JUDGMENT N.N.TIWARI, J These three appeals arise out of the common judgment passed by learned Additional District Judge, F.T.C. No. II, Jamshedpur in S.T.No. 9/2000 whereby the said appellants, namely, Dilip Kumar Rajak, Kundan Kumar Singh and Durga Rao have been convicted under Section 302 IPC for the charge of committing murder of Madan Prasad. The appellant Kundan Kumar Singh (Cr. Appeal No. 259/2003) has been also convicted under Section 27 of the Arms Act. The appellants Dilip Kumar Rajak (Cr. Appeal No. 178/2003) and Durga Rao (Cr. Appeal No. 184/03) have been found guilty under Sections 302/34 IPC. All the three accused-appellants have been sentenced to undergo life imprisonment and in addition thereto the appellant Kundan Kumar Singh has been sentenced to undergo seven years’ R.I under Section 27 of the Arms Act. These criminal appeals were heard together and are being disposed of by this common judgment. 2. The case was initiated on the basis of the fard beyan of one Dadan Prasad (PW5) given at his residence before the S.I of Kadma P.S on 31.5.1999 at 6.15 A.M. 3. The prosecution case in brief is that the informant used to sell ‘Dosa’ on a ‘Thela’ to earn his livelihood. His younger brother Madan Prasad (deceased) used to sell ‘Paw Bhaji’ on another ‘Thela’ near Co-operative Bank, Bistupur. They normally used to close sale and return at 11 o’ clock night to Nirmal Colony where they were residing. On 30.5.99 while the informant was going home with his ‘Thela’ at about 11 P.M a person stopped him near Shastri Nagar, Block No.3 in front of Durga Sweets and asked him to serve Dosa. The informant parked his ‘Thela’ by the road side and prepared Dosa. The said person paid Rs. 5/-and took delivery of Dosa. In the meanwhile, one Dilip Rajak who was sitting near Sudha Dairy Gumti along with 5-6 persons, demanded two Dosas. He identified other two persons as Durga Rao and Kundan. The remaining three persons were residents of that locality to whom he identified by face. On the order of Dilip Rajak while he was preparing Dosa, his younger brother Madan, who was returning home along with his servant, whose name is also Madan, arrived with his ‘Thela of Paw Bhaji’. Seeing the Thela of his brother, one person sitting there, asked for two Paw Bhajis. On the order of Dilip Rajak while he was preparing Dosa, his younger brother Madan, who was returning home along with his servant, whose name is also Madan, arrived with his ‘Thela of Paw Bhaji’. Seeing the Thela of his brother, one person sitting there, asked for two Paw Bhajis. The servant-Madan replied that they already took Dosa, Paw Bhaji is finished. On that reply all the persons rushed towards the servant and thrashed him. When the informant’s brother Madan tried to rescue his servant, the said persons also thrashed him and went away. Some persons passing by also stopped and witnessed the occurrence. After some time when the informant and his brother along with his servant proceeded towards home and reached near ‘Sadhu Tal’, on the main road, they heard the sound of foot steps following them. When the informant turned, he saw that Dilip, Durga and Kundan along with other three persons were rushing towards them. In the meanwhile they reached there and pounced upon Madan. Kundan uttered as he has dared to assault his brother, he would not spare him. Kundan then took out a pistol from his waist. The other accused persons surrounded Madan, catch hold of him and Kundan fired from behind on the back of Madan. 4. On the basis of the said statements, the police registered a case under Sections 302/307/34 IPC and Section 27 of the Arms Act. The police thereafter went to Tata Main Hospital where the dead body of the deceased was lying in the mortuary and prepared inquest report. The dead body was sent for post mortem to the Government Hospital. 5. The police took up investigation and on completion thereof submitted charge sheet against the accused-appellants. The Chief Judicial Magistrate, Jamshedpur took cognizance of the said offences and committed the case to the Court of Session. The charges were framed against the said accused appellants under Sections 302/307/34 IPC. Against Kundan Kumar Singh, an additional charge under Section 27 of the Arms Act was framed. The accused appellants pleaded not guilty and claimed to be tried. 6. The prosecution altogether examined twelve witnesses in order to bring home the charges against the appellants. Out of them PW-3-Mukesh Rajak, PW-4-Vijay Kumar, PW-6-Shashi Pandey, PW-8-Bhola Pandey and PW-11-Som Nath Vishwas turned hostile. PW-1-Dr. Niranjan Rai was the Registrar of Tata Main Hospital, Jamshedpur. The accused appellants pleaded not guilty and claimed to be tried. 6. The prosecution altogether examined twelve witnesses in order to bring home the charges against the appellants. Out of them PW-3-Mukesh Rajak, PW-4-Vijay Kumar, PW-6-Shashi Pandey, PW-8-Bhola Pandey and PW-11-Som Nath Vishwas turned hostile. PW-1-Dr. Niranjan Rai was the Registrar of Tata Main Hospital, Jamshedpur. He was examined to prove that the informant was admitted to the hospital with injuries on his person. In course of treatment the informant suddenly left the hospital, against the medical advice. PW-2-Baban Prasad is the brother of the deceased and is a hearsay witness. PW-7-Madan Sao is the cultivator and claimed to be the witness of the occurrence. PW-9-Moti Lal Rajak is a witness to the inquest report. PW-10 is Dr. Lalan Chaudhary who had conducted autopsy on the dead body of Madan Prasad. PW-12-Subhash Rai is a formal witness. The investigating officer, however, has not been examined by the prosecution. 7. Learned Trial Court relying on the evidences of PW-5-Dadan Prasad, PW-7-Madan Sao as also the evidence of the Doctor (PW-10) found Kundan Kumar Singh guilty of firing at the deceased with a pistol and causing his death. Learned Trial Court also found the other two appellants guilty of catching hold of the deceased. Learned Trial Court held Kundan Kumar Singh guilty under Section 302 IPC and Section 27 of the Arms Act and other two appellants Dilip Kumar Rajak and Durga Rao under Section 302/34 IPC and convicted them accordingly. 8. The appellants assailing the impugned judgment of learned Trial Court, submitted that the prosecution has miserably failed to prove the aforesaid charges against the appellants beyond the shadow of all reasonable doubts and the conviction of the appellants is contrary to weight of evidence and is illegal and unsustainable. 9. Learned counsel for the appellants, one after the other, challenged the said judgment and advanced elaborate argument pointing out the deficiencies, improbabilities and contradictions in the prosecution case and evidences brought on record, delay in lodging the F.I.R, delay in sending the F.I.R to the Magistrate and failure of the prosecution in proving the charges against the appellants by admissible evidences. It has been submitted that the inquest report was prepared in the hospital, but the name of the accused and the weapon used in commission of offence were not disclosed and mentioned therein. It has been submitted that the inquest report was prepared in the hospital, but the name of the accused and the weapon used in commission of offence were not disclosed and mentioned therein. No blackening or tattooing remains of carbon or sign of causing wound by firing was found on the person of the deceased. Learned counsel submitted that there are fatal contradictions in the testimonies of the so called eye witnesses PW-5 and PW-7. I.O has not been examined and the defence has been seriously prejudiced in his absence in the dock. Ocular evidence has not been corroborated by medical evidence. Findings are not based on legal evidences. 10. Learned A.P.P, on the other hand, submitted that the occurrence took place in the night at 11 P.M on 30.5.99. The informant and the other family members were striving to save life of Madan. They rushed to the hospital and remained busy in the night. The FIR was lodged in the very next morning at 6.15 A.M. The delay in lodging the FIR is, thus, well explained. The inquest report does not require mentioning the name of the accused persons and as such non-disclosure of the name in the inquest report by the witnesses does not make any difference. He has further submitted that in the case of firing by an arm from a distance there may not be blackening/charring mark and absence of the same in the body of deceased Madan does not assume any importance. It has been further submitted that the prosecution has proved the charges against the appellants by producing the eye-witnesses PW-5 and PW-7 whose testimony is sufficient to hold the appellants guilty of the charges. The contradictions pointed out by the appellants are minor and not unnatural in view of the nature of the incident and background of the witnesses, the contradictions are not that vital to nullify the evidences. It has been submitted that learned Trial Court has properly appreciated the facts and the evidences on record and the finding is based on due appraisal of the evidences on record. 11. Having heard the parties, I appraised the evidences and material on record. I find from the statement of the prosecution witnesses that the appellant Kundan Kumar Singh fired at Madan from a close range is not supported by the medical evidence. 11. Having heard the parties, I appraised the evidences and material on record. I find from the statement of the prosecution witnesses that the appellant Kundan Kumar Singh fired at Madan from a close range is not supported by the medical evidence. In the post mortem report (Ext.3) the Doctor has not found any charring, tattooing or blackening mark or existence of unburnt gun powder on the dead body of the deceased. As per the Modi’s Text Book of Medical Jurisprudence and Toxicology in a case of firing from a close range or in actual contact, the surrounding skin is usually scorched and is charred and blackened by smoke or tattooed with unburnt grains of gun powder. According to Modi, in a case of firing, generally the entry wound and exit wound would be of different dimension. But in the instant case the Doctor has found the entry and exit wounds having same dimension and size. 12. PW-2 Baban Prasad, PW-5 Dadan Prasad were the witnesses to the inquest report which was prepared at 7 A.M, on 31.5.99, after recording of the alleged FIR, but they did not utter the names of the accused persons and the arm used in commission of the alleged offence. The version of PW-5 and PW-7 regarding the occurrence are contradictory, though they claimed to be the eyewitnesses of the occurrence. In State of Gujarat Vs. Patel Mohan Mulji & Anr. ( AIR 1994 SC 250 ) the Supreme Court has held that non-mentioning of the names of the accused to the Police or any inquest report in spite of the knowledge of the names of the accused persons and delay in recording of FIR suffer from serious infirmity which entitle the accused persons to be acquitted. 13. PW-7, who is said to be the injured witness, left the hospital in course of treatment against the medical advice. His statements are contradictory to the other eyewitness PW-5 and the medical evidence. 14. The fire arm allegedly used has not been recovered. The prosecution also failed to recover the projectile which should have been found at the P.O. 15. The prosecution failed to produce any evidence to prove that the dead body of Madan was brought to Tata Main Hospital (T.M.H) where the doctor declared him dead. That doctor has not been examined by the prosecution. The prosecution also failed to recover the projectile which should have been found at the P.O. 15. The prosecution failed to produce any evidence to prove that the dead body of Madan was brought to Tata Main Hospital (T.M.H) where the doctor declared him dead. That doctor has not been examined by the prosecution. PW-1, who treated PW-7 in T.M.H, is the Registrar of the Hospital. But he has not proved any such entry in the record of the hospital showing that Madan was brought to the hospital. Nothing has been brought on record to show that the dead body of Madan was kept in the mortuary of the Hospital. 16. The I.O of the case has not been examined. The inquest report prepared by him has not been proved. I find substance in the grievance raised by the defence that non-examination of I.O has caused serious prejudice to them. 17. According to the prosecution, after receiving fire arm injury Madan was profusely bleeding. Blood flown over ‘Thela’. But neither the blood stained ‘Thela’ nor the blood stained clothes of the deceased have been produced before the Court. Due to non-examination of the I.O, the defence could not confront the statements of the other witnesses regarding the place where the pistol was fired at Madan, the place where the dead body was lying, the reason for not seizing the blood-stained clothes, blood stained Thela and blood-stained earth, the reason for not seizing and making recovery of the incriminating pistol, the projectile from the P.O and the veracity of the statements of the witnesses made before him under Section 161 Cr.P.C on other important points. In Dharmbir Singh Vs. The State of Bihar [1991 (1) PLJR 558] it has been held by the Patna High Court that non-examination of the I.O for removing the doubts raised in the testimony of the witnesses results in denial of opportunity to the defence to test the veracity of the prosecution case as well as the veracity of the deposition of the prosecution witnesses and in such situation the accused is entitled to benefit of doubt. 18. Non-examination of the auto driver, who allegedly brought the dead body of the deceased to the hospital, also raised suspicion. There is no evidence on record to show the common intention of all the accused appellants to finish Madan. 18. Non-examination of the auto driver, who allegedly brought the dead body of the deceased to the hospital, also raised suspicion. There is no evidence on record to show the common intention of all the accused appellants to finish Madan. There is no allegation of holding any arm or taking any active part in the alleged assault even by slaps by other appellants. Even the motive suggested is not strong and plausible. The aforesaid circumstances further give rise to doubts in the reliability of the prosecution case. In State of Rajasthan Vs. Teja Singh & Ors. ( AIR 2001 SC 990 ) the Apex Court upheld the acquittal order passed by the High Court on the ground of delay of two days in sending the FIR to the Magistrate and for the lack of corroboration of evidence of the alleged eye-witnesses, who being the relatives of the deceased were interested. 19. Learned Court below has heavily relied on the testimonies of PW-5 Dadan Prasad and PW-7 Madan Sao without considering some of the major contradictions and deficiencies in the prosecution evidences including the evidences of PW-5 and PW-7. Though some of the contradictions were also noticed by learned Trial Court, but he observed that those are not the major contradictions. The deficiencies and circumstances give rise to serious doubts in the veracity of the prosecution case. It is true that in view of the attack and the injury suffered by the deceased and the individual overt act of the accused persons, there are possibilities of some discrepancies and contradictions, but I find that there are glaring and vital contradictions and discrepancies in the evidences of the eye-witnesses (PW-5 and PW-7) in the prosecution case. 20. In the State of Orissa Vs. Brahmanand ( AIR 1976 SC 2488 ), it has been held by the Apex Court that where in a murder case the entire prosecution case depends on the evidence of the person claiming to be the eye-witness and if this witness is not disclosing the name of the assailant for a day or half after the incident and explanation offered for non-disclosure is unbelievable, such non-disclosure is a serious infirmity and destroys the credibility of the evidence and the same is liable to be rejected. 21. 21. Having heard learned counsel for the parties and after scrutinizing and considering the evidences on record, I find much substance in the submissions of learned counsel for the appellants. 22. Firstly there is unexplained delay of lodging the F.I.R. According to the prosecution, the incident took place at 11 o’ clock at night on 30.5.1999. The informant (PW-5) and his brothers (PW-2 and PW-7) are said to have taken the dead body of the deceased firstly to their house and thereafter to Tata Main Hospital. They went to the hospital at about 12 o’ clock at night. Admittedly, there was a police post in the campus of the hospital, but neither the informant nor the hospital authorities informed the police about the occurrence. In paragraph 9 of his deposition the informant has stated that he returned from the hospital and deliberated with the neighbouring persons assembled there. The F.I.R was lodged at 6.15 A.M on the next day. The Supreme Court in Thulia Kali Vs. The State of Tamil Nadu ( AIR 1973 SC 501 ) has held that “first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained”. 23. Not only that, there was delay of two days in dispatching the F.I.R to the Court of the Magistrate. The occurrence took place in the town itself. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained”. 23. Not only that, there was delay of two days in dispatching the F.I.R to the Court of the Magistrate. The occurrence took place in the town itself. The Magistrate Court was at close proximity, but the F.I.R reached the Court on 2.6.99 after two days. Learned A.P.P submitted that the delay of two days was due to intervening Sunday and as such the delay is unexplainable and condonable. The Supreme Court in the State of Rajasthan Vs. Teja Singh (Supra) rejecting the said plea held that the delay of two days in sending the F.I.R to the Magistrate on the plea that there was intervening holidays cannot be a ground for condoning such delay. It was the requirement of law that the F.I.R should reach the concerned Magistrate without any undue delay. In the said case the Apex Court disbelieved the prosecution version for not producing the material evidences before the Court, for not seizing and producing the blood stained clothes, for not disclosing the name of the accused persons at the earliest and approved the order of acquittal recorded by the High Court. 24. For the reasons aforesaid, I find that not only non-examination of the I.O has caused serious prejudice to the appellants, but there are other serious omissions and deficiencies on the part of the prosecution and contradictory testimonies of the eyewitnesses which give rise to serious doubts in the veracity of the prosecution case. The appellants are entitled to the benefit of the said doubts. 25. In the result, these appeals are allowed. The judgment of conviction dated 17.1.03 and the order of sentence dated 24.1.03 passed against these appellants by Shri Akhileshwar Jha, learned Additional District & Sessions Judge, F.T.C-II, Jamshedpur, East Singhbhum in S. T. No. 9/2000 are set aside. The appellants are acquitted of the charges levelled against them. The appellant Kundan Kumar Singh (Cr. Appeal No. 259/2003), who is said to be in custody, is ordered to be set at liberty forthwith, if not required in any other case. Since the appellants Dilip Kumar Rajak (Cr. Appeal No. 178/2003) and Durga Rao (Cr. Appeal No. 184/2003) are on bail, they are discharged from the liabilities of their respective bail bonds.