JUDGMENT: This appeal is directed against the judgment, dated 05.09.2003 passed by the Sessions Judge, Nizamabad in SC.No. 462 of 2001 whereby and whereunder the appellant was convicted for the offence under Section 304-II of IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.1,000/-. 2. The appellant who was sole accused before the learned Sessions Judge was tried for the charge under Section 302 IPC and at the conclusion of the trial, he was found guilty for the offence under Section 304-II of IPC and was convicted and sentenced to punishment as mentioned above. 3. The prosecution case, in a nutshell, is as follows: The appellant and three others started construction of a check dam near Darlavagu village of Nizamabad District. The deceased-Bachamgari Shanker owns a land near the proposed check dam. The appellant and other contractors wanted to draw water to the said construction work from the bore-well of PW-3 (Katipalli Raji Reddy) through the land of the deceased. But the deceased did not agree for the said proposal. On 17.05.2001 while the deceased was away from the village, the accused and other contractors dug a channel through the land of the deceased and were drawing water. On 21.05.2001 at about 1.30 p.m. the deceased after returning to the village, went to his land and noticed the channel dug by the appellant and other contractors. He raised objection for digging the channel through his land and thereupon a tussle ensued between the appellant and the deceased. The appellant demanded the deceased to pay an amount of Rs.50/- which was due to him and on that the deceased paid an amount of Rs.30/- and promised to pay the remaining amount of Rs.20/- within a couple of days. It is said that that being annoyed by the words of the deceased, the appellant grew wild, abused the deceased in filthy language, beat him with hands and throttled his neck. The deceased fell down and became unconscious. The incident was witnessed by PWs.2 to 4 (V.Pedda Bhumaiah, Katipally Raji Reddy and B.Lasumaiah respectively). Immediately PWs.2 to 4 and one B.Sailoo lifted the deceased to the nearby road and tried to give him some water, but by that time, the deceased breathed his last. 4. The deceased fell down and became unconscious. The incident was witnessed by PWs.2 to 4 (V.Pedda Bhumaiah, Katipally Raji Reddy and B.Lasumaiah respectively). Immediately PWs.2 to 4 and one B.Sailoo lifted the deceased to the nearby road and tried to give him some water, but by that time, the deceased breathed his last. 4. On the same day at about 9.30 p.m. PW-1 (Bachamgari Poshavva) the wife of the deceased lodged a report about the incident in Tadwai Police Station. PW-8 (P.Bhasker Rao), the Sub-Inspector of Police registered a case in Crime No.35 of 2001 under Section 302 IPC. On the strength of the report lodged by PW-1, the offence was investigated into by PW-7 (Jaffer Javeed), the Inspector of Police. During the course of investigation PW-7 held inquest over the body of the deceased, examined the witnesses, dispatched the body of the deceased to PW-6 (Dr.Parameshwar) for conducting post mortem examination and on completing investigation, he filed charge sheet. 5. In the course of the trial before the learned Sessions Judge, Nizamabad, the prosecution in order to prove it's case, examined PWs.1 to 8 and marked Exs.P-1 to P-6. The appellant did not propose to examine any witnesses nor did he mark any documents on his side. The learned Sessions Judge, on a consideration of the entire evidence on record, arrived at the conclusion that the appellant was guilty for the offence under Section 304-II of IPC and accordingly convicted and sentenced him to punishment as mentioned above. 6. Before the trial Court PWs.2 to 4 who are said to be the eyewitnesses to the occurrence stated in their depositions that on 21.05.2001 at about 1.30 p.m. when the deceased visited his land and objected for digging a channel through his land, there ensued a quarrel between him and the appellant, during the course of which the appellant demanded the deceased to pay an amount of rS.50/- which was due to him, the deceased immediately paid Rs.30/- and promised to pay the balance of Rs.20/- within a couple of days and thereafter the accused grew wild and beat the deceased with hands and throttled the deceased, due to which the deceased became unconscious and fell down and subsequently he succumbed to the assault. 7. 7. PW-6, the Civil Assistant Surgeon, Area Hospital, Kamareddy who conducted autopsy over the dead body of the deceased and issued post mortem report Ex.P-5 stated in his deposition that he found the following ante mortem injuries: i) Four abrasions noted on the left side of neck measuring 1/2 to 1/4 cm x 1/2 to 1/4 cm. ii) Contusion over lower part of neck measuring 3 x 2 x 1 cm. iii) Scrotum is swollen and congested. iv) Penis is swollen and congested. According to PW-6, the death of the deceased was due to asphyxia on account of throttling within 24 to 48 hours prior to post mortem examination. 8. The learned Sessions Judge arrived at the conclusion that the evidence of PWs.2 to 4 who are the eyewitnesses is reliable and the same is consistent with the medical evidence and accordingly arrived at the opinion that the appellant is liable for punishment under Section 304-II of IPC but not for the charge under Section 302 IPC which was originally framed against him. 9. At the hearing of the appellant, the learned counsel appearing for the appellant would contend that there is inordinate delay in lodging the F.I.R. as well as forwarding the same to the Magistrate. The evidence of alleged eyewitnesses viz. PWs.2 to 4 consists of material inconsistencies and improbabilities and the appellant was falsely implicated at the instance of the remaining contractors who paid some amount to PW-1, the wife of the deceased and therefore, the order of conviction and sentence passed by the learned Sessions Judge cannot be sustained. 10. On the other hand, the learned Public Prosecutor appearing for the State would submit that the evidence of PWs.2 to 4, the eyewitnesses is trustworthy and reliable, absolutely they do not have any motive to implicate the appellant and as such, the order of conviction and sentence passed by the trial Court against the appellant has to be upheld. 11. I have given my anxious consideration to the submissions made by the learned counsel appearing for the appellant and the learned Public Prosecutor. 12. 11. I have given my anxious consideration to the submissions made by the learned counsel appearing for the appellant and the learned Public Prosecutor. 12. The main contention urged on behalf of the appellant is that the investigating agency in this case suppressed the true facts and at a belated stage at the instance of the contractors of the check dam falsely implicated the appellant for which PW-1, the wife of the deceased who received the money from the contractors yielded to the pressure exerted on her. 13. As regards this contention, it can be noticed that the incident in this case took place at 1.30 p.m. on 21.05.2001 and PW-1 lodged the report in Tadwai Police Station which is at a distance of 15 kms. at 9.30 p.m. and the same was received by the Magistrate at Kamareddy at 6.00 a.m. on the next day i.e. on 22.05.2001. Whether a certain amount of delay in lodging the F.I.R. is fatal to the case of the prosecution is a question of fact and it depends upon a given factual situation. In some cases even delay of some days in lodging the F.I.R. inconsequential, whereas in some cases, few hours delay also becomes fatal to the case of the prosecution. 14. In the instant case, PWs.1 to 5 have clearly stated in their depositions that the police arrived at the venue of the offence one hour after the incident on the same day. But, admittedly the report was lodged by PW-1 at 9.30 p.m. From the evidence of PWs.1 to 5, it is thus obvious that the police arrived at the venue of offence even before lodging F.I.R. by PW-1. They also stated that the police arrested the appellant on the same day soon after arriving at the scene of offence. But PW-7, the investigating officer stated in his evidence that the appellant surrendered voluntarily before him on 23.05.2001 at 3.00 p.m. Further admittedly one has to cross Kamareddy to reach Bikhnoor, where the Court of Judicial Magistrate of First Class is situated. According to the evidence of PW-7, the investigating officer, he received the F.I.R. at 11.30 p.m. on 21.05.2001, whereas it reached the Magistrate on 22.05.2001. Absolutely there was no proper explanation by the prosecution as to the delay in lodging of the F.I.R. as well as reaching the same to the Magistrate. 15. According to the evidence of PW-7, the investigating officer, he received the F.I.R. at 11.30 p.m. on 21.05.2001, whereas it reached the Magistrate on 22.05.2001. Absolutely there was no proper explanation by the prosecution as to the delay in lodging of the F.I.R. as well as reaching the same to the Magistrate. 15. In Jang Singh and others vs. State of Rajasthan1 it was laid down by the Apex Court that when there is no proper explanation in respect of the delay in forwarding the F.I.R. to the Magistrate, the same is fatal to the case of the prosecution. Similarly in Suresh Chaudhary v. State of Bihar2 the Apex Court held that inordinate delay of 11/2 days in sending the report to the Magistrate after the registration of the report, the said delay contributed to the doubtful circumstances surrounding the prosecution case in the absence of any explanation thereof. 16. Turning to the case on hand, the investigation commenced much earlier to lodging of the F.I.R. by PW-1 and therefore, the F.I.R. in this case which is marked as Ex.P-6 is hit by Section 162 Cr.P.C. and the same cannot be treated as F.I.R. in the eye of law. Further registering the F.I.R. much latter to the commencement of investigation given any amount of scope for introducing a concocted and distorted version. 17. Added to this, there are many improbabilities and inconsistencies in the prosecution version. According to PW-2 he was in the house till 12.00 noon and it is not understandable as to how he witnessed the incident which took place at 11.30 a.m. PW-4 also stated in his deposition that PW-2 came after the death of Shanker (deceased). It is also borne out from the evidence of PWs.2 to 4 that they belong to Congress Party, whereas the appellant belongs to Telugu Desam Party. 18. Another important factor which requires consideration is that PW-1 had categorically stated in the cross-examination that after the death of her husband, Narsa Reddy, Bhoomaiah, Bhom Reddy, Maisaiah, and Lingala Sailoo (the contractors of check dam) gave her an amount of Rs.10,000/- each for the maintenance of her children. PW-3 also admitted in the cross-examination that after the death of the deceased, the contractors of the check dam paid some amount to the family of the deceased, but the appellant did not pay any amount. PW-3 also admitted in the cross-examination that after the death of the deceased, the contractors of the check dam paid some amount to the family of the deceased, but the appellant did not pay any amount. The defence version is that since the appellant did not pay any amount to PW-1, he was falsely implicated by her in this case at the instance of the remaining contractors. The said theory is probabalised by the version of PWs.1 and 19. For what all discussed in the foregoing paragraphs, it is obvious that there is every scope for the investigating agency to introduce a new and coloured version on account of the commencement of the investigation much earlier to lodging of the F.I.R. by PW-1. The version that on account of a trivial quarrel relating to a debt of Rs.20/-, the appellant resorted to taking away the life of the deceased is quite unacceptable. There is positive evidence of PWs.1 and 3 to the effect that the contractors of the check dam paid Rs.10,000/- each to PW-1 and the appellant did not pay any amount. All these factors clearly indicate that it is quite unsafe to rely on the testimony of PWs.1 to 4 and the learned trial Court without properly scrutinizing their evidence and without examining the impact of the delay in lodging the F.I.R. as well as sending the same to the Magistrate convicted the appellant who in fact is entitled for benefit of doubt. The conviction recorded by the learned trial Court is misconceived and as result of improper appreciation of evidence. 20. In the result, the order of conviction and sentence passed by the Sessions Judge, Nizamabad by judgment, dated 05.09.2003 against the appellant is set aside and the appellant is acquitted. The fine amount, if any, paid by the appellant shall be refunded to him. The appeal is allowed.