P/19 in original and copy of the same is EX.P/19A. He has further stated that whatever information he received by telephone message was recorded by him in Rojnamcha and thereupon he informed Bhagwati Prasad sub-lnspector PW10 to reach the hospital and EX.P/19 was signed by Bhagwati Prasad also in his presence. Nothing adverse has come out in cross-examination of PW7 Satya Prakash. Therefore, the evidence of Satya Prakash has been rightly relied upon by the learned trial Judge and it leads to the conclusion that PW6 Mahesh Chand, sub-inspector got this information first and then he passed the same to the concerned Police Staion through PW7 Satya Prakash that accused Manjar had caused a knife blow to, Shri Lalla. Inspite of this clear information, no formal FIR was registered by PW10 Bhagwati Prasad the then Incharge Police Station Adarsh Nagar, Jaipur. Rather, he waited for two days and then got the written report Ex.P/3 lodged on 9.12.1994. It is also strange to note that PW6 Mahesh Chand Sharma also failed to record the information in Rojnamcha. Inspite of this clear information, no formal FIR was registered by PW10 Bhagwati Prasad the then Incharge Police Station Adarsh Nagar, Jaipur. Rather, he waited for two days and then got the written report Ex.P/3 lodged on 9.12.1994. It is also strange to note that PW6 Mahesh Chand Sharma also failed to record the information in Rojnamcha. Rather PW6 Mahesh Chand Sharma deposed that Lalla came to him at about 11.45 a.m. at Police Station and informed him that three four persons inflicted knife blows to him (Lalla) and thereafter Lala left the Police Station. The statement of PW6 Mahesh Chand Sharma is completely contrary to the statement of PW7 Satya Prakash, Head Constable, and on a close scrutiny, it appears that PW6 Mahesh Chand Sharma was an unreliable witness. The learned trial Judge has rightly observed that police officers in this case were inactive right from beginning and this observation of the learned trial court appears to be justified in view of the statements of PW6 Mahesh Chand Sharma and PW10 Bhagwati Prasad, the then In-charge, Police Station, Adarsh Nagar, Jaipur. Thus in view of the above discussion,delay in submitting the F.I.R does not create any doubt in the facts and circumstances of the present case. 11. Now we proceed to consider the other evidence. PW.3 Abdul Gafoor as stated above is father of deceased Shri Lala, and is not an eye-witness. He deposed that on receiving information, he went to S.M.S. Hospital, Jaipur., at about 1.00 p.m. on 7.12.1994, and his son Lalla narrated the incident to him. Thereafter, he submitted written report Ex.P3 In cross-examination, he stated that police came to the hospital at about 4 p.m. on the same day and he narrated the incident to the Police. He also disclosed the names of the witnesses but Police did not record their names and reasons are known to the Police. PW.4 Khalil has not supported the prosecution story, hence he has been declared hostile. PW.5 Iqbal is the brother of PW.3 Abdul Gafoor. He has stated that three horse-carts were coming from Lal Kothi Subji Mandi. The horse-cart driven by Lalla was infront of other two horse carts. He himself was in the second one and PW.8 Munna was in his own horse cart. PW.5 Iqbal is the brother of PW.3 Abdul Gafoor. He has stated that three horse-carts were coming from Lal Kothi Subji Mandi. The horse-cart driven by Lalla was infront of other two horse carts. He himself was in the second one and PW.8 Munna was in his own horse cart. On the way, the accused Ajju caught hold of Lalla and accused Manjar took a knife and gave one blow in the abdomen and ran away. He and Munna chased them but the accused escaped. Thereafter they returned to the place of occurrence and in the meantime one scooter driver had already taken the injured to the hostile. It is also stated that Chuttan (RW.11) met them and they asked him to inform the father of injured. In cross-examination, he admitted that Lalla was his nephew and Munna, RW. 8 is his brother-in-law. He also stated that the place of occurrence is a thorough fare and people were coming and going and it was a populated area. RW. 8 Munna, has fully supported the statement of RW.5 Iqbal. In cross-examination, he stated that Police did not record his statement and he also reached hospital at about 2.30 p.m. on the same day. 12. Learned counsel for the accused appellant has rightly argued that names of these two witnesses have not been mentioned in Ex.R3. They are close relatives of the complainant party and their statements under Section 161 Cr.RC. were recorded on 10.2.1995 i.e. after more than two months. Mr. Surana, learned counsel for the complainant argued that only on these counts the statements of these witnesses could not be discarded as nothing adverse has come out in cross-examination and their presence on the spot is well proved and their statements find corroboration from the statements of RW. 11 Chuttan and RW, 19 Noor Mohammad. Learned counsel has placed reliance on Ganesh Lal v. State of Maharashtra, (1992) 3 SCC 106 and Ramesh v. State of M.P. and others, (2000) 1 SCC 243 . In Ganesh Lal's case (supra) there was delay of two and half months in recording the statement under Section 161 Cr.RC. It was held by Hon'ble Supreme Court that the delay in recording statement of a witness does not invariably render the testimony of the witness doubtful though such evidence has to be scanned carefully and each case has to be considered on its own facts. It was held by Hon'ble Supreme Court that the delay in recording statement of a witness does not invariably render the testimony of the witness doubtful though such evidence has to be scanned carefully and each case has to be considered on its own facts. Similar view has been taken by Hon'ble Supreme Court in Ramesh v. State of M.R and others (supra). Thus, in view of the judgments of Supreme Court, the testimony of PW 5 Iqbal and PW 8 Munna cannot be discarded only on this ground that their statements were recorded by Police after a delay of more than two months. 13. Regarding relatives and interested witnesses, Hon'ble Supreme Court in Arjun and Others v. State of Rajasthan, (1994) 3 Crimes 383 , held that the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused person were on enemical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinise the evidence with more than ordinary care. It was held as under:- " It is needless to emphasise that enmity is a double edged sword which can cut both ways. However, the facts remains that whether the prosecution witnesses are close relatives of the deceased victim or on enemical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on enemical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on enemical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinise the evidence with more than ordinary care which precaution has already been taken by the two courts below while analyzing and accepting the evidence." 14. Similar view has been taken by Hon'ble Supreme Court in Shivnath Singh and Another v. State of U.P., (1994) 2 SCC 563 , wherein it was held that evidence cannot be discarded on the ground that the witnesses are close relations of deceased but such evidence should be subjected to a closer scrutiny. 15. in Rana Pratap v. State of Haryana, AIR 1983 SC 680 , Hon'ble Supreme Court held that in a murder trial witnesses cannot be viewed with suspicion on ground that they are mere 'chance' witnesses. It was further held that the evidence of witnesses cannot be discarded on the ground that they did not react in a particular manner. 16. Keeping in view the legal position laid by Hon'ble Supreme Court, it comes out that the statements of these two witnesses i.e. RW.5 Iqbal and RW.8 Munna cannot be discarded only on these counts that their names do not find place in the FIR; their Police statements were recorded after a delay of two months and they are relatives as well as chance witnesses. On a close scrutiny of the statements of these two witnesses it comes out that the learned trial judge has rightly believed upon the statements of these two witnesses as nothing adverse to effect their testimony has come out in their cross-examination. It is also important to mention here that statement of PW 5 and PW 8 find corroboration with the statement of PW 11 Chuttan who has stated that he was standing infront of Fire Brigade i.e. near the place of occurrence, and at that time Munna and Iqbal came there and told him that Lala had been stabbed and he was asked to inform the father of Lala and as such he informed Abdul Gafoor, father of Lala. The prosecution case also finds support from the statements of PW 19 Noor Mohammed who has stated that he saw two persons quarreling with each other near Sophia School and he recognised accused Manjar and tried to intervene. It is also stated by him that accused Manjar was quarreling with Lala. He has further stated that Immam Bux and Ibrahim also came there. The prosecution also examined PW 15 Immamudin and PW 16 Ibrahim but both of them had not supported the prosecution case. 17. The another important evidence is in the form of dying declaration Ex.P. 18, which is the statement of deceased Lala recorded under Section 161 Cr.P.C. on 10.12.94. PW 10 Bhagwati Prasad the then Incharge Police Station Adarsh Nagar has stated in his cross-examination that vide Ex.R 17 doctor informed him on 10.12.94 that Lala is fit for statement and thereafter he recorded the statement of Lala on 10.12.94. He has further stated that Ex. R 18 statement was recorded as stated by Lala. On perusal of statement Ex:R 18 it appears that Lala had narrated all the important facts leading to this incident and the incident itself that in the morning on 7.12.94 the accused Manjar lifted a basket full of vegetables from his horse- cart and put the same in his own horse-cart, upon which a quarrel took place and he slapped Manjar. It is further stated that thereafter father of Manjar got this dispute compromised on the same day and he was coming by his horse-cart and accused Manjar was also sitting in his horse-cart and on the way Manjar caused a knife blow and ran away. Thus all the crucial facts are found in the statement Ex.R 18. Since Shri Lala died thereafter it was considered as a dying declaration by the learned trial Judge. Mr. Surana has placed reliance on State of Maharashtra v. Krishnamurti Laxmipati Naidu, AIR 1981 SC 617 wherein Hon'ble Supreme Court held that where the crucial facts were found in the dying declaration in which there was a mention that the stabbing of the deceased by the accused was preceded by abusing of deceased's son by the accused, to which the deceased objected, the same held could not be ignored merely on the ground that it did not include any statement as to how the accused had received the injuries. In Koli Chuni Lal Savji and Another v. State of Gujarat, 2000 (1) UJ 437 (SC) Hon'ble Supreme Court has held that conviction can be based on dying declaration. In view of the judgments of the Hon'ble Supreme Court this contention also appears to be acceptable that the prosecution case finds support from Ex. R 18 the dying declaration also. Therefore, on the basis of the above discussion, it is proved beyond doubt that the accused appellant Manjar caused this injury to the deceased Lala. 18. Next point arises as to what offence is made out ? Learned counsel for the appellant has mainly argued that there was no enemity between the deceased Lala and accused appellant and thus there was no intention of causing death. It is also argued that only one blow was given and Accused appellant did not act in a cruel or unusual manner. It was further argued that Lala died after 38 (thirty eight) days and in view of the evidence given by RW. 17 Dr. Prem Narayan Mathur, the possibility of his death could not be ruled out due to infection after the operation. He has placed reliance upon Mohd. Sazid alias Sazid v. State of Rajasthan, reported in 2001 (3) W.L.C. 97 . 19. Learned Public Prosecutor and learned counsel for the complainant Mr. Surana have supported the judgment of the trial court convicting the accused appellant under Section 302 IPC. We have given our thoughtful consideration to above contentions. 20. In the present case, admittedly the accused appellant inflicted single blow and did not repeat the same. It is also found that the accused appellant did not act in a cruel or unusual manner and admittedly the injured Lala died after 38 days of the incident in the hospital. PW. 17 Dr. Prem Narayan Mathur has admitted in cross- examination that the death occurred due to infection in peritoneum and possibility, though less, can not be ruled out that such infection may take place after operation. There was no enmity between the deceased and the accused except the quarrel on the date of incident in the morning. In K. Rama Krishnan Unnithan v. State of Kerala, 1999 Cr.L.R. (SC) 206 , while dealing with a case of single injury, Hon. Supreme Court set-aside the conviction under Section 302 IPC and instead convicted the accused under Section 304 Part-II. In K. Rama Krishnan Unnithan v. State of Kerala, 1999 Cr.L.R. (SC) 206 , while dealing with a case of single injury, Hon. Supreme Court set-aside the conviction under Section 302 IPC and instead convicted the accused under Section 304 Part-II. The facts of that case are similar to that of the present case. In that case also there was no previous enmity between the accused and the deceased and after some altercation with the deceased, the accused inflicted a singly blow on the abdomen of the deceased, which proved fatal and the deceased died of a solitary blow. In the present case, the deceased Lala died after 38 days as stated earlier and there was no previous enemity between the deceased and the accused appellant. Similar view has been taken by Division Bench of this Court in the case of Mohd. Sazid alias Sazid (supra) and thus in the facts and circumstances of the case, we are of the opinion that the accused appellant neither intended to cause death of the deceased nor had the knowledge that the injury he has inflicted on the deceased is such that it must in all probability cause death and therefore, we hold that the accused did not commit offence under Section 302 IPC but under Section 304 part-II IPC. The accused appellant is in jail for last more than six years and seven months and 16 days and keeping in view the age of accused and the circumstances in which the incident took place, we deem it proper that the ends of justice would be met, if the accused appellant is sentenced to the period already undergone by him. 21. In the result, we allow the appeal in part, set-aside the conviction of the appellant under Section 302 IPC and instead convict him under Section 304 Part II IPC and sentence him to the period already undergone by him and impose a fine of rupees fifteen thousand upon him, in default to further undergo rigorous imprisonment of six months. One month's time is granted to the accused appellant Manjar @ Mohammad Sharif s/o Ajij @ Ajju to deposit the fine with the Dy. Registrar (Judl.) of this court. One month's time is granted to the accused appellant Manjar @ Mohammad Sharif s/o Ajij @ Ajju to deposit the fine with the Dy. Registrar (Judl.) of this court. The entire amount of fine if deposited, shall be paid to the wife of the deceased Vakil Ahmad alias Lala in form of three years F.D.R. If fine is not deposited in time in that event, warrant of arrest shall be issued against the accused appellant by the learned trial Judge. The Dy. Registrar (Judicial) shall now post the case before him on 10th of December 2001, in order to ensure the compliance of this order.Appeal partly allowed. *******