JUDGMENT This Judgment also governs the disposal of Criminal Appeal 1077 of 96, Bhavsingh and ors. vs. State of M.P. These Criminal appeals have been preferred by the appellant against the judgment rendered by Additional Sessions Judge, Rajgarh in Sessions Trial No. 161/92 dated 1-12-1996, thereby finding the appellants Ramcharan, Sewaram, Jainarayan, Bansiram, Bhavsingh and Latoor, guilty for the offence punishable u/s 148, Indian Penal Code and sentenced each to suffer RI for 3 years and appellants Ramcharan and Rajaram have been convicted for the offence u/s 302, Indian Penal Code and sentenced both of them to suffer Rigorous Imprisonment for life. Appellants Hariprasad, Sewaram, Jainarayan, Bansiram, Bhavsingh and Latoor have also been convicted for the offence under sections 302/149 and sentenced each of them to undergo RI for life. All the sentences were directed to run concurrently. The prosecution case Multum in Purvo is that on 1-6-1992 in the evening between 7.00 p.m. and 7.30 p.m. Badriprasad (PW 1) and Babulal (PW 3) were returning to their village from the market. When they were crossing forest, on the way, near a tree, situated by the side of small water tank, they witnessed that deceased Jagganath was being assaulted by the appellants Rajaram, Ramcharan and Hariprasad and other appellants by Farsi, ballam, gun and lathis respectively. Appellant Ramcharan dealt ballam blow on the head of the deceased and appellant Rajaram caused injury by Farsi (hard and blunt edged weapon). Both the witnesses Badriprasad (PW 1) and Babulal (PW 3) on seeing the assault, because of fear, ran away towards village. In the village, they disclosed about the incident to Hariprasad (not examined as witness). Thereafter Badriprasad and Hariprasad and other villagers reached on the spot but deceased Jagganath was not available. They made a search nearby and found nude dead body of Jagganath, amongst small plants of teak and clothes of the deceased were also found at some distance. Badriprasad (PW 1) went to Police Station along with Hariprasad, Kanhaiyalal (PW 3) and lodged First Information Report Exh.P/1 at 11.05 p.m. in the night. First Information Report was recorded by Station House Officer, D.S. Chouhan (PW 12). On the basis of the report, the police party reached at the scene of occurrence, inquest of the dead body, Exh.P/2, was prepared. Map is Exh. P/4. Seizure of blood stained clothes of the deceased, blood stained earth and controlled earth, was affected. First Information Report was recorded by Station House Officer, D.S. Chouhan (PW 12). On the basis of the report, the police party reached at the scene of occurrence, inquest of the dead body, Exh.P/2, was prepared. Map is Exh. P/4. Seizure of blood stained clothes of the deceased, blood stained earth and controlled earth, was affected. The dead body of deceased Jagganath was sent for post mortem examination and the same was performed by Dr. P.S. Pal (PW 11). The post-mortem report is Ex. P/29. After usual investigation, charge sheet was filed. The appellant denied charges. Some of the appellants have also pleaded alibi and examined witnesses in defence. The prosecution has examined as many as 14 witnesses whereas defence has examined five witnesses. Learned trial Court convicted and sentenced the appellants for the aforesaid offence as indicated above. Hence this appeal. We have heard learned counsel for the parties and perused the entire record of the case carefully. Learned counsel for the appellants vehemently canvassed before this Court that First Information Report was concocted piece of document and brought into existence ante date and time. He also submitted that there was delay in lodging First Information Report as well as arresting the appellants. Non compliance of provision of section 157, Criminal Procedure Code throwing doubt on genuineness of First Information Report. Learned counsel has also criticized the evidence of eye witnesses Badriprasad (PW 1) and Babulal (PW 3) on the ground that they are interested, and partisan witnesses being brothers of the deceased. They are also convicted for causing grievous hurt to appellant No. 8 Latoor (in criminal appeal No. 1077/96). According to him, both the witnesses were chance witnesses and their conduct was highly abnormal. Per contra, Mr. Girish Desai learned Deputy Advocate General appearing for the State of Madhya Pradesh, has supported the judgment and findings of conviction arrived at, by the learned trial Court. According to him, merely because eye-witnesses were interested and partisan witnesses, their evidence cannot be disbelieved without strong reason. The conviction of the appellants is mainly based on the testimony of two eye-witnesses Badriprasad (PW 1) and Babulal (PW 3). We have to consider whether both these witnesses could be relied on or not. According to him, merely because eye-witnesses were interested and partisan witnesses, their evidence cannot be disbelieved without strong reason. The conviction of the appellants is mainly based on the testimony of two eye-witnesses Badriprasad (PW 1) and Babulal (PW 3). We have to consider whether both these witnesses could be relied on or not. Both the witnesses have admitted in their statements that they are real cousins of deceased Jagganath and they, along with the deceased had faced criminal prosecution for causing grievous injuries to appellant No. 8 Latoor. In this state of evidence, both the witnesses are ill disposed towards appellants and being relations also interested and partisan. They are also chance witnesses, therefore, the testimony of both the witnesses are required to be looked into and appreciated with great care and caution. We may profitably refer to the judgment of the Apex Court passed in the Case of Bahal Singh Vs. The State of Haryana, wherein it has been held that: If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused, then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. The judgment of conviction of the learned trial Court is mainly based on the testimony of eye witnesses Badriprasad (PW 1) and Babulal (PW 3) and witness Kamal Singh (PW 2) to whom both the eye witnesses gave information in the village about the incident and they all came along with the villagers on the spot in the night. Badriprasad (PW 1) has stated that he and Babulal (PW 3) were returning back to their village in the night at about 7-8 p.m. from Narsinghgarh market and while they were passing through Gumanipura forest, he saw all the appellants assaulting deceased Jagannath and that appellant Ramcharan was having ballam and appellant Rajaram was possessing Farsi. Appellant Hariprasad was having gun and rest of the appellants were having lathis. Upon seeing this incident, they immediately ran away to their village Vijaygarh and narrated this fact to Hariprasad, Premnarayan and Kanhaiyalal. Appellant Hariprasad was having gun and rest of the appellants were having lathis. Upon seeing this incident, they immediately ran away to their village Vijaygarh and narrated this fact to Hariprasad, Premnarayan and Kanhaiyalal. They returned back along with these persons on the spot and found pool of blood on the spot whereas the dead body of Jagganath was lying in the ditch in a nude condition. The witness and Hariprasad went to police station Narsinghgarh and lodged report Ex. P/1. In the presence of these witnesses, police prepared inquest of the dead body vide Exh. P/2 as well as spot map Ex. P/4 and also seized clothes of the deceased lying underneath a tree. The clothes of the deceased were lying away at different place that the place where the dead body was found. In cross-examination, this witness has admitted about facing of prosecution for assaulting of one of the appellants Latoor. He has also admitted that the witness and deceased Jagganath, Babulal (PW 3) Hariprasad (PW 4) and Jagdish, Kanhaiyalal are brothers. In paragraph 4 the witness deposed that place of occurrence was 1 kilometer away from Narsinghgarh and village Vijaygarh is also situated at 1 kilometer. The sun was set but there was no darkness. The witness has denied various suggestions given to him in the cross-examination regarding not witnessing the incident and the fact that the deceased was molesting the modesty of women because of which he was assaulted by some persons after unclothing him. The suggestion was also given to him and his brothers with regard to killing the deceased. The witness also denied that he immediately did not go to the police station and after going to the village within 3-4 hours, concocted a false report. This witness has also admitted that he reached police station between 8-9 p.m. According to him, he reached the police station after one and half hours of the time of incident but since he did not wear wrist watch he could not give exact time of lodging of report. According to him, his statement was recorded in the next day in the morning and all the proceedings were drawn by the police on the next day, though the police party reached the spot near the dead body, in the night itself. In the same night, police had also caught appellant Hariprasad, Sewaram, and Jainarayan. According to him, his statement was recorded in the next day in the morning and all the proceedings were drawn by the police on the next day, though the police party reached the spot near the dead body, in the night itself. In the same night, police had also caught appellant Hariprasad, Sewaram, and Jainarayan. All these appellants/accused were taken in a jeep to the police station from the village in the mid night between 12 and 1 O'clock. He was confronted with his First Information Report, Ex. P/l in which it has not been mentioned that he disclosed about the incident to Kanhaiyalal and Premnarayan. He has not given any reason for this omission. The say of Kamalsingh (PW 2) is that on the date of incident, in the night he was in his village, at that juncture, Badriprasad (PW 1) and Babulal (PW 3) reached in the village and informed about assault to the deceased by the appellants whereupon the witness Kamalsingh and Premnarayan and other villagers went to the spot and found nude dead body of Jagannath lying in a ditch by the side of the road near tank (Talai). He stayed near the dead body and Badriprasad (PW 1) and Babulal (PW 3) went to police station. He is also the witness of spot map and inquest. This witness has admitted that he is the real brother of Badriprasad (PW 1) and witnesses Hariprasad, Babulal and Jagannath are his brothers. Deceased Jagannath and Hariprasad are real brothers and sons of his uncle. According to this witness, 8-10 police personnel reached in the village between 7-8 p.m. Out of them, two constables stayed on the spot and two of them went in a jeep to village to arrest appellant/accused persons and returned back in a jeep to police station with accused persons. The jeep did not stop near the dead body. The police officials, in the jeep reached the police station by the road, by the side of place of incident. This witness, Badriprasad (PW 1) and other villagers remained near the dead body for the whole night and on the next day, in the morning at 8.00 a.m. police came to take the dead body and dead body was sent to the hospital. According to this witness, their statements were recorded by the police in the night itself on the spot near the dead body. According to this witness, their statements were recorded by the police in the night itself on the spot near the dead body. His statement was recorded between 8.9 p.m. Again, he has changed his version and stated that his statements were recorded in the morning next day and in the night, police did not do anything but remained present near the dead body. The witness further deposed that police station was less than half kilometer away from the place of occurrence. He was confronted with the case diary statement Ex.D/1 regarding the fact of possession of a gun by accused Hari. Another witness Babulal (PW 3) who was accompanying with Badriprasad (PW 1) has also stated the same fact. In paragraph 3, this witness has admitted that in the village they were having two parties one was headed by him and the other headed by the appellant Latoor. He has also admitted about beating of Latoor by his party. In paragraph 4 this witness has stated that when he was passing through the forest along with Badriprasad (PW 1) there was day light and the sun was about to set. According to this witness, the witness himself Kanhaiyalal, Hariprasad and Badriprasad went to police station and the First Information Report was lodged by Hariprasad whereas Badriprasad was standing with them. The witness has also stated that he is not able to remember as to who was dictating the report. Before appreciating the statements of these three witnesses, it would be apposite to mention about the statement of investigating officer D.S. Chouhan (PW 12). According to this witness on 1-7-1992, in the night at about 11.05 p.m. Badriprasad (PW 1) lodged oral report Ex.P/1 in the police station and the same was written by him. The inquest of the dead body and the spot map were prepared next day in the morning. In paragraph 3 the witness has deposed that the distance from village Narsinghgarh to village Vijaygarh is 3 kilometers and it takes 10-15 minutes by jeep or motorcycle to reach. The witness reached the spot in the mid night 12 O'clock. He has further deposed that from 12 in the mid night to 7 a.m. the next day, he had not done any investigation because of darkness. He has denied about calling of the accused persons and their search. The witness reached the spot in the mid night 12 O'clock. He has further deposed that from 12 in the mid night to 7 a.m. the next day, he had not done any investigation because of darkness. He has denied about calling of the accused persons and their search. The witness is not able to answer whether the copy of First Information Report was sent to the concerned Magistrate or not and if it is sent at what time. There was no mention of all these facts in the case diary. In the First Information Report also this fact has not been mentioned. In the cross-examination the defence has shown him the document of inquest. Ex. P/2 and notice to the witness, Ex. P/3 and in these documents crime number was not mentioned. He has denied the suggestion that since First Information was not written for that reason crime number was not mentioned on these documents. Mohd. Yusuf Khan (PW 9) ASI had arrested the appellants. Appellants Shivnarayan, Jainarayan and Hariprasad were arrested on 6-7-1992 vide arrest memo Ex.P/8; appellants Bansiram, Bhavsingh were arrested on 7-7-2002 vide arrest memo Ex. P/18 and Ex. P/19 whereas appellants Latoor and Rajaram were arrested on 15-7-1992 vide arrest memo Ex. P/22. D.S. Chouhan (PW 12) the Investigating Officer, in paragraph 4 has denied about the search of the accused persons and calling them between mid night 12 O'clock and on next day at 7 a.m. Dr. P.S. Pal (PW 11) has performed autopsy of the dead body and noted seven incised injuries on the various parts of the body including head, in all total 10 abrasions and contusions were found caused by hard and blunt object. The doctor opined that the deceased died because of haemorrhage due to head injury. Number of injuries on the persons of the deceased is clearly revealing the fact that more than one person and more than one kind of weapon was used for assaulting the deceased. In the light of the aforementioned evidence of the prosecution witnesses the situation boils out viz. Badriprasad (PW 1), Kamalsingh (PW 2) and Babulal (PW 3) are brothers of the deceased and belonging opposite group of the appellants. They faced the prosecution for causing grievous hurt to one of the appellants Latoor and Badriprasad (PW 1), Babulal (PW 3) are the chance witnesses. Badriprasad (PW 1), Kamalsingh (PW 2) and Babulal (PW 3) are brothers of the deceased and belonging opposite group of the appellants. They faced the prosecution for causing grievous hurt to one of the appellants Latoor and Badriprasad (PW 1), Babulal (PW 3) are the chance witnesses. In this situation, when the police station was only 3 kilometers away from village Vijaygarh and 1 kilometer away from the place of incident in which First Information Report was lodged in the night at 11.05 p.m., no reason much less plausible explanation has been given by the witness with regard to delay. The delay simpliciter would not cause damage to the prosecution case but under the circumstances as they exist in the present case, these witnesses are brothers of the deceased and fully aware of the Court proceedings and police investigation because they were facing prosecution for the offence u/s 326, Indian Penal Code and also some of them were convicted, therefore, it should have strike in their mind for prompt lodging of First Information Report. When the incident took place, according to them, there was no darkness and it was evening time, the sun was about to set. While witnessing the incident, neither they tried to rescue the deceased even by raising an alarm attracting the people of the nearby locality. They have also admitted that they reached the police station between 8-9 p.m. in the night then why the First Information Report was lodged at 11.00 p.m. Badriprasad (PW 1), has very specifically stated that three appellants were brought into police station in the same night whereas their arrest was shown by Mohd. Yusuf Khan (PW 9) ASI on 6-9-1992, 7-7-1992 and 15-7-1992. None of the appellants was arrested in the same night or even the next day. If First Information Report was lodged in the same night as shown and appellants were known to the witnesses as well as policemen, why their arrest was not made immediately and why there is contradiction between the statements of witnesses Badriprasad (PW 1), Kamalsingh (PW 2) and Investigating Officer D.S. Chouhan (PW 12). Investigating Officer D.S. Chouhan (PW 12) has deposed that after writing First Information Report, he along with police force reached the spot in the mid night at about 12 and did not step into investigation till morning up to 7.00 a.m. the next day. Investigating Officer D.S. Chouhan (PW 12) has deposed that after writing First Information Report, he along with police force reached the spot in the mid night at about 12 and did not step into investigation till morning up to 7.00 a.m. the next day. This statement does not appear to be correct. If the First Information Report was lodged and the names of the assailants mentioned therein, the police would not have sat idle for 7-8 hours instead of taking any step for locating and arresting the accused persons. This shows that First Information Report was not lodged as stated by Badriprasad (PW 1), but the same was brought into existence later on and the same was concocted at the instance of Badriprasad (PW 1), Kamalsingh (PW 2) and Babulal (PW 3) on guess work. It is also clear from statement of Badriprasad (PW 1), who says that three appellants were brought into police station in the same night by the police. This could have been done on the basis of suspicion and that is why the arrest of the accused persons was not affected immediately. If the offence was registered vide Ex. P/1 in the night on 1-7-1992 at 11.05 p.m. and the First Information Report Ex. P/1 was disclosing the fact of commission of cognizable offence like murder in which names of all the assailants and the witnesses as well as detail of whole incident were available, why the arrest of the accused persons was not made in the same night when specifically three appellants were brought into police station. Denial of Investigating Officer D.S. Chouhan (PW 12) in his deposition (paragraph 4) that he did not do any investigation, for about eight hours and did not try to search or locate or arrest the accused persons during this period, is unbelievable. His statement, from all corners, goes against prosecution. 16-17. In the case of Mohanlal Gangaram Gehani Vs. State of Maharashtra, three Judges Bench of the Supreme Court has made the following observation in paragraph 23 The witness further admits that although he had come to know the name of the assailant at 00.50 am yet he did not take any step to arrest or cause the arrest of any one of the accused. He has not given any explanation for this unusual conduct. He has not given any explanation for this unusual conduct. It is extremely doubtful if PW 1 had actually named the appellant, Inspector Sawant would not have arrested him immediately after the FIR was lodged or, at any rate, after he returned from the hospital. The evidence, however, shows that A/1 was arrested on 5-4-1972, that is to say, two days after the occurrence. No explanation for this unusual phenomenon has been given by the prosecution. [Also see Sadaram Kalar Vs. The State of Madhya Pradesh, ; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, (Para 25); and State of U.P. Vs. Sukhbasi and Others, (Para 13)]. In the light of these pronouncements and the evidence available in the present case, we are of the opinion that non-explanation of delay in arresting the appellant goes against the prosecution and as a matter of fact, the appellants were brought into police station in the same night but the police was not sure about their involvement and up to that time First Information Report was not written, therefore, their arrest was not made. Though Badriprasad (PW 1) and Babulal (PW 3) have stated that they immediately reached the village and disclosed about the incident to number of persons but out of them, independent persons have not been examined by the prosecution and one witness Premnarayan (PW 4) who has been declared hostile had disclosed only the fact that Hariprasad informed him at his house that quarrel had taken place between Ramcharan and deceased Jagganath. This witness has nowhere stated that he was informed by the witnesses Badriprasad (PW 1) and Babulal (PW 3). If Badriprasad (PW 1) and Babulal (PW 3) had really witnessed the incident and acted as deposed by them, the prosecution must have examined some independent persons of the village. There is omission in the First Information Report about giving the information about the incident to Kanhaiyalal and Premnarayan. Badriprasad (PW 1) has stated that he has also informed about the incident to Mansingh but said Mansingh has also not been examined. Kamalsingh (PW 2) is the real brother of Badriprasad (PW 1). According to this witness; police party reached the village between 7-8 p.m. the same day. Badriprasad (PW 1) has stated that he has also informed about the incident to Mansingh but said Mansingh has also not been examined. Kamalsingh (PW 2) is the real brother of Badriprasad (PW 1). According to this witness; police party reached the village between 7-8 p.m. the same day. The statement of this witness again throws considerable amount of doubt about time of the incident and the events of the incident as narrated by Badriprasad (PW 1) and Babulal (PW 3) because according to Badriprasad (PW 1) and Babulal (PW 3) the incident had taken place in the evening at about 7-8 p.m. This material contradiction between Badriprasad (PW 1) and Kamalsingh (PW 2) is sufficient to discard the prosecution story about the incident and the factum of lodging of report in the same night. The dead body of the deceased was found in a nude condition. This is also the circumstance which has not been explained by the eye witnesses. The clothes of the deceased Jagannath were seized from nearby the place of occurrence lying underneath the tree but no expert report has been filed by the prosecution to show that the clothes were having marks of weapons. If at the time of assault, deceased was wearing these clothes, the clothes would have cut by the sharp edged weapons and also torn by hard and blunt objects. If the statement of Kamalsingh (PW 2) is correct that police party reached the village in the night between 7-8 p.m., and then the incident must have taken place much prior to that time and the same was not witnessed by Badriprasad (PW 1) and Babulal (PW 3). This makes the position very clear that after receiving information of presence of dead body or when the dead body was seen by these witnesses Badriprasad (PW 1) and Babulal (PW 3) they reached in the village and because of previous enmity against the appellants, concocted a false story thereafter went to police station but their report was not written and Investigating officer D.S. Chouhan (PW 12) brought appellants in the same night in the police station and thereafter, case has been concocted against the appellants. Whether the First Information Report was lodged in a given time and date the same could be checked by the fact of sending its copy to the concerned Magistrate and the Superintendent of Police as per Provisions u/s 157, Criminal Procedure Code and the Provisions of police Regulations. In the case on hand, the defence has put specific question to investigating officer D.S. Chouhan (PW 12) about sending of First Information Report to the concerned Magistrate, he is not able to give any specific reply and given evasive reply. He replied that he was not knowing whether the copy of the FIR was sent or not and if it is sent at what time. All these facts were also not mentioned in the case diary as well as in the First Information Report. 19-A. The Supreme Court in the case of Birsingh vs. State, AIR 1978 SC 58 has held that "burden lies on the prosecution to prove direct compliance of section 157 of the Criminal Procedure Code and if the same has not been discharged, an adverse inference can be drawn against the prosecution." In the case on hand, the prosecution has not discharged the burden as per Provision u/s 157, Criminal Procedure Code by which the Court could judge genuineness of the First Information Report. Thus, we hold that First Information Report is not a genuine piece of document and brought into existence in ante date and time. Learned trial Court has not considered all the aforementioned glaring and apparent defects which go to the root of the case. Recently the Supreme Court in the case of Gorle S. Naidu vs. State of M.P., AIR 2004 SCW 52 while considering the fact of delay for lodging report and other circumstances has held as under: The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible only evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is not less than from the conviction of an innocent. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is not less than from the conviction of an innocent. Applying the test of appreciation of evidence, the evidence of interested, partisan, inimical and chance witnesses Badriprasad (PW 1) and Babulal (PW 3) are also not getting corroboration from the independent material particulars. The statement of Kamalsingh (PW 2) instead of helping them spoiled the prosecution case as discussed above. Consequently, in view of the foregoing discussions, we are of the opinion that the prosecution is not able to prove its case beyond all reasonable doubt. Thus, the appellants are entitled to get benefit of doubt. Hence, these appeals are allowed. The conviction and sentence of the appellants are hereby set aside. Appellants No. 4 and 7 are in jail, they are directed to be released forthwith, if not required in any other case. Rest of the appellants are on bail, their bail bonds stand discharged. The amount of fine, if deposited, it be refunded. In the terms indicated above, the aforesaid Criminal Appeals stand allowed. Copy of this judgment be placed in connected Criminal Appeal No. 1077 of 96; Bhavsingh and ors. vs. State of M.P. Final Result : Allowed