M. CHAUDHARY, J. ( 1 ) THIS is a jail appeal filed by accused appellant Jag Narain sharma from Judgment and order dated 21st of November 2000 passed by XIV Additional sessions Judge Allahabad in Sessions trial no. 695 of 1996, State v. Jag Narayan, convicting the accused appellant under Section 302, IPC and sentencing him to imprisonment for life and a fine of Rs. 5000. 00 (Rupees five thousand) thereunder. ( 2 ) CO-ACCUSED Laxman Sharma was tried on a charge under Section 120-B, IPC but he was held not guilty of the charge levelled against him and acquitted. ( 3 ) BRIEF facts giving rise to this appeal are that on 15th of January, 1996 Durga prasad Singh the village Pradhan lodged an fir (Ext. Ka-1) at police station Koraon District allahabad alleging that at about 4. 00 p. m. on 14th of January 1996 Jag Narayan sharma committed the murder of his step brother Krishna Sharma aged about 12 years by giving him axe blows; that on hearing the hue and cry he along with Ram ayodhya and Visheshwar Singh rushed to the scene of occurrence and sighting them jag Narayan Sharma fled away holding the axe in his hand. He also mentioned in the fir that Laxman Sharma, father of the deceased was instrumental in getting him murdered. He also mentioned in the FIR that jag Narayan Sharma murdered his step brother Krishna Sharma aged about 12 years as he wanted to grab the property of his share and that due to heavy rains he could not come to the police station to lodge an FIR soon after the occurrence as no conveyance was available. The police registered a crime against the accused under Sections 302 and 120-B, IPC accordingly and made entry regarding the registration of the crime in the GD (Exts. ka-7 and ka 8 ). ( 4 ) SIVP Arya to whom investigation of the crime was entrusted went at the scene of occurrence and drew inquest proceedings on the dead body of Krishna Sharma. He prepared inquest report (Ext. ka 5) and other necessary papers (Exts. ka 10 to ka 15) and handed over the dead body in a sealed cover along with necessary papers to the constables jal Ram and Sri Ram for being taken for its post mortem. He prepared inquest report (Ext. ka 5) and other necessary papers (Exts. ka 10 to ka 15) and handed over the dead body in a sealed cover along with necessary papers to the constables jal Ram and Sri Ram for being taken for its post mortem. Then he inspected the place of occurrence and prepared its site plan map (Ext. ka 9 ). He also collected bloodstained and simple earth from the site and prepared their memos (Exts. ka 2 and ka 3 ). He also recorded statements of the witnesses and did other necessary things. ( 5 ) AUTOPSY on the dead body of Krishna sharma was conducted by Dr. Pradeep kumar Sinha Senior Medical Officer, TB sapru Hospital, Allahabad on 16th of January 1996 at about3 ; 15p. m. which revealed below noted ante-mortem injuries on the dead body :1. Incised wound 8. 5 cm x 6. 5 cm x muscle deep on back of neck. 2. Contusion 3 cm x 2 cm on cheek below left eye. 3. Laceration measuring 2 cm x 2 cm on right testicle. 4. Abrasion 2 cm x 1 cm on chin. ( 6 ) ON an internal examination he found that stomach contained partially digested food and small and large intestines contained faecal matter. The doctor opined that death was caused due to shock and haemorrhage as a result of ante-mortem injuries caused by some sharp edged weapon about two days ago. ( 7 ) IT appears that investigating officer arrested the accused Jag Narayan Sharma the same day i. e. 15th of January 1996 and recovered the axe at his instance. ( 8 ) AFTER completing the investigation the police submitted charge-sheet against the accused accordingly. ( 9 ) THE blood-stained clothes of the deceased, blood-stained earth and axe allegedly recovered at the instance of the accused were sent to Forensic Science Laboratory u. P. for the Serologists opinion if they contained human blood and if so of which blood group. A perusal of the Serologists report goes to show that blood-stained clothes contained human blood and blood-stains on earth and axe were found disintegrated. ( 10 ) AFTER framing of charge against the accused the prosecution examined Durga prasad (P. W. 1), Visheshwar Singh (P. W. 2), and Ram Ayodhya (P. W. 3) as eye-witnesses of the occurrence. A perusal of the Serologists report goes to show that blood-stained clothes contained human blood and blood-stains on earth and axe were found disintegrated. ( 10 ) AFTER framing of charge against the accused the prosecution examined Durga prasad (P. W. 1), Visheshwar Singh (P. W. 2), and Ram Ayodhya (P. W. 3) as eye-witnesses of the occurrence. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. P. W. 4 Constable shri Ram is the witness who along with constable Jal Ram took the dead body of Krishna Sharma in a sealed cover along with necessary papers for its post-mortem. P. W. 5 Dr. Pradeep Kumar Sinha who conducted autopsy on the dead body of Krishna sharma on 16-1-96 at about 3-15 p. m. proved the post-mortem reported stating that the ante-mortem incised wound was sufficient to cause the death in ordinary course. P. W. 6 HM Shri Ram Verma who prepared the check report on the basis of the written report handed over at the police station and made entry regarding registration of the crime in the G. D. has proved these papers (Exts. ka 7 and ka 8 ). P. W. 7 S. I. V. P. Arya who investigated the crime has proved the police papers. ( 11 ) THE accused pleaded not guilty denying the alleged occurrence altogether. However he stated that one Raj Kumar and others caught hold of Krishna Sharma and got him murdered by him forcibly. It appears that co-accused Laxman sharma had examined D. W. 1 Raj Mani Pal in his support. ( 12 ) ON an appraisal of the evidence on record and hearing the parties learned counsel, the learned Additional Sessions judge held the accused-appellant guilty of the charge levelled against him and convicted him under Section 302, IPC and sentenced him to imprisonment for life and a fine of Rs. 5000. 00 thereunder. ( 13 ) FEELING aggrieved by the impugned judgment and order the accused-appellant preferred this appeal for redress. ( 14 ) HEARD Sri R. K. Srivastava learned amicus Curiae for the appellant and the learned AGA. 5000. 00 thereunder. ( 13 ) FEELING aggrieved by the impugned judgment and order the accused-appellant preferred this appeal for redress. ( 14 ) HEARD Sri R. K. Srivastava learned amicus Curiae for the appellant and the learned AGA. ( 15 ) WE have gone through the record and the impugned judgment and given our anxious consideration to the findings recorded by learned Additional Sessions Judge but we are unable to find ourselves in agreement with the findings recorded by the Court below for the following reasons : ( 16 ) FIRST, FIR of the occurrence lodged at police station Koraon is much delayed as the alleged incident took place on 14th of january 1996 and FIR of the occurrence was lodged at the police station next day i. e. on 15th of January 1996 at 4. 00 p. m. P. W. 1 durga Prasad, the first informant who was the village Pradhan offered the explanation that since it was raining and he had no conveyance he should not go to the police station to lodge FIR of the occurrence promptly. The explanation offered for not lodging FIR of the murder of Krishna Sharma at the police station by P. W. 1 Durga Prasad, the first informant does not appear to be plausible and convincing as he admitted in his cross-examination that he was returning on bicycle from Varaudha market when he heard the shrieks and reached the scene of occurrence and witnessed the murder. He stated that he possessed a tractor also. Police station Koraon was only at a distance of 18 Kms from village Berry. He could have gone to the police station to lodge an FIR of the occurrence soon after the murder either on bicycle or by tractor. The incident took place at about 4. 00 p. m. Being the village pradhan he was a responsible person and the Incident took place in day time, and under the circumstances FIR of the occurrence should have been lodged promptly soon after the murder. P. W. 2 Visheshwar singh stated in his cross-examination that next day of the alleged murder the sub-inspector reached the village at about 9-10 a. m. and got the report scribed by Durga prasad and went away asking Durga Prasad to send the dead body at the police station. P. W. 2 Visheshwar singh stated in his cross-examination that next day of the alleged murder the sub-inspector reached the village at about 9-10 a. m. and got the report scribed by Durga prasad and went away asking Durga Prasad to send the dead body at the police station. Thus inordinate delay of about a day in lodging fir of the occurrence with the police at the police station is fatal to the prosecution case as it is not known as to what was the first version of the occurrence given to the police and the FIR loses all its corroborative value and authenticity. ( 17 ) SECONDLY, there are material variations and incongruities in the statements of the witnesses and also the evidence adduced by the prosecution going to the very root of the case rendering their testimony unworthy of credence. P. W. 1 Durga Prasad stated in his examination-ln-chief that since it was raining and there was no means of conveyance he could not go to the police station to lodge FIR of the occurrence promptly. However he stated in his cross-examination that at the time of the occurrence he was returning from Varaudha market situate at a distance of some seven miles from the village and on hearing the strieks he went to the scene of occurrence. He stated that he possessed a tractor also at that time. Further, p. W. 2 Visheshwar Singh stated in his ex-amination-in-chief that after inflicting injuries to Krishna Sharma with axe Jag Narain ran away with the axe and on account of fear they could not apprehend him whereas in his cross-examination he stated that after giving fatal blows to Krishna Sharma with axe he ran away towards west and he along with other co-villagers chased him and caught hold of him at a distance of some 150 yards and brought him at the scene of occurrence and tied him with strings. However p. W. 3 Ram Ayodhya stated in his crossexamination that none of the villagers chased the assailant nor he was apprehended on the spot. Further, a perusal of the post-mortem report goes to show that the doctor found an ante-mortem incised wound on back of neck whereas P. W. 3 Ram ayodhya stated in his cross-examination that axe blows hit Krishna Sharma on front side of his neck. Further, a perusal of the post-mortem report goes to show that the doctor found an ante-mortem incised wound on back of neck whereas P. W. 3 Ram ayodhya stated in his cross-examination that axe blows hit Krishna Sharma on front side of his neck. Furthermore, P. W. 2 visheshwar stated in his examination-in-chief that Jag Narain gave axe blows to krishna Sharma in his presence and ran away whereas he stated in his cross-examination that he could not say as to how long the attack continued as he reached the scene of occurrence later. In view of these facts these witnesses cannot be said to be truthful and straightforward and are no better than got up witnesses. ( 18 ) THIRDLY, alleged recovery of the blood stained axe at the instance of the accused is of no avail to the prosecution. P. W. 7 SI V. P. Arya, the Investigating officer who arrested accused Jag Narain stated that the axe was recovered at the instance of the accused in presence of the witnesses and he prepared the recovery memo thereof. He nowhere deposed that the accused made any disclosures to him relating to the recovery. P. W. 3 ram Ayodhya, witness of the alleged recovery too nowhere stated that after being arrested accused Jag Narain made any disclosures to the Sub-inspector leading to the alleged recovery of the axe. He stated only this much that the accused produced the axe from the bushes with which he murdered krishna Sharma. It appears that the axe allegedly recovered was not produced in the Court at the time his statement was recorded. P. W. 7 SI V. P. Arya, the investigating officer did not state the date and time as to when he arrested the accused. He also did not state as to when and from where recovery of the axe was made at the instance of the accused. In his cross-examination this witness could not tell the specifications of the axe allegedly recovered at the instance of the accused. There is nothing on the record to show that the investigating officer prepared the site plan map of the place from where the alleged recovery was made at the instance of the accused. In view of all these facts the recovery of alleged axe at the instance of the accused becomes suspicious and is of no use to the prosecution. There is nothing on the record to show that the investigating officer prepared the site plan map of the place from where the alleged recovery was made at the instance of the accused. In view of all these facts the recovery of alleged axe at the instance of the accused becomes suspicious and is of no use to the prosecution. ( 19 ) FOURTHLY, the blood-stained axe was not produced before the doctor for his opinion if the ante-mortem incised wound on neck of the deceased could be caused with that very axe. ( 20 ) LASTLY, motive attributed for the alleged crime has not been established satisfactorily. It has come in evidence that Jag narain murdered Krishna Sharma in order to grab his property which does not appeal to us as Lakshman Sharma had two sons from his second wife, one Krishna Sharma and another son younger to him. Admittedly younger brother of Krishna Sharma, the deceased still used to reside with his father lakshman Sharma. Thus we are of the view that motive for the alleged murder has not been proved satisfactorily. ( 21 ) THUS in view of the above facts and circumstances attending the case it would not be safe to place implicit reliance on the evidence furnished by the prosecution. ( 22 ) IT has been pointed out that the accused appellant confessed his guilt in his statement recorded under Section 313 of the code of Criminal Procedure. A perusal of the statement of the accused recorded under section 313 of the Code of Criminal Procedure goes to show that to all the questions put to him on the case, his case was of denial, and to the last question if he had to say anything else he stated that some four persons including one Raj Kumar caught hold of Krishna Sharma and got him murdered by him forcibly. Then another question was put to him if he was stating so voluntarily and he might be convicted on the basis thereof and he replied. yes. In our opinion, since from beginning of the case his case had been of denial and he fought it up to the last and he had denied every question put to him on the case in the trial Court it appears that in the last he stated so under some confusion. yes. In our opinion, since from beginning of the case his case had been of denial and he fought it up to the last and he had denied every question put to him on the case in the trial Court it appears that in the last he stated so under some confusion. Otherwise too, the proscution case has been of only one assailant. The prosecution nowhere alleged at any stage that there were one or more persons who caught Krishna Sharma, and then the accused-appellant gave him axe blows. The learned Additional Sessions Judge nowhere recorded his satisfaction that this confession was voluntarily made by the accused. No memorandum was recorded by the learned Additional Sessions Judge under the confessional statement that the same was read over to the accused and admitted by him to be correct and it contained a full and true account of the statement made by him. Since immediately before making the said confessional statement the accused stated in reply to all the questions put to him on the case that it was incorrect and after the judgment of the trial Court resulting in his conviction he preferred appeal from jail against that Judgment we are of the view that such a confessional statement cannot form sturdy basis for his conviction. ( 23 ) WE therefore find that prosecution has failed to bring the charge home to the. accused satisfactorily and convincingly and therefore he is given benefit of doubt. The appeal is allowed and the Impugned judgment and order convicting the accused under Section 302, IPC and sentencing. him to imprisonment for life and a fine of rs. 5000. 00 thereunder are hereby set aside. The accused is acquitted of the charge levelled against him. He shall be released from the Jail forthwith if not wanted to remain therein in any other case. Office to send copy of the judgment to the Court below along with record of the case for compliance immediately under intimation to this Court within one month from today. .