JUDGMENT 1. - These appeals have been preferred against the judgment and order dated 25.01.2002 passed by the learned Additional District and Sessions Judge No. 1 (Fast Track), Kota (hereinafter referred as 'the Trial Court'), whereby, accused - appellant No. 1, Devendra Pathak has been convicted and sentenced to suffer imprisonment for life for commission of offence under Section 302 I.P.C. and appellants Avinash Pathak and Pradeep Jain have been convicted and sentenced to suffer imprisonment for life for commission of offence under Section 302/34 I.P.C. In Appeal No. 243/2002, appellant Mukesh @ Teekam Chand has been convicted and sentenced to suffer imprisonment for life for commission of offence under Sections 302/34 IPC. 2. The prosecution story is that on 23.07.1988 at about 10.00 p.m. four persons came to the house of the deceased Mahendra @ Hari and one of them namely Devendra Pathak entered the premise of the house of the deceased and pressed the bell. On hearing the ringing of the bell, the deceased who was watching T.V. along with his father came out, followed by his father, Madan Lal Mittal. While the father of the deceased came out from the room, he stood on the balcony and saw the occurrence therefrom wherein Devendra Pathak inflicted two knife injuries in the chest of the deceased and on his coming out from the room, the assailants ran away. The father of the deceased, P.W. 1, Madan Lal Mittal called Arvind Tiwari, his tenant, who came on spot and both of them took the injured to the hospital. In the hospital, a police constable came at about 11.20 p.m. on the same day to whom a written complaint was furnished by P.W. 1 who took it to the Police Station. On the basis of this complaint of P.W. 1, F.I.R. came to be registered at about 11.40 p.m. The Investigating Officer collected the evidence, such as prepared the site plan, recovered the clothes of the deceased, the knife, a weapon used in the commission of the crime and recorded the statements of the witnesses under Section 161 Cr.PC. The Investigating Officer arrested accused Devendra and Mukesh @ Teekam Chand on 24.07.1988 and accused Avinash Pathak on 20.09.1988 and presented the challan before the court for alleged commission of offences under Section 302 I.P.C. in respect of accused Devendra Pathak and 302/34 I.P.C. in respect of other accused. The Investigating Officer arrested accused Devendra and Mukesh @ Teekam Chand on 24.07.1988 and accused Avinash Pathak on 20.09.1988 and presented the challan before the court for alleged commission of offences under Section 302 I.P.C. in respect of accused Devendra Pathak and 302/34 I.P.C. in respect of other accused. The prosecution cited 21 witnesses to prove the guilt against the accused. Out of these witnesses, witness No. 1 has been cited as eye witness to prove the occurrence and witnesses Nos. 2 to 7 cited in the challan, to prove that accused were roaming near the house of the deceased. Witnesses Nos. 8 and 9 have been cited to prove the seizure of blood stained shirt of the accused. Witnesses Nos. 10 and 11 have been cited by the prosecution to prove the recovery of the knife, the weapon used in commission of offence. Witness No. 12 is a doctor. Witness No. 13 is a photographer and other witnesses are the police witnesses including the Investigating Officer. The Trial Court framed the charges against the accused. They pleaded not guilty and were put to trial. 3. The prosecution has examined only 17 witnesses out of 21 witnesses and out of the 17 witnesses, P.W. No. 2 and 5, Rajendra Kumar and Devendra Verma, respectively who have been cited to prove that accused were roaming near the house of the deceased, were declared hostile. Four witnesses have not been examined and one of them is witness No. 8 Radheyshyam who was to prove the seizure of the blood stained shirt of the accused which he was wearing at the time of occurrence. 4. The prosecution led the evidence before the Trial Court and the Trial Court on appreciation of the evidence came to the conclusion that the prosecution has not been able to prove the seizure memo of the knife and despite noticing the probabilities in the prosecution case, the Trial Court held that the prosecution has proved the commission of offences by the accused and recorded findings of conviction to sentence. 5. Appeals have been preferred by the appellants on the ground that the Trial Court has not legally appreciated the evidence and that the prosecution has failed to connect the accused with the weapon used for commission of the offence. The disclosure memo as well as the recovery memo of the knife is not worthy of any legal evidence. 5. Appeals have been preferred by the appellants on the ground that the Trial Court has not legally appreciated the evidence and that the prosecution has failed to connect the accused with the weapon used for commission of the offence. The disclosure memo as well as the recovery memo of the knife is not worthy of any legal evidence. The discrepancies, probabilities and loopholes which have come in the prosecution story and the statements of the witnesses have not been properly appreciated by the Trial Court and thus has erroneously punished the appellants. 6. We have heard the learned counsel for the parties and perused the record. 7. As per the prosecution version information of the occurrence was received in the Police Station by the S.H.O. from the Control Room that incident has taken place in House No. 1-D-20, Talwandi, Kota. On receiving this message, the S.H.O. entered it in the Rojnamcha and proceeded on spot along with few police personnel in a police jeep. Mehmood Khan, prosecution witness was also one of the members of the team who went along with the S.H.O. to the spot. On spot, the S.H.O. found that the injured has already been taken to the hospital by his father, therefore, he went along with the team to the hospital. This fact has not been corroborated anywhere in the evidence. 8. However, another aspect shown by the prosecution is that after the occurrence, the injured was taken to the hospital by P.W. 1, Madan Lal Mittal, father of the deceased and one Arvind Tiwari, tenant of father of the deceased. He was admitted in the hospital at about 10.45 p.m. A police constable namely Mehmood Khan came there at the instance of the doctor at 11.20 p.m. The father of the deceased, P.W. 1 furnished a written report to the constable at 11.20 p.m. On the basis of this report, F.I.R. was registered indicating that four boys-accused came on spot and one of them namely Devendra Pathak came in the premise of the house of the deceased and pressed the bell to call the deceased. At the time of ringing of the bell, the deceased and his father, P.W. 1, were seeing the television in the room and all other members of the family were not present at home. On hearing the ringing of the bell, deceased Mahendra @ Hari came out of the room. At the time of ringing of the bell, the deceased and his father, P.W. 1, were seeing the television in the room and all other members of the family were not present at home. On hearing the ringing of the bell, deceased Mahendra @ Hari came out of the room. P.W. 1 followed the deceased and saw the occurrence while standing at the gallery of the first floor of the house. Accused Devendra Pathak inflicted knife injuries on the chest of the deceased. On seeing this, P.W. 1 called Arvind Tiwari on spot and both of them picked up the injured and took him to the hospital. 9. Learned counsel for the appellants have attacked the judgment of the Trial Court mainly on the ground that the Trial Court has failed to appreciate the evidence,collected by the prosecution and the statements of the witnesses recorded before the Trial Court. We will take up one by one all the evidence which have been led by the prosecution. 10. The prosecution has cited Radheyshyam, witness to prove the seizure of the shirt used by the accused Devendra Pathak. This witness has been dropped. The accused Devendra Pathak was taken in custody on 24.07.1988. He made a disclosure statement on 27.07.1988 at 9.45 a.m. which was recorded. On the basis of his disclosure statement, knife was recovered from the Almirah in the house of the accused Devendra Pathak, being kept concealed in the books. The recovery memo was prepared at 11.15 a.m. Perusal of the recovery memo shows that the knife is shown to have been recovered but not blood stained. Description of the knife though has been shown but after the seizure of the knife, a note has been appended to make the knife as blood stained. P.W. 15 Surendra Kumar Sharma, is a witness to prove the recovery memo. He in his statement has stated that the knife was shown to him after recovery and not recovered in his presence. P.W. 7, Arun Kumar Gupta, another witness of recovery memo supports the prosecution. Clothes of the deceased were seized but the prosecution did not seize the clothes of Madan Lal Mittal, father of the deceased, who has stated in his statement that his clothes were also got blood chocked while carrying the accused to the Hospital. 11. P.W. 7, Arun Kumar Gupta, another witness of recovery memo supports the prosecution. Clothes of the deceased were seized but the prosecution did not seize the clothes of Madan Lal Mittal, father of the deceased, who has stated in his statement that his clothes were also got blood chocked while carrying the accused to the Hospital. 11. On appreciation of the evidence led by the prosecution, we find that the evidence of Prahlad, P.W. 6 is not credit worthy for the simple reason that he has stated in his statement that he was taken in custody by the police and kept in confinement for 24 hours and thereafter his statement was recorded. It casts a serious cloud that he has been pressurised to make the statement. Another loophole in the prosecution story is that Arvind Tiwari, who is the tenant of the father of the deceased, was called by P.W. 1 immediately after the occurrence and appeared on spot. He along with P.W. 1 took the deceased to the hospital. He was all available with the prosecution but his statement was recorded by the Investigating Officer on 14.10.1988 whereas the occurrence took place on 23.07.1988. The prosecution has not explained the reasons as to why statement of Arvind Tiwari could not be recorded or what prevented the prosecution to record the statement. Such a statement also cannot be said to be natural and having any legal evidentiary value, being recorded after two months and twenty days from the date of occurrence. The delay in recording the statement of the prosecution witness is not free from suspicion. The Supreme Court, dealing with the statement recorded with the delay of two days of the occurrence, in the case title Ramreddy Rajeshkhana Reddy and Anr. v. State of Andhra Pradesh, reported in AIR 2006 SC 1656 , observed as under : "4. The High Court, however, did not agree with the said views of the learned Sessions Judge opining : At the outset, we must make it clear that we are not inclined to believe the evidence of PW 9, the alleged eye-witnesses to the occurrence who was examined by the police two days after the registration of the crime though he was present at the scene of the offence at the time of the inquest, he never chose to inform the police about the fact that he had witnessed the murder. 5. 5. Having gone through the testimony of the said P.W. 9, we are also of the opinion that the High Court was right in discarding his statement." 12. The Supreme Court has dealt with the same situation in case titled Balakrushna Swain v. State of Orissa decided on 09.02.1971, reported in AIR 1971 SC 804 , wherein the evidence was not relied upon by the Supreme Court being recorded after_.10 or 11 days from the date of occurrence. 13. There is no other eye witness except the father of the deceased, Madan Lal Mittal, P.W. 1. He has filed written report and submitted it in the hospital to police constable, Mehmood Khan. This situation has also been made controversial by the 1.0. itself. 1.0. has stated that on receiving the information from the Control Room, he went on spot and having not found the deceased there, he went to the hospital whereas Madan Lal Mittal, P.W. 1, does not state anywhere that 1.0. camp to the hospital. He only says that constable Mehmood Khan came and he made written report to the constable. On the basis of this report, F.I.R. No. 96/1988 was registered at 11.40 p.m. Copy of the F.I.R. was received by the Magistrate on 26.07.1988. The prosecution has not explained as to why the report could not be sent to the Magistrate immediately the next day i.e. 24.07.1988. The delay itself also casts a cloud on the prosecution story for managing the witnesses or suppressing tIe genesis of the occurrence. 14. P.W. 1, Madan Lal Mittal, the sole eye-witness in his statement though has stated that he immediately followed the deceased when he was called by accused Devendra Pathak but in the cross-examination he has stated that when he heard the voice of the ringing of the bell, he and the deceased were watching T.V. Deceased went out. He thereafter, switched off the T.V., put the clothes and after about three minutes came out from the room and saw the occurrence, standing at the gallery. The prosecution has not been able to establish that how much time was taken by the accused to cause the injury or for how much time this occurrence continued. 15. Four accused were on spot as per prosecution version. The prosecution has not been able to establish that how much time was taken by the accused to cause the injury or for how much time this occurrence continued. 15. Four accused were on spot as per prosecution version. Two of them caught hold of the deceased from the arms and third from the neck and Devendra Pathak inflicted him two knife injuries. It can be gathered that not much time could have taken place to cause an occurrence what to speak of three minutes. The prosecution was under obligation to explain this situation. P.W. 1 has stated that while carrying the deceased to the hospital his clothes got blood chocked. Why the prosecution has not seized the clothes of P.W. 1 to connect the chain of events that he was the person present on spot who has taken the deceased to the hospital, the Prosecution has not disclosed the reasons as to why it was not necessary to tl up this loophole. This casts a cloud with regard to the role of the P.W. 1. 16. So, far as the disclosure statement and recovery memo is concerned, on the basis of the disclosure made by the accused Devendra Pathak, recovery has been made. The description of the knife has been shown that the size of its blade is 13 c.m. and no other description with regard to the handle has been described therein. In the recovery memo, the knife has also not been shown as blood stained. However, to make it more doubtful, after seizure of the knife, writing has been made that the knife is blood stained. Not only this, the knife was seized and sent to the malkhana and from the malkhana to the F.S.L. Prosecution has failed to prove that which prosecution witness took the knife to the F.S.L. from malkhana. The seal with which it was sealed is absent in the prosecution case. The seal was to be kept preserved by the prosecution by keeping it on the superdnama of an independent witness. The carrier of the sealed knife is an important witness as the knife recovered was found without blood stains. The Trial Court had rejected this evidence and rightly so. 17. The recovery of the knife has also been disbelieved by the Trial Court which we uphold as the prosecution has not successfully discharged its burden to prove it beyond reasonable doubt. 18. The Trial Court had rejected this evidence and rightly so. 17. The recovery of the knife has also been disbelieved by the Trial Court which we uphold as the prosecution has not successfully discharged its burden to prove it beyond reasonable doubt. 18. After this evidence, there remains evidence of sole eye witness i.e. P.W. 1, Madan Lal Mittal. There is no corroboration of the statement of P.W. 1 with any other witness, which also suffers from various discrepancies, as mentioned above. 19. It is settled provision of law that it is but natural that minor discrepancies do occur in the prosecution case and have nct to be taken into consideration for recording finding that the prosecution has failed to make out the case beyond shadow of doubt. But in the present case, the discrepancies and the loopholes which we have noticed are vital. The prosecution has not been able to fill up the lacunae and loopholes and connect the accused with the commission of offence. The loopholes and discrepancies are so glaring that it is unsafe to record findings of conviction and sentence as the prosecution has not been able to discharge its duty while investigating the case. 20. The punishment can be awarded if the prosecution proves the case beyond shadow of doubt, which has not been done. Therefore, we feel that it is a fit case where benefit of doubt should be given to the accused. Therefore, for the aforesaid reasons we extend the benefit of doubt to the accused-appellants and set aside the judgment of the Trial Court. The accused are acquitted of the charge by giving benefit of doubt. The accused Devendra Pathak, serving sentence in jail, shall be released forthwith. Bail bonds of other accused stand discharged. Appeals are accordingly allowed.Appeal Allowed. *******