JUDGMENT 1. As many as five accused were Indicted before the learned Special I Judge, Alwar in Sessions Case No. 24/96 for having committed murder of Jai Singh Babariya. The learned Judge vide judgment dated March 2, 1998 convicted the appellants Moharu @ Mohar Singh and Jaila as under:- Moharu Under Section 302 IPC to undergo imprisonment for life and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo rigorous imprisonment for two years. Jaila Under Section 3(1)(x) of the Scheduled Caste/Schedule Tribes (Prevention of Atrocities) Act, 1989 to undergo six months' rigorous imprisonment and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo rigorous imprisonment for 15 days. 2. Co-accused Rameshwariya, Sholiya and Mam Chand were however, acquitted. Appellants Moharu and Jaiiya have impugned the aforequoted is nding of the learned trial judge in the instant appeal. 3. Police Station Bansur, District Alwar commenced investigation under Sections 302 IPC and 3(2)(5) of the Scheduled Caste/Schedule Tribes (Prevention of Atrocities) Act, 1989 on the basis of written report Ex.P. 1 submitted by informant Lal Chand PW 1 on January 17, 1996 wherein it was stated that on January 16. 1996 around 12.00 Noon or 1.00 PM. When his brother Jai Singh was at his field, Rameshwariya, Mohanya, Sofiya came over there and inflicted injuries on the person of Jai Singh with lathies and farsies. The occurrence had been witnesses by Anaro and Chameli. Jai Singh was taken to Hospital Bansur Thereafter, forwarded to Kotputali where he died on the next day around 5 A.M. On completion of investigation, charge sheet was filed against five accused persons. In due course, the case came up before the learned Special Judge-Additional Sessions Judge, Alwar. Charges under Sections 147, 323, 323/149, 302/149 IPC and under Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, 1989 were framed. The accused denied the charges and claimed trial. The prosecution, in support of its case examined as many as witnesses In their explanation under Section 313 Cr PC. the accused claimed innocence. No witness in defence was, however, examined. Learned trial judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. 4. We have heard the submissions advanced before us and carefully scanned the material on record. 5. the accused claimed innocence. No witness in defence was, however, examined. Learned trial judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. 4. We have heard the submissions advanced before us and carefully scanned the material on record. 5. Super structure of the prosecution is based on the testimony of of Chameli PW 4, Anaro PW 5 and Nathi Devi PW 6. Testimony of these witnesses has been supported by Pooran Mal, who was SHO, Police Station Bansur on the relevant date and investigated the case. 6. In order to establish that death of Jai Singh was homicidal, the prosecution produced Dr. Birbal Yadav, PW 8, who examined the injuries of Jai Sing and after his death conducted autopsy on the dead body. As per the injury report Ex.P 10, Jai Singh sustained the following four injuries: 1. Diffused swelling convening the top of head left parietal, temporal and portal region with bleeding through left ear. 2. 2 lacerated wound of the size 1 1/2 X 1/4cm X bone deep each, 1 cm apart from each other on occipital region left to mid line. 3. 2 lacerated wound of the size of 1 1/2 X 1/4cm X muscle deep, 1 cm apart from each other on antiro medial aspect of lower ⅓ of right leg. 4. Lacerated wound 1- ⅓ X 1/4cm X muscle deep of antiro medial aspect of middle ⅓ of right leg. 7. As per post mortem report Ex.P. 11 the cause of death was comma due to head injury. 8. Although Lal Chand PW 1, Ram Singh PW 2 have been examined by prosecution as eye-witnesses of the occurrence but the learned trial judge did not place any reliance on their testimony and observed that they did not see the occurrence from their eyes. 9. Before analysing testimony of Chameli PW 4, Anaro PW 5 and Nathi Devi PW 6 it will be appropriate at this juncture to refer to the entries incorporated in Rojnamcha Aam at No. 564 (5.05 PM.) Ex.D. 6 and another entry Ex.D. 7 recorded at 7.15 P.M. A look at the entries of Ex.D. 6 demonstrates that it was in the hand writing of Roshan Lal Head Constable in whose presence one Babariya woman came weeping at the Police Station and informed that her husband was given beating by Gurjars. She was persuaded to lodge the report but she declined. Roshan Lal Head Constable then accompanied her along with constable No. 971 and proceeded to the place of occurrence in the jeep. 10. Entries incorporated in Ex.D. 7 show that on reaching the place of occurrence, Jai Singh was found in an unconscious state. He along with his mother and wife then taken to hospital at Bansur where Jai Singh was given first aid. Jai Singh then referred to BDM Hospital, Kotputali. Both the women neither gave information about the incident nor lodged any report. 11. Coming to the testimony of Chameli PW 4, the wife of deceased, we find that she implicated appellants Moharu and Jaila along with Soliya, Rameshwariya and Mam Chand and stated that all of them came to field and Moharu inflicted Tarsi blow on the head of Jai Singh while Mam Chand inflicted blow with axe on his foot, When she begged not to beat her husband. Soliya gave lathi blow on her both hands. Rameshwariya also gave beating to her. Jailya inflicted injuries with tails on various parts of body of Jai Singh. She then went to Police Station Bansur and gave information about the incident. Nayab Thanedar then accompanied her and Jai Singh was taken to Hospital at Bansur from where he was referred to Hospital at Kotputali In the early morning at about 4.00-5.00 A.M. Jai Singh died In her cross-examination, she stated that at Bansur Police Station, she disclosed the names of the assailants to Nayab Thanedar. Anaro PW 5 also stated that she had disclosed the names of four assailants when police came to the place of occurrence. She dis-owned various parts of her police statement Ex.D. 4. She also stated that Lal Chand was not present as he was working in the field of Muslims. Nathi Devi PW 6 also repeated the version narrated by Chameli. 12. Pooran Mal PW 12, who deposed that at the instance of Moharu, he got recovered one lathi. In his cross-examination, he stated that during investigation he came to know that Roshan Lai Head Constable had gone to the place of occurrence on receiving information from Chameli and Roshan Lal informed him that Chameli and Nathi Devi refused to register the report. 13. We also find from the statement of Dr. Eirbal Yadav the he examined the injuries sustained by Chameli on. 13. We also find from the statement of Dr. Eirbal Yadav the he examined the injuries sustained by Chameli on. January 17, 1996 at 10.00 A.M. and Chameli sustained one bruise 2 X cm on right wrist as per injury report Ex.P 12. 14. Fact situation that emerges from the material on record may be summarised as under:- (i) The written report Ex.P 1 was submitted on January 17, 1996 at 8.00 A.M. with the Police Station, Bansur by Lal Chand PW 1 (ii) Chameli PW 4 had gone to Police Station Bansur at 5.5 PM. and informed Roshan Lal Head Constable that Gurlars had beaten Jai Singh. Chameli declined to lodge report: (iii) Head Constable Roshan Lal went to the place of occurrence where he had a talk with Chameli and Smt. Nathi Devi but names of assailants were not disclosed by them to him and they again declined to lodge the report; (iv) As per the testimony of eye-witnesses, appellant Moharu inflicted blow on the head of Jai Singh with farsi but from the injury report and post mortem report of Jai Singh, no injury from sharp edged weapon was found on his head; (v) Investigating Officer Pooran mal got recovered one lathi at the instance of Moharu; (vi) In the written report Ex.P. 1, it was not stated that any assailant inflicted injury on the person of Chameli; Even Chameli did not narrate this fact to Roshan Lai head Constable that she was given beating by assailants: (vii) Roshan Lal Head Constable was not examined by the prosecution 15. It is rather strange and inexplicable that if Chameli and Nathi had seen the occurrence then why the names of assailants did not find place in trte Rojnamcha. Only Roshan Lal Head Constable could be able to say as to what was the real truth. Entries in the Rojnamcha are inconsistent with the statement of Chameli at the trial wherein she deposed that she had disclosed the names of the assailants to Naib-Thanedar. Deposition of Chameli and Nathi appeared to be false in view of the entries Ex.D. 6 and Ex.D. 7 and we etc are of the opinion that Chameli and Nathi Bai did not see the incident that is why the names of the assailants did not find place in the Rojnamchan. 16. Deposition of Chameli and Nathi appeared to be false in view of the entries Ex.D. 6 and Ex.D. 7 and we etc are of the opinion that Chameli and Nathi Bai did not see the incident that is why the names of the assailants did not find place in the Rojnamchan. 16. Learned PP Vociferously canvassed that Chameli sustained injuries during the course of the incident, therefore, even if there are embellishment and inconsistencies in her statement, reliance can be placed on her testimony as her presence at the place of occurrence was most natural. We are not impressed by this submission in view of the fact that in the Rojnamcha Aam she did not disclose this fact to the police that she also sustained injuries. Ben this fact was not stated in the FIR. It appears to us that the occurrence had taken place when nobody was near to the site and on the basis of so suspicion and after due deliberations the delayed FIR came to be lodged on January 17, 1996. The prosecution has not properly explained the delay in lodging the FIR. We therefore, hold that Chameli PW 4, Anaro PW 5 and Nathi Devi PW 6 had not seen the occurrence and they reached at the spot at a later stage. 17. In view what we have discussed hereinabove, we allow the appeal and set aside the conviction of appellant Moharu @ Mohar Singh under Section 302 IPC and appellant Jaila under Section 3(1)(x) of the Scheduled Caste/Schedule Tribes (Prevention of Atrocities) Act. Appellant Jaila is on bail. He need not to surrender. His bail bonds are cancelled. Appellant Moharu @ Mohar Singh is in jail, he shall be set at liberty forthwith if not to required any other case.Appeal Allowed - Conviction Set Aside. *******