Judgment P.V. HARDAS, J. :- The appellants in these two appeals who stand convicted for offence punishable under section 302 read with sections 149 of the I.P.C., 147, 148, 323 read with Section 149 and 504 of I.P.C. and sentenced to imprisonment for life and to each pay a fine of Rs.100/- with a default stipulation of undergoing further R.I. for six months, R.I. for two years and to each pay a fine of Rs. 100/ - with a default condition of undergoing further R.I. for two months, R.I. for three years and each to pay a fine of Rs.100/-, in default of payment of fine to suffer further R.I. for three months, R.I. for one year and fine of Rs.100/each in default of payment of fine to undergo further R.I, for three months, and R.I, for two years and to pay a fine of Rs.100/- each in default of payment of fine to undergo further R.I, for three months, respectively by the II Additional Sessions Judge, Jalna, by judgment dated 30-11-2004, in Sessions Case No.48 of 2004, by these appeals question the correctness of their conviction and sentence. Since both these appeals at the behest of original accused challenge their conviction, both these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.9 P.I. Amrut Deshmukh was attached to Gondi Police Station on 7-11-2003. On that day P.W.1 Kamlabai came to the Police Station and lodged her oral report which was reduced into writing at Exh.28. On the basis of the said report at Exh.28, an offence vide Crime No.106 of 2003, under sections 147,148,149,326,324,504 and 323 of I.P.C. came to be registered. The investigation of the said crime was entrusted to P.W.9 P.I. Deshmukh. Accordingly, on 7-11-2003 he visited the scene of the offence and drew the scene of the offence panchanama in the presence of witnesses at Exh.50. He recorded the statements of P.W.1 Kamlabai, P.W.2 Keshav, P.W.4 Sham and others. On 8-11-2003, he received an M.L.C. from the hospital that injured Mahadeo who had been undergoing treatment in the hospital and succumbed to his injuries. Accordingly, section 302 of the I.P.C. came to be added. On 8-112003, he arrested accused Ashok and accused Dnyandeo. On 10-11-2003, he arrested accused Dashrath and accused Sopan. On 8-11-2003, he received an M.L.C. from the hospital that injured Mahadeo who had been undergoing treatment in the hospital and succumbed to his injuries. Accordingly, section 302 of the I.P.C. came to be added. On 8-112003, he arrested accused Ashok and accused Dnyandeo. On 10-11-2003, he arrested accused Dashrath and accused Sopan. On 13-11-2003, accused Ashok and accused Dnyandeo expressed their willingness, during custodial interrogation to point out the place where the weapons had been concealed by them. Accordingly, in the presence of panch witness, memorandum at Exh.37 came to be recorded. Accordingly accused Ashok took the police and the panch in a police jeep to his village and produced an axe from his house which came to be seized in the presence of panch witnesses as per panchanama at Exh.38. Accused Dnyandeo then made a statement before the panch witnesses that he would point out the place where the stick was hidden. The statement of accused Dnyandeo came to be recorded as memorandum at Exh.39. Accused Dnyandeo then took the police and the panch to his village and produced a stick from his house which came to be seized in the presence of panchas as per panchanama at Exh.40. On 15-11-2003, accused Sopan had expressed his willingness, during custodial interrogation, to point out the place where two sticks had been concealed by him. Accordingly, his memorandum at Exh.41 came to be drawn in the presence of panchas. Accused Sopan then took the police and the panch to his village and produced two sticks from his house which came to be seized vide panchanama at Exh.42. On 20-11-2003, P.W.9 P.I. Deshmukh arrested accused Bhaskar and Madhukar. On 24-11-2003, accused Bhaskar expressed his willingness to point out the place where an axe had been concealed. Accordingly, a memorandum at Exh.43 came to be drawn in the presence of witnesses. Accused Bhaskar then took the police and panch to his house and produced an axe which came to be seized in the presence of panchas vide panchanama at Exh.44. On the same day accused Madhukar had also expressed his willingness to point out the place where an axe had been concealed by him. His statement came to be recorded as a memorandum at Exh.45 in the presence of witnesses. On the same day accused Madhukar had also expressed his willingness to point out the place where an axe had been concealed by him. His statement came to be recorded as a memorandum at Exh.45 in the presence of witnesses. Accused Madhukar then took the police and the panch to his house and produced an axe which came to be seized in the presence of panchas by panchanama at Exh.46. The seized articles came to referred to the Chemical Analyser along with the requisition at Exh.56. Dead body of deceased Mahadeo had been referred for post mortem examination and the post mortem was conducted by P.W.10 Dr. Kailas Zine. P.W.10 Dr. Zine noticed the following external injuries. 1. Contusion on scalp over vertex of size 2 x 8 cm. linear vertically placed, blackished, localised in central. 2. Contusion on scalp over vertex just 1 cm. lateral to injury no. 1 on the left side of size 2 x 3 cm. blackished coloured. 3. Contusion of forehead on left side of 2 x 2 cm., 2 cm. above the eyebrow blackished coloured. 4. Abraded contusion over back on lower region on left side of 1 x 6 cm. blackished coloured on palpation body swelling over left parieto occipital region of size 15 x 10 cm. raised. He opined that the injuries were ante-mortem in nature. On internal examination, he found subgaleal organised haematoma of brownish colour over frontal, both parietal and temporal region of scalp. There was depressed fracture of scalp on left parietal region exactly under injury Nos.1 and 2. There was fracture to the left parietal bone, duramatter tom and brain matter was lacerated at left fronto parietal region and there was evidence of intracerebral intraventricular haematoma, reddish coloured. Lungs were congested and oedamatous. Organs of abdomen were congested. He therefore opined that cause of death was head injury. He accordingly issued the post mortem report which is at Exh.59. The C.A. report at Exh.56 shows that no blood was detected on the three axes and the three sticks. Sari of P.W.1 Kamlabai was found to be stained with blood of "B" group while the clothes of deceased Mahadeo were found to be stained with blood of "0" group. The blood group on the axe and the stiCks, however, could not be determined. Further to the completion of investigation, a charge-sheet against the appellants came to be filed. 3. Sari of P.W.1 Kamlabai was found to be stained with blood of "B" group while the clothes of deceased Mahadeo were found to be stained with blood of "0" group. The blood group on the axe and the stiCks, however, could not be determined. Further to the completion of investigation, a charge-sheet against the appellants came to be filed. 3. On committal of the case to Court of Sessions, II Additional Sessions Judge, Jalna, framed a charge against the appellants for offence punishable under section 302 read with sections 149, 147, 148, 149, 326 read with sections 149, 324 read with Section 149 and 504 read with section 149 of the I.P.C. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 10 witnesses. Trial Court relying on the testimony of P.W.1 Kamlabai, P.W.2 Keshav, P.W.3 Pralhad and P.W.4 Sham found that the prosecution had proved the offence against the appellants beyond reasonable doubt and therefore convicted and sentenced them as aforestated. 4. Before we advert to the submissions advanced before us by Mr. Joydeep Chatterji and Mr. P.S. Dighe, learned Counsel appearing on behalf of the appellants and the learned A.P.P. appearing on behalf of the State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Kamlabai wife of deceased Mahadeo states that the Government had allotted grazing land at village Ramgavan to her husband deceased Mahadeo. Because of allotment of the said land there used to be frequent quarrel between the appellants and deceased Mahadeo. On the date of the incident, accused had rushed towards her and husband with sticks and axe. The accused were also abusing her and her husband. Apprehending some injury at the hands of the accused, Kamlabai and her husband ran towards the village. Accused chased them and accused Nos. I to 4 assaulted deceased Mahadeo by axe. Accused N05 and 6 assaulted Kamlabai and her husband by sticks. Accused No.1 threatened her not to shout and had given an axe blow on her head. On account of the injuries sustained by Mahadeo, Mahadeo fen unconscious on the spot. One Dadarao Galfade had taken Kamlabai and her husband in a bullock-cart to the Primary Health Centre at Wadigodri and at that time P.W.4 Sham and one Rajendra had also accompanied them. On account of the injuries sustained by Mahadeo, Mahadeo fen unconscious on the spot. One Dadarao Galfade had taken Kamlabai and her husband in a bullock-cart to the Primary Health Centre at Wadigodri and at that time P.W.4 Sham and one Rajendra had also accompanied them. Since the Medical Officer was not present at the Primary Health Centre at Wadigodri, they were referred to the rural hospital at Pachoo. As per the advise of the Medical Officers of the Rural Hospital at Pachod, Mahadeo was referred to the Ghati Hospital at Aurangabad for treatment. Injured Mahadeo had not regained consciousness at the Ghati Hospital at Aurangabad and therefore P.W.1 Kamlabai had lodged her report at Police Station, Shahagad at Exh.28. She states that as she was attending her husband in the hospital, there was delay in lodging the report. Her husband, injured Mahadeo succumbed to his injuries on the next day. In cross-examination she has admitted that she had fallen unconscious when she was beaten by the accused and at that time her husband Mahadeo was ahead of her by about 20 ft. Omission has been duly proved that she had not stated in her report about the existence of dispute between the accused and deceased Mahadeo on account of allotment of grazing land. She has further stated that she was in the hospital till her husband succumbed to his injuries. She has stated that she had sustained an injury on her head of depth of more than 2 inches and blood had also oozed from her injuries. She has then admitted that P.W.4 Sham. Rajendra and Dadamo were present in the hospital at Aurangabad. P.W 3 Pralhad, Muktabai and P.W 2 Keshav and Rambhau had come to the hospital on the next day. She has admitted that the police had not enquired from her about the incident. Undisputedly, the FIR. at Exh.28 had been lodged on 6-11-2003 while the incident of beating had occurred on 2-11-2003. Deceased Mahadeo had succumbed to his injuries on 7-11-2003. The offence came to be registered at about 8.30 a.m. on 6-112003. 5. Prosecution has also examined P.W.2 Keshav, son of deceased Mahadeo. Keshav, at that time was aged about 14 years and states that on the day of the incident at about 5.45 p.m. he had gone for answering the call of nature along with Rajendra. P.W.4 Sham and one Rambhau. 5. Prosecution has also examined P.W.2 Keshav, son of deceased Mahadeo. Keshav, at that time was aged about 14 years and states that on the day of the incident at about 5.45 p.m. he had gone for answering the call of nature along with Rajendra. P.W.4 Sham and one Rambhau. While he was returning at about 6.00 p.m. he had noticed accused Nos. 1 to 6 abusing his father and mother and he had also seen accused Nos.1 to 4 assaulting his father and mother by axe. He had also seen accused Nos.5 and 6 assaulting his father and mother by sticks. He then states that his parents fell unconscious on the spot and thereafter Rajendra and Sham had taken his parents to the Primary Health Centre at Wadigodri in a bullockcart. Since the Medical Officer was not present, his parents were removed to the hospital at Pachod and from Pachod they were referred to the Ghati Hospital at Aurangabad. He states that on the next day, Rajendra and P.W.4 Sham had visited his house at Ramgavan and had informed him that his parents had been admitted in the Ghati Hospital at Aurangabad. He states that his father had succumbed to his injuries on 7-11-2003. In cross-examination he has admitted that Rajendra and P.W.4 Sham were along with him when he was returning back after answering the natures call., He has admitted that his statement was recorded by the Police on the date when his father had succumbed to his injuries in the hospital. He has admitted that he had not narrated the incident to either his neighbours or the villagers till his statement was recorded by the Police. He states that P.W.4 Sham and Rajendra had tried to intervene in the matter but the accused had brandished axe and sticks and therefore. Rajendra and Sham had retreated.. 6. Prosecution has examined P.W.4 Sham who states that he along with his brother-in-law Rajendra had halted at the house of deceased Mahadeo on 1-11-2003. On the day of the incident i.e. on 2-11-2003, he, Rajendra and P.W.2 Keshav had gone for answering nature's call and they had heard accused Nos.1 to 6 abusing deceased Mabadeo. He states that he, Rajendra and P.W.2 Keshav therefore came to the scene of the offence and had seen accused Nos.l to 4 assaulting deceased Mahadeo and P.W.1 Kamlabai by axe. He states that he, Rajendra and P.W.2 Keshav therefore came to the scene of the offence and had seen accused Nos.l to 4 assaulting deceased Mahadeo and P.W.1 Kamlabai by axe. Accused Nos.5 and 6 had assaulted deceased Mahadeo by sticks. P.W.1 Kamlabai had tried to intervene and at that time accused No.1 had assaulted her by an axe. He stated that he, P.W.2 Keshav and Rajendra had also tried to intervene but that time accused No.1 to 6 had rushed towards them. Since Mahadeo had received injuries, Mahadeo fell unconscious and thereafter he along with Rajendra and Dadamo had taken Kamlabai and Mahadeo to the Primary Health Centre at Wattigodri and from there to Primary Health Centre at Pachcd. They were advised to shift Mahadeo to the Ghati Hospital at Aurangabad. He states that on 3-11-2003 he returned back to his house. In Cross-examination omission has been dilly proved that he bad not stated that P.W.2 Keshav had also accompanied Rajendra when they had gone for answering the nature's call. Omission has also been proved that he had not stated in his statement that accused Nos. 1 to 6 were abusing Mahadeo. Omission has been duly proved that he had not stated that he, Rajendra and P.W.2 Keshav had attempted to intervene and at that time the accused had rushed towards them. Omission has been duly proved that he had not stated in his statement that P.W.1 Kamlabai had also intervened and at that time accused No.1 had assaulted her by axe. In further cross-examination he admits that he had witnessed the incident from a distance of 8 to 10 ft. and he has learnt that his father had lodged a report at Police Station Gondi On 3-11-2003. 7. Prosecution has also examined P.W 3 Pralhad who states that he had been to his field and had returned back at about 3.00 p.m. and had seen a quarrel between deceased Mahadeo and accused Nos.1 and 2. He had intervened in the quarrel and then in the evening at about 6.30 p.m. while he was returning to his house he had seen deceased Mahadeo being taken to the Primary Health Centre at Wadigodri in a bullock-cart and at that time he had enquired from P.W.1 Kamlabai about the incident and P.W.1 Kamlabai had informed him that. He had intervened in the quarrel and then in the evening at about 6.30 p.m. while he was returning to his house he had seen deceased Mahadeo being taken to the Primary Health Centre at Wadigodri in a bullock-cart and at that time he had enquired from P.W.1 Kamlabai about the incident and P.W.1 Kamlabai had informed him that. accused Nos.1 to 6 had assaulted her and her husband by axe and sticks on account of the quarrel in respect of allotment of grazing land. In cross-examination he bas admitted than till 7-11-2003 he had not narrated the incident to anyone. 8. At the outset. we may say that the evidence of P.W.3 Pralhad in respect of what P.W.1 Kamlabai told him would be hearsay evidence as P.W.I Kamlabai in her evidence does not state that she had narrated the incident to P.W.3 Pralhad in fact the presence of P.W 3 Pralhad is net referred to at all by any of the witnesses. 9. In respect of the evidence of prosecution witnesses it is urged before us by the leamed Counsel for the appellants that there is enormous delay in lodging the F.I.R. and which delay has not been explained by the prosecution witnesses. It is urged before us that the incident in question occurred on 2-11-2003 1.vhile the F.I.R. came to be lodged en 611-2003. It is true that the report came to be lodged by P.W.1 Kamlabai on 6-11-2003 i.e. after four days of the incident. According to P.W.1 Kamlabai there was delay in lodging the F.I.R. because she was attending to her husband Mahadeo in the hospital. However the evidence of prosecution reveals that P.W.4 Sham., P.W.2 Keshav and one Rajendra had visited the hospital and therefore we find it inexplicable that though these witnesses claim to be eye-witnesses to the incident yet no report came to be lodged by them. The explanation of P.W.1 Kamlabai therefore for the delay in lodging the report does not appear to be satisfactory. P.W.1 Kamlabai also does not show the presence of P.W.2 Keshav and P.W.4 Sham at the time of the incident. She refers to the presence of P.W.4 Sham and one Rajendra after the incident was over when she and her husband were being taken to the hospital. She does not refer to the presence of P. W.2 Keshav at all. P.W.1 Kamlabai also does not show the presence of P.W.2 Keshav and P.W.4 Sham at the time of the incident. She refers to the presence of P.W.4 Sham and one Rajendra after the incident was over when she and her husband were being taken to the hospital. She does not refer to the presence of P. W.2 Keshav at all. We therefore find that no reliance at all can be placed on the testimony ofP.W.2 Keshav and P.W.4 Sham who claim to be the eyewitnesses as firstly their presence is not referred to by P.W.1 Kamlabai at the time of the incident. Both Keshav and P.W.4 Sham claim that they had intervened in the dispute and P.W.4 Sham claims to have witnessed the incident from a distance of 8 to 10ft. and in such circumstances, we find it difficult to believe that P.W.1 Kamlabai would not refer to the presence of P.W.4 Sham and P.W.2 Keshav. Secondly, the statement of P.W.2 Keshav and P.W.4 Sham came to be recorded on 7-11-2003 after death of deceased Mahadeo. There is thus enormous delay in the recording of the statement and in lodging of the report to the Police in respect of the assault on deceased Mahadeo and injured P.W.1 Kamlabai and therefore, according to us, no reliance at all can be placed on the testimony of P.W.2 Keshav and P.W.4 Sham. 10. In respect of the testimony of P.W.1 Kamlabai it is urged before us by the learned A.P.P. appearing on behalf of the State that P.W.1 Kamlabai is an injured witness and despite the delay in lodging the report, the evidence of P.W.1 Kamlabai can be relied upon for sustaining the conviction. Prosecution has examined P.W.8 Dr. Taher Nomani who had examined P.W.1 Kamlabai on 10-11-2003 and had noticed the following external injury: "C.L.W. on scalp head, size 2.5 cms x 1/2 cms. x 1/2 cm. direction linear, nature of injury simple, probable weapon hard and blunt." He has accordingly issued the certificate at Exh.54. Perusal of the testimony of P.W.S Dr. Nomani and the perusal of the certificate Exh.54 reveals that P.W.8 Dr. Nomani has not referred to the age of the injury. In the absence of any evidence in respect of age of the injury, it is extremely difficult for us to hold that P.W.1 Kamlabai had sustained the injury on 2-11-2003 i.e. at the time of the incident. Nomani and the perusal of the certificate Exh.54 reveals that P.W.8 Dr. Nomani has not referred to the age of the injury. In the absence of any evidence in respect of age of the injury, it is extremely difficult for us to hold that P.W.1 Kamlabai had sustained the injury on 2-11-2003 i.e. at the time of the incident. As pointed out by us above, the F.I.R. came to be lodged on 6-11-2003 and no explanation has been tendered by the prosecution as to why P.W.1 Kamlabai was referred for medical examination on 10-11-2003. Thus, P.W.1 Kamlabai had been examined by the Medical Officer after eight days of the incident. In the absence of any evidence in respect of the age of the injury, according to us, it cannot be held that P.W.1 Kamlabai had sustained the injury at the time of the incident. The delay in reporting the matter to the police casts a serious doubt in respect of the claim of P.W.I Kamlabai and others of having witnessed the incident. The weapons are alleged to have been seized at the instance of the appellants but the report of the Chemical Analyser shows that no blood was detected on the three axes and the three sticks. Thus, no nexus is established between the recovery of the weapons and the injuries sustained by deceased Mahadeo. 11. In our considered opinion therefore no reliance at all can be placed on the testimony of P.W.1 Kamlabai, P.W.2 Keshav and P.W.4 Sham who have been examined by the prosecution as eye-witnesses. According to us, the appellants therefore would be entitled to be given the benefit of doubt. 12. Criminal Appeal No.786 of 2004 and Criminal Appeal No.225 of 2005 are allowed. The conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith if not wanted in any other case. Fees payable to Mr. P.S. Dighe, learned Counsel appointed on behalf of appellants in Criminal Appeal No.225 of 2005 is quantified at Rs.5,000/ Appeals allowed.