JUDGMENT M.R. Verma. J. - This appeal is directed against the judgment dated 17.12.2001 passed by the learned Sessions Judge, Mandi, whereby the convicted appellant (hereafter referred to as the accused) has been convicted under section 304-11 of the Indian penal Code and has been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 20,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one year. 2. The case of the prosecution against the accused, as revealed in the charge sheet, is that on 21.5.1997, a telephonic message was received at police station, Sarkaghat, that Chamaru Ram (since deceased) was admitted in the hospital in injured condition. On receipt of this information, HC Tej Singh (pw-9) proceeded to the hospital and moved an application to the Medical Officer concerned to find out whether Chamaru Ram was capable of making a statement. The medical officer certified that Chamaru Ram was incapable of making the statement. Pw-9 then recorded statement of pw-1 Damodri Devi Ex. Pw-9/A. Thereafter, Chamaru Ram was referred to Zonal Hospital, Mandi, on 21.5.1997 and to Indira Gandhi Medical College, Shimla, on 23.5.1997. On 25.5..1997, at about 12. O Clock, he died. After his death, statement of pw-1 Ext. Pw-1/A was recorded on 26.5.1997 on the basis of which FIR Ext. pw-11/A was recorded at police station, Sarkaghat. In the said statement Ext. pw-1/A, p[w-1 disclosed that on 19.5.1997 at about 10 or 11 P.M., Gayaharu (Pw-7) and Brikam Singh (pw-8)l, her brother-in-laws, were quarreling. On hearing the noise, Chamaru Ram went to defuse the quarrel. In the meanwhile, the accused and one Rupnu also came there. They tried to separate the quarrelling parties and in the process, accused gave a danda blow on the head of Chamaru Ram, who fell unconscious. The deceased was removed to his house where he started vomiting thereafter was removed to the hospital. During the course of investigation, it was found that there was some land dispute between accused and Brikam Ram (pw-8) and at the time of the quarrel on the spot, accused intended to give danda blow to pw-3 but because of the darkness, he hit Chamaru Ram on the head and said Rupnu also pounced upon Chamaru Ram. During the course of investigation, it was found that there was some land dispute between accused and Brikam Ram (pw-8) and at the time of the quarrel on the spot, accused intended to give danda blow to pw-3 but because of the darkness, he hit Chamaru Ram on the head and said Rupnu also pounced upon Chamaru Ram. On conducting the post mortem of dead body of Chamaru Ram, the cause of his death was found asphyxia as a result of aspiration of gestic contents., after sustaining the head injury. During the course of investigation, the police also took in possession the MLC Ext. pw-8/B issued by Dr. S.P. Samnol (pw-8). The accused made a disclosure statement Ext. pw-6/A and as a consequence thereof, got a danda recovered which was taken in possession by the police vide memo Ext. Pw-5/A. Said Rupnu also produced a danda to the police which was taken in possession vide memo Ext. pw-11/C. On the basis of the material colleted during investigation, the officer incharge, police station, Sarkaghat submitted a charge sheet against the accused and said Rupnu under section 304/34 of the Indian Penal Code. 3. On receipt of the case by committal, the learned Sessions Judge, Mandi, framed a charge against the accused under section 304-11 of the Indian Penal Code, however, discharged said Rupnu. 4. To prove the charge" against the accused, prosecution examined 13 witnesses. Statement of the accused under section 313 Cr.P.C. was recorded wherein he denied the prosecution cases a whole and claimed that Brikam Ram wanted to inflict injury on the person of Gayaharu Ram, but inadvertently, it hit Chamaru Ram. The accused led defence and examined Choli Ram (Dw-10 and Relu Ram (Dw-2). On the basis of the material on record, learned Sessions Judge held the accused guilty and convicted and sentenced him as aforesaid. Hence this appeal. 5. I have heard the learned counsel for the accused and the learned Assistant Advocate General for the state and have also gone through the records. 6. Be it stated at the very outset that as per the charge-sheet submitted by the police, the accused alone was not responsible for the death of the deceased but even Rupnu Ram had some part to play in the acts resulting in the death of the deceased. 6. Be it stated at the very outset that as per the charge-sheet submitted by the police, the accused alone was not responsible for the death of the deceased but even Rupnu Ram had some part to play in the acts resulting in the death of the deceased. These submissions in the police charge-sheet do not appear to be unfounded but find support from the contents of statement of pw-1 Ext. Pw-9/A which contains the first version about the occurrence as recorded by HC Tej Singh (pw-9). The relevant part of Ext. Pw-9/A reads that the deceased sustained injury by the Danda blow given by the accused and his nephew (Rupnu) also gave beating to the deceased and because of the injuries caused by both of them, the deceased fell unconscious. Thus, the initial version about the occurrence was not that the accused alone had given Danda blow to the deceased but even Rupnu had caused injuries to him. 7. To support the version that even Rupnu was having danda with him and he took part in the beating, the police during investigation recovered a Danda measuring 37" having the dimension of 3" vide memo. Ext. pw-11/C on production by said Rapnu. This version has been given a complete go- by the prosecution witnesses at the time of their statements in the court. Pw-1 in her cross-examination had admitted that she had produced three Dandas Exts. accused near the door of her house and she had kept the inside. According to her, Dandas Exts. P-2 and p-3 were with Gholi and Rupnu. She could not deny the suggestion that the Dandas Exts. P-2 and p-3 were in the hands of Hari Singh, Gayaharu and Brikam. However, according to her, all the tern were armed with Dandas. On contrary, Danda the alleged weapon of offence. According to the prosecution., was recovered on the basis of the disclosure statement of the accused Ext.pw-6/A vide memo. Ext. Pw-5/A. In so far as the recoveries of Dandas by the investigating agency are concerned, only two Dandas were recovered. One on production by Rupnu and another at the instance of the accused. It is not known as to how the third Danda which was produced in evidence, was recovered. If statement of pw-1 is believed, x then all these Dandas wee produced by her as she has clearly stated.! One on production by Rupnu and another at the instance of the accused. It is not known as to how the third Danda which was produced in evidence, was recovered. If statement of pw-1 is believed, x then all these Dandas wee produced by her as she has clearly stated.! Thus, a grave doubt ids created about the fairness of the investigation as also about the prosecution version. 8. It is the case of the prosecution itself that the occurrence took place at midnight and it was dark and it is so admitted by pw-3 Brikam Ram. According to the prosecution, it was because of the darkness that the Danda below given by the accused with the intention of hitting Brikam (pw-3), hit the head of the deceased. There is no explanation offered by any of the witnesses as to how in such darkness where not less than five persons armed with Dandas were fighting, the members of the quarrelling groups could be seen and j identified while hitting one or the other of them. There is no explanation I that there was any source of light because of which it could be properly seen as to what part was being played by such of the members of the quarrelling parties. This also raises grave doubt about the reliability and trustworthiness of the statements of the prosecution witnesses when they state that the fatal injury was caused to the deceased by the accused. 9. Pw-2 Hari Singh, his father and other family members are, admittedly, not on speaking and visiting terms with the accused. In the quarrel his father was also assaulted and he and his brother were also hit but he has no reason to state as to why he did not report the occurrence to the police. 10. Pw-3 also, admittedly was hit in the quarrel but he had also not reported the occurrence to the police. He is having land dispute with the accused. Thus, the statement of both these alleged eye-witnesses of the occurrence are not above suspicion, hence not reliable and trustworthy. 11. Pw-7 Gayaharu Ram, who is another eye witness of the occurrence, has not supported the prosecution version. According to him, it was Brikam (pw-3) who was beating him and hit him with Danda but the blow fell on the head of Chamaru. 11. Pw-7 Gayaharu Ram, who is another eye witness of the occurrence, has not supported the prosecution version. According to him, it was Brikam (pw-3) who was beating him and hit him with Danda but the blow fell on the head of Chamaru. There is nothing in the cross-examination of this witness on the basis of which it may be said that he is not making a true statement. It is more so when the consistent defence pf the accused had been that in fact it was brikam Ram of the accused had been that in fact it was Brikam Ram pw-3) who wanted to inflict Darida1 blow on Gayaharu Ram but inadvertently hit Chamaru Ram. 12. Gholi Ram (Dw-1) whose presence on the spot at the time of the occurrence is not disputed, has also supported the version that in fact Brikam wanted to hit Gayaharu Ram but the Danda blow given by him hit the deceased. 13. Thus, the evidence led by the prosecution ton prove the charge against the accused is not cogent, consistent, reliable and trustworthy. 14. It is admitted case of the prosecution that the occurrence took place around midnight of the night intervening 19th/20th of may, 1997. However, neither the wife of the deceased (pw-1) nor anyone from the place of occurrence reported the mater to the police at any point of time. It was on admission of the deceased in the hospital on 21.5.1997 at 12.00 noon that the doctor concerned telephonically intimated the police about the admission of the deceased in the hospital in injured condition. Thus, the matter came to the notice of the police after about 36 hours of the occurrence. It was thereafter that the statement of pw-1 Ext. Pwe-9/A was recorded wherein she attributed the cause of, her husband becoming, unconscious to the injuries caused to him by the accused and Rupnu. Pw-1 had though stated that being an illiterate woman and waiting for her husband to revive, she could not report the matter to the police, however, such an explanation has not been given by her at the time of making of the statement Ext. pw-9/A or in the statement Ext. Pw-1a on the basis of which the FIR had been recorded. pw-9/A or in the statement Ext. Pw-1a on the basis of which the FIR had been recorded. The explanation given by her is far from being satisfactory and it appears, in the facts and circumstances of the case, that the said statements Ext. Pw-9/A and Ext. pw-1/A had been made by her after deliberations and consultation. Thus, the unexplained delay in lodging the FIR. About the occurrence is also fatal to the prosecution. 15. The above discussion leads me to the conclusion that the evidence led by the prosecution is incapable of proving the charge against the accused. Therefore, the impugned conviction of and sentence awarded to the accused cannot be sustained and are liable to be set aside. 16. As a result, this appeal is allowed and the impugned conviction of and sentence awarded to the accused are set aside. 17. The accused is in custody undergoing the sentence of imprisonment awarded to him. He be set at liberty forthwith unless required to be detained under any other process of law. The fine, if recovered, be refunded to him. -