Judgment Virender Singh, J. 1. Chhota Ram of Shankar Dass, resident of Village Kurali, aged 55 years (age taken from the charge sheet) stands convicted for an offence punishable under Section 304 Part II of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of 7 years. However, Ram Murti, another co-accused stands acquitted. 2. Briefly the case of the protection is that on May 5, 1988 at about 10.30 p.m. Jai Chand, since deceased in a drunken condition came to the hotel of the appellant and his brother Ram Murti (since acquitted) and asked for meals. The appellant and his brother told him in so many words that there was no flour left for him and it was just sufficient for their meals. Jai Chand got angry and started grappling with the appellant and his brother. It is then alleged that the appellant brought two Dandas and gave danda blows to Jai Chand. Thereafter his brother Ram Murti also brought a danda from the saw machine and gave blows on legs of Jai Chand. Jai Chand fell down. Surinder Kumar (PW2), who runs a shop at a distance of 20 Karams from the shop of the appellant, witnessed this occurrence, closed his shop and went to his house. On the next day i.e. May 6, 1988, Surinder Kumar PW2 made his statement (Exhibit PE) to ASI Banarsi Dass (PW7), on the basis of which formal First Information Report (Exhibit PF) under Section 304 read with Section 34 of the Indian Penal Code was recorded by Sadhu Singh MHC. It is alleged that the occurrence was also witnessed by one Sham Lal (PW5), who had been declared hostile by the prosecution during the trial. 3. The appellant and his brother Ram Murti were charged for an offence punishable under Section 302 read with Section 34 IPC for committing the murder of Jai Chand. After conclusion of the trial, the learned Sessions Judge found Chhota Ram appellant guilty of the offence and convicted him under Section 304 Part II IPC instead of Section 302, read with Section 34 IPC. Ram Murti, co-accused stood acquitted. Aggrieved by the judgment of conviction and sentence, the appellant has preferred the present appeal. However, the State has not come up in appeal against the acquittal of Ram Murti. 4. I have heard Mr. Ram Murti, co-accused stood acquitted. Aggrieved by the judgment of conviction and sentence, the appellant has preferred the present appeal. However, the State has not come up in appeal against the acquittal of Ram Murti. 4. I have heard Mr. Bipan Ghai, Advocate, learned Counsel for the appellant and Mr. Rajeev Sharma, learned Assistant Advocate General, Punjab. I have also gone through the evidence and the lower Court record very minutely. 5. Mr. Ghai has argued that Surinder Kumar (PW2), on whose evidence the case of the prosecution is hinging, had in fact not seen the occurrence and he had come forward to depose against the appellant because of the strained relations between the two, as proved by Suresh Kumar (DW1) and Nihal Chand (PW2). Advancing his arguments, he further contended that the statement of Surinder Kumar otherwise loses its weight in the light of considerable unexplained delay in lodging the First Information Report. The occurrence took place on May 5, 1988 at about 10-30 p.m. and the matter was reported to the police on 5th of May, 1988 at about 8.15 a.m. According to Mr. Ghai, the explanation given by Surinder Kumar (PW2) is not trustworthy. He pointed out that in his statement, Surinder Kumar says that after Jai Chand had fallen down, he closed his shop, went to his house and came back to his shop the next day at 6.30 a.m. and found that Jai Chand was lying dead. Mr. Ghai argues that this explanation, if tested on the touchstone of human probability, does not appeal at all. In the same breath, Mr. Ghai submits that in case the statement of Surinder Kumar is discarded, no weightage can be given to the statement of Sham Lal (PW5), the another eye-witness, who was declared hostile but was believed by the trial Court qua some part of the occurrence. Mr. Ghai contends that the impugned judgment is, thus liable to be set aside and the appellant deserves to be acquitted. 6. On the other hand, the learned Assistant Advocate General appearing for the State of Punjab has seriously argued that there is no reason to disbelieve Surinder Kumar (PW2), who had no motive to implicate the appellant and his brother Ram Murti and the delay which has crept up in lodging the FIR, would not be fatal to the prosecution case in any manner. He further contended that Sham Lal, even if declared hostile, has also rendered some help to advance the case of the protection. 7. I am in argument with the submissions made by Mr. Ghai, learned Counsel for the appellant and am of the view that for the reasons mentioned hereinafter, the protection has not been able to prove its case against the appellant beyond reasonable doubt. 8. Admittedly, the statement of Surinder Kumar (PW2) had been recorded at 8.00 a.m. by Banarsi Dass ASI (PW7) on May 6, 1988 at the turning of the police station. The explanation furnished by Surinder Kumar when stepped into the witness box as PW2 is not at all convincing and appealing. The exactly words in this regard deposed by him in examination-in-chief are : "Jai Chand fell down. After that I closed my shop and went to my house. Sham Lal had come 2/3 minutes before start of the quarrel. I came to my shop at 6.30 a.m. next day and found Jai Chand lying dead. At that time, the accused were not present at the spot. When I was going to lodge the report with the police at police station, police met me on the turning of Market Committee. I made by statement Exhibit PE." 9. Besides this, Surinder Kumar has also been confronted in his cross-examination with the deposition made in examination-in-chief on material points in so much so that he made an improvement about the electric light near the spot. It is pertinent to mention here that according to the rought site plan and the scaled site plan, the dead body of Jai Chand is shown lying in a vacant place at a distance of about 18 feet from the shop of Surinder Kumar. There is no light shown anywhere. Another significant fact which is noticeable in this case is that the deceased Jai Chand received as many as 8 injuries on his person, covering different parts of the body. Mr. Kultar Singh (PW1), who conducted the post-mortem examination on the dead body of Jai Chand, found the following injuries : 1. Lacerated wound 1 x 1.5 cm on the right temporal region on the head. On dissection, haematoma in the scalp under the wound, about 4 x 3 cms was present. 2. Bruise 2 x 1 cm oval in shape, on the right eye brow. 3. Lacerated wound 1 x 1.5 cm on the right temporal region on the head. On dissection, haematoma in the scalp under the wound, about 4 x 3 cms was present. 2. Bruise 2 x 1 cm oval in shape, on the right eye brow. 3. Bruise 2.5 x 1 cm oval on left cheek near the eye. 4. Multiple small abrasions on left maxillary region. 5. Two abrasions about 1 cm. each on left buttock. 6. Abnormal configuration of lower jaw. On dissection jaw was broken into multiple pieces. 7. Bruise 0.5 cm, on the left edge of manubrium sterni. 8. Abrasion 5 cm x 0.75 cm on outer aspect of right thigh in the middle. 10. From the above narrated condition of the deceased, it can be safely said that he was attacked by the assailant/assailants at his/their leisure without being noticed by any body. From the conduct of Surinder Kumar (PW2), if scanned minutely in the light of the aforesaid injuries, it can be said very conveniently that he was not present at the time of alleged occurrence. Furthermore, if his statement is appreciated in the flash back of his strained relations with the appellant as stated by Suresh Kumar (DW1) and Nihal Chand (DW2), it speaks volumes of the false implication of the appellant and his brother. 11. Another fact, which cannot be lost sight of by this court, is that the participation of the appellant and his brother Ram Murti in the occurrence was inter-twinned and the segregation of the role of Ram Murti by the trial Court demolishes the case of the prosecution qua the present appellant as well. The story as set up by the prosecution has been disbelieved by the trial Court. By discarding the evidence of Surinder Kumar (PW2), the benefit of doubt has to be extended to the present appellant also. 12. It would be appropriate for me to comment upon the conduct of Sham Lal (PW5) also. Although he has been declared hostile and has not toed the line of Surinder Kumar (PW2), his statement also is not worthy of any credence. It is a well settled law that the statement of a hostile witness can also be taken into account qua any part, if it strengthens the case of the prosecution. Although he has been declared hostile and has not toed the line of Surinder Kumar (PW2), his statement also is not worthy of any credence. It is a well settled law that the statement of a hostile witness can also be taken into account qua any part, if it strengthens the case of the prosecution. But in the instant case, after examining the statement of Sham Lal (PW5), including his confrontations on many material points, it can be safely said that he too was not present at the spot at the time of alleged occurrence. 13. For the foregoing reasons, I find merits in this appeal and set aside the impugned judgment of conviction and sentence passed by the trial Court. Consequently, the appeal is allowed and the appellant is acquitted of the charge. Appeal allowed.