JUDGMENT : S.L. KOCHAR. J : The appellant has preferred this appeal challenging the impugned judgment dated 12.8.1999 passed in S.T. No. 113/95 by learned II Additional Sessions Judge, Neemuch (M.P.), whereby convicted the appellant under section 302/34 of the Indian Penal Code (for short "the 1PC") and sentenced to RI for life with fine of Rs. 5,000/-. In default of payment of fine, he shall suffer additional RI for one year. 2. Briefly stated the prosecution case as unfolded before the trial Court is that on 20-3-1995 in the evening PW-6 Masum Ali had gone to bring his grand son (daughter's son) Inayat Khan and son-in-law PW-16 Hayat Khan to their field, which was situated behind Police Line, P.S. Baghana. Masum Ali saw Inayat Khan coming on bullock cart near the field of Chand Khan, and Hayat Khan was also coming while collecting goats. Inayat Khan on seeing him stopped the bullock cart and told him that on the same day Sushil alias Pappu s/o Naresh Pal Singh resident of Police Colony Baghana, had thrown Khutle (wooden log used in bullock cart to give support to luggage) of bullock cart near the well and also driven away the bullocks and on objection abused filthily in the name of mother and sister as well as issued threat to see him. Masum Ali replied that he will talk to Naresh Pal Singh and also admonish him, at that juncture at about 7:00 P.M. Sushil alias Pappu and present appellant Praveen alias Bablu, both brothers, came running from the side of Police Colony Baghana and appellant Praveen caught Inayat Khan from his back side, whereas Sushil alias Papu gave a knife blow on the neck. Masum Ali cried and objected them but Sushil gave second blow on the abdomen and also struck some knife blows on his person. Masum Ali and Hayat Khan rushed to catch them, whereupon both ran away towards Police Line. They took Inayat Khan immediately to the hospital. Near barrier No. 4 on the way to hospital, they disclosed about the incident to Munna s/o Nanne Khan and Dr. Mohammad Husain. In the hospital several persons of the locality assembled, there also he disclosed about the incident. PW-3 Dr. B. L. Boriwal examined the deceased and issued MLC report (Ex.P/2). He had also sent intimation (Ex.P/5) to police for making arrangement to record dying declaration. Mohammad Husain. In the hospital several persons of the locality assembled, there also he disclosed about the incident. PW-3 Dr. B. L. Boriwal examined the deceased and issued MLC report (Ex.P/2). He had also sent intimation (Ex.P/5) to police for making arrangement to record dying declaration. In hospital PW-1 Nayab Tehsildar Chandrapal Singh recorded dying declaration (Ex.P/1) of the deceased on 20-3-1995 at 8:10 P.M. in the night. Masum Ali lodged the report/Dehati Nalishi (Ex.P/8) on 0/95 number under section 307/34 of "the IPC" on the same day at 7:40 P.M. in Civil Hospital, Neemuch, by PW-18 A.S.I. Jawaharlal Soni. PW-7 Head Constable Yashwant Rao on the basis of Dehati Nalishi (Ex.P/8) registered First Information Report No. 73/1995 (Ex.P/11) in Police Station Baghana. Deceased succumbed to the injuries in the hospital, where Merg intimation/Dehati Nalishi (Ex.P/16) was recorded by A.S.I. PW-10 B.L. Mehar on 0 (zero) number in the night at 11:45 P.M. and original Merg intimation No. 11/1995 under section 174 of the Criminal Procedure Code (for short "the Cr.P.C.") Ex.P/26 was registered in Police Station by PW-7 Head Constable Yashwant Rao (it was proved in Court not by PW-7 Yashwant Rao Head Constable but by PW-18 T.I. Jawaharlal Soni. PW-10 B. L. Mehar after completing inquest inquiry (Ex.P/6), sent the dead body for postmortem examination with requisition form (Ex.P/18) and same was conducted by PW-3 Dr. B. L. Boriwal. Post-mortem report is Ex.P/3. Spot map Ex.P/10 was prepared at the instance of PW-6 Masum Ali, by Town Inspector PW-18 Jawaharlal Soni. Appellant was nabbed. The seized articles were sent to Forensic Science Laboratory. On completion of investigation, charge-sheet was filed only against the appellant showing the co-accused Sushil absconding. 3. Appellant abjured the guilt and pleaded his false implication, therefore, put to trial. He did not examine any witness in defence, whereas prosecution has examined 18 witnesses and adduced 28 documents to prove its case. Learned trial Court after recording the prosecution evidence and hearing both the parties, convicted and sentenced the appellant as described hereinabove. 4. We have heard the learned counsel for the parties and also perused the entire record carefully. He did not examine any witness in defence, whereas prosecution has examined 18 witnesses and adduced 28 documents to prove its case. Learned trial Court after recording the prosecution evidence and hearing both the parties, convicted and sentenced the appellant as described hereinabove. 4. We have heard the learned counsel for the parties and also perused the entire record carefully. It is submitted by the learned counsel for the appellant that dying declaration (Ex.P/1) is a concocted piece of evidence prepared after death of deceased and both the eyewitnesses were also not present at the scene of occurrence and became eyewitness later on, they are interested and partisan witnesses. 5. In oppugnation, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 6. The moot question for determination by us whether the written and oral dying declaration of deceased as well as eye-witnesses account are fully reliable to establish presence and participation of the appellant in the incident and whether appellant would be liable for conviction of murder of deceased Inayat Khan with the aid of section 34 of "the IPC"? 7. PW-14 Head Constable Mangilal has deposed that in P.S. Baghana on 20-3-1995 he received telephone of unknown person informing that Inayat Musalman was assaulted by knife by son of some Policewala and he was taken to the hospital. It was also informed that there was enough crowd assembled in village Baghana. This information was recorded in daily diary No. 748/95 and Town Inspector PW-18 Jawaharlal Soni was apprised with the intimation, copies of daily diary were, though, filed along with the charge-sheet but were not got proved by these witnesses for the reason best known to the prosecution, but it is clear from the statement of both these witnesses and other oral and documentary evidence that incident occurred in the field of Chand Khan situated behind the Police Line, P.S. Baghana meaning thereby near to Police Station but neither eyewitnesses preferred to go to police station and lodged the report immediately nor sent anybody to lodge the report. In registered First Information Report (Ex.P/11) proved by PW-7 Head Constable Yashwant Rao, the distance of police station from the place of incident is not mentioned in column No. 5 which is meant for this purpose. In registered First Information Report (Ex.P/11) proved by PW-7 Head Constable Yashwant Rao, the distance of police station from the place of incident is not mentioned in column No. 5 which is meant for this purpose. It is clear from the FIR (Ex.P/11) that intimation about incident was received in the police station on 20-3-1995 at 19.20 hours (7:20 P.M.) recorded in daily diary Entry No. 748 [see column No. 3(c) of FIR (Ex.P/11)]. It is clear from the statement of Head Constable Mangilal (PW-14) that name of the appellant was not disclosed in telephonic information. PW-18 T.I. Jawaharlal Soni has deposed in paragraphs 7 and 8 of his deposition that some telephonic information was received in the police station, which was recorded in daily diary but he had not gone to police station and also did not see entry in daily diary and directly went to hospital and that Entry No. 782 in daily diary was regarding his return to the police station. He has also stated that entry about going to hospital was made in daily diary by H.C.M. (probably PW-14 Head Constable Mangilal). Entry in daily diary No. 782 was also not filed and got proved by the prosecution. 8. PW-14 Head Constable Mangilal has deposed that he intimated T. I. Shri Jawaharlal Soni (PW-18) about telephonic intimation but it is not clear from the statement of this witness as well as Shri Jawaharlal Soni as to how and where Jawaharlal Soni (PW-18) was made aware of the intimation of assault by knife to deceased Inayat Khan. T. I. Shri Jawaharlal Soni (PW-18) has deposed in paragraph-8 that if anybody given Information about assault by knife, on this basis the offence under section 324 of "the IPC" would be registered and if injury caused on vital part of the body, the offence would be registered under section 307 of "the IPC" but in the instant case crime was not registered (FIR) and no explanation was given for not registration of the crime after receiving information on telephone. According to PW-14 Head Constable Mangilal, daily diary entry was recorded at Serial No. 748/95, thereafter Shri Soni (PW-18) was apprised but Shri Soni has stated in paragraph-8 in his deposition that he did not see the daily diary entry and went directly to the hospital, thereafter returned back to police station and entry to this effect was recorded in daily diary No. 782. Copy of this entry of daily diary was also not got proved by the prosecution, which is important for appreciation of events chronologically, on the basis of contents and time mentioned therein. PW-14 Head Constable Mangilal received telephonic message just after 20 minutes of the incident and he has also deposed about collection of crowd in village Baghana. Under these circumstances either PW-6 Masum Ali or PW-16 Hayat Khan, eyewitnesses, maternal grand-father and father of deceased respectively, could go to the police station for lodging the report which could have not taken much time looking to distance of the police station from the place of incident. Both these eyewitnesses are not simple rustic villagers. PW-6 Masum Ali is a retired police personnel and served in police department for 35 years, during his tenure he investigated the cases as admitted by him in paragraph-3 of his deposition. PW-16 Hayat Khan was also serving in narcotic department and stated in paragraph-3 that on the date of incident he was on duty from 6:00 P.M. to 2:30 A.M. in the night and his duty card was also punched (entry for duty was made in the duty card). Under these circumstances as to how he could remain present on the place of incident at 7:00 P.M., he has failed to explain this position. Both the eyewitnesses have admitted about meeting with several persons before taking the Inayat Khan to police station, but they did not ask anybody to go and lodge the report immediately in the police station, which was only 200 feet away from the place of incident, as stated by eyewitness PW-6 Masum Ali in paragraph-9 of his deposition. Masum Ali (PW-6) was on bicycle. Masum Ali (PW-6) was on bicycle. In cross-examination paragraph-9, specific question was put to Masum Ali by defence counsel as to why he had not gone to the police station, though same was situated at the distance of 200 feet, for lodging the report, on which he replied that condition of deceased was serious and it was necessary to take his care, but we are not impressed by his this explanation in view of his own statement that from the spot in the bullock-cart deceased was brought by his father PW-16 Hayat Khan at their house and was taken on motorcycle driven by one Rahim (not examined) and by father PW-16 Hayat Khan and not by this witness Masum Ali (PW-6) but later on he went to hospital on bicycle, therefore, if he was an eyewitness and knew the appellant, in natural course being a retired police personnel immediately could go to the police station situated nearby and lodge the report or both the eyewitnesses could have sent anybody of their confidence for lodging the report, but both had not taken any step. In our considered view this was highly abnormal conduct of both the eyewitnesses, and Dehati Nalishi was brought into existence in ante date and time, just to explain delay. Supreme Court in case of Thulia Kali vs. The State of Tamil Nadu, AIR 1973 SC 501 , while considering the importance of FIR, has observed as under in paragraph-12 :- 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 benefit 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. 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 benefit 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. 9. PW-16 Hayat Khan, father of deceased, has also admitted in paragraph-5 that police station was situated near to the place of incident but neither he nor his father-in-law PW-6 Masum Ali went to police station for lodging the report, whereas same could have taken hardly only 5 to 7 minutes. Hayat Khan (PW-16) in paragraphs 5 and 6 has admitted that on the way they had meeting with Dr. Mohammad Husain and on the way to Civil Hospital there were some other hospitals but he did not try to get first aid or primary treatment to deceased for stopping bleeding, which was profused. Hayat Khan (PW-16) has contradicted the statement of Masum Ali (PW-6) regarding reaching at the police station prior to reaching of the police in the hospital. In cross-examination paragraph-7 Hayat Khan (PW-16) has deposed that after reaching at hospital within 10 to 15 minutes, police reached on the information sent to police on telephone by Dr. Boriwal and he disclosed to Dr. Boriwal that his son was assaulted by knife meaning thereby he did not disclose the name of assailant. He has also stated that Masum Ali (PW-6) reached in the hospital after arrival of police, whereas according to Masum Ali police reached in the hospital after his reaching and this was stated by him when specific question was put to him by defence counsel that as to why he did not go to police station for lodging the report after reaching at the hospital and handing over the deceased to doctor for treatment, on which he replied that by that time police reached there and recorded his report. All these statements of both the witnesses are contradictory to each other and we are not convinced with their explanation for not lodging the report in the police station, looking to the totality of the circumstances and they being police personnel aware of the importance of FIR. 10. All these statements of both the witnesses are contradictory to each other and we are not convinced with their explanation for not lodging the report in the police station, looking to the totality of the circumstances and they being police personnel aware of the importance of FIR. 10. Hayat Khan (PW-16) has also admitted in paragraph-7 that while going to Civil Hospital from Baghana by road, on the way there was railway police station as well as town police station but no report was lodged in either police station. He again tried to explain this situation that they reached to Civil Hospital from a different road going from behind the Khurshid talkies but when again in paragraph-8 he was asked that after handing over Inayat Khan to doctor as to why he did not go to Baghana police station or railway police station or town police station, he failed to explain this situation. He also did not give any explanation as to why he could not lodge the report about the incident on telephone or sent to his father-in-law to Neemuch town police station to lodge the report. He has also admitted that at the hospital several Muslims and persons of other community assembled. He was confronted regarding omission of fact in his case diary statement about presence of members of other community at the hospital, but he failed to explain the same. He has also stated that while taking to his son to police station, his clothes smeared with blood but his clothes and bullock-cart, on which incident occurred, were not seized by the police. 11. The defence has given specific suggestion to both the eyewitnesses that they were not present on the scene of occurrence and concocted a false story and main architect was PW-6 Masum Ali, a retired police personnel. The prosecution has failed to explain as to why blood stained clothes of Hayat Khan and bullock cart were not seized, which could have strengthen the version of this witness about his presence and witnessing the incident and taking the deceased to the hospital on motorcycle. The prosecution has failed to explain as to why blood stained clothes of Hayat Khan and bullock cart were not seized, which could have strengthen the version of this witness about his presence and witnessing the incident and taking the deceased to the hospital on motorcycle. The delay in lodging FIR simpliciter would not be fatal to the prosecution, if the prosecution is able to furnish reasonable and plausible explanation for delay but in the instant case looking to the nearness of the police station from the spot and Masum Ali was a retired police personnel, whereas Hayat Khan was serving in narcotic department, were aware of importance of lodging the report as early as possible, but failed to discharge their duty on this aspect and given contradictory statement, as discussed hereinabove. The only irresistible conclusion would be that they were not present on the scene of occurrence as stated by them and reached at the hospital later on, up to that time name of the assailants were not known that is why same was not mentioned in telephonic message received first in point of time in the police station about the incident and same were also not disclosed to doctor and also not mentioned in intimation letter (Ex.P/5) sent by PW-3 Dr. B. L. Boriwal to police. Supreme Court in case of Rehmat vs. State of Haryana, AIR 1997 SC 1526 , taken into consideration this aspect, has observed in paragraph-10 as under :- There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (PW-4) along with Vijay Singh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW-4) do not indicate the name of the assailant. The names were disclosed only at the time when the complaint was recorded by SI Narain Singh at about 9:00 P.M. which was treated as a formal FIR, The learned counsel for the appellant, therefore, rightly urged that the appellant was later on implicated in the present crime at the instance of the complainant and his friends. 12. This letter was written and sent on 20-3-1995 at 7:55 P.M., as admitted by PW-3 Dr. 12. This letter was written and sent on 20-3-1995 at 7:55 P.M., as admitted by PW-3 Dr. Boriwal. Statement of Hayat Khan (PW-16) regarding sending of information on telephone by Dr. Boriwal, is not corroborated by PW-3 Dr. Boriwal and any witness of concerned police station. PW-6 Masum Ali has admitted about preparation of spot map (Ex.P/9) by police in his presence and he signed on it. Ex.P/9 has also been proved by its scribe PW-18 T.I. Jawaharlal Soni. PW-6 Masum Ali has also admitted preparation of spot map (Ex.P/10) by PW-11 Patwari Ghisalal. In the map (Ex.P/9) distance of Masum Ali from Inayat Khan is shown three paces and eight paces distances where Hayat Khan was present. Looking to the statement of eyewitnesses Masum Ali and Hayat Khan coupled with spot map (Ex.P/9), both the eyewitnesses were standing very close to the deceased but they could not save him and accused persons were able to cause him as many as 14 injuries on different part of the body of the deceased. This also appears very improbable. 13. PW-16 Hayat Khan has deposed that appellant and co-accused Sushil reached on the spot, appellant caught the deceased and co-accused Sushil gave first blow on neck and some blows by knife on abdomen, thereafter appellant Praveen took the same knife from Sushil and struck on his abdomen. In paragraph-10 the say of this witness is that he saw both the accused causing 10 to 12 injuries and appellant Praveen struck 4 to 5 knife blows. He was confronted with his report Ex.P/8 (Dehati Nalishi) and case diary statement, wherein fact of taking of knife from co-accused Sushil by the appellant and causing injuries to deceased are not mentioned, and for this material omission which amounts to contradiction, Masum Ali failed to give any reasonable and plausible explanation. This is clear improvement made by him in the Court against the appellant. He has also stated that in FIR he signed without reading it but admitted its 'B' to 'B' part that "report was read over and explained to him". Same is the situation with second eyewitness PW-16 Hayat Khan, who has also made improvement in Court statement about taking of knife by the appellant from Sushil and causing 5 to 6 blows. Same is the situation with second eyewitness PW-16 Hayat Khan, who has also made improvement in Court statement about taking of knife by the appellant from Sushil and causing 5 to 6 blows. He was also confronted with his case diary statement (Ex.D/3) for omission of this fact and he failed to explain the same. Looking to the status of both the eyewitnesses, it is not conceivable that if they witnessed the incident of causing 5 to 6 blows by the appellant, they would forget to mention the same in their case diary statement. This is not a simple omission but a clear improvement which amounts to contradiction as per provision under section 162 of the Criminal Procedure Code, and appears to be made deliberately to fasten liability on the appellant. 14. PW-16 Hayat Khan has deposed that his statement (Ex.D/3) was recorded by police on 21-3-1995, whereas (Ex.D/3) is showing its recording on 20-3-1995 and he failed to explain contradiction at "A" to '"A" part, wherein it is written that "today dated 20-3-1995 at 5:00 P.M. I had gone to well". We perused his police statement (Ex.D/3) and found that at the top of the statement as well as after the signature of recording police officer, first the date was written 20th, thereafter in place of zero by overwriting 1 was written, but scribe of this statement has failed to correct the date mentioned at "A" to "A" part i.e. "today 20-3-1995". This also shows patching and fading of the prosecution case by the investigating agency about recording of statement and steps taken during the course of investigation. 15. Now we will examine the dying declaration Ex.P/1. PW-1 Naib Tehsildar Chandrapal Singh has proved the dying declaration in Court. This dying declaration is not in question and answer form. It is argued by learned counsel for the appellant that in fact it was got prepared on 23.3.1995 after the death of deceased Inayat Khan and the name of the appellant Pravecn has been interpolated even after preparation of this dying declaration, at the instance of investigating agency. In cross-examination Naib Tehsildar Chandrapal Singh in paragraph-3 has admitted that there was overwriting on the figure of date, initially because of mistake figure 22 was written and same was corrected by making 0 (zero) at place 2. In cross-examination Naib Tehsildar Chandrapal Singh in paragraph-3 has admitted that there was overwriting on the figure of date, initially because of mistake figure 22 was written and same was corrected by making 0 (zero) at place 2. He has denied the defence suggestion that first figure 23 was written and then at place 3 by overwriting, 0 (zero) was made. We have perused the dying declaration and in our considered opinion first figure 3 was written, which was by overwriting converted into 0 (zero). Naib Tehsildar Chandrapal Singh (PW-1) in cross-examination has also admitted that in the last line name of Praveen alias Bablu is written and there is less difference between this line and formar line than all other lines of the dying declaration. In the dying declaration it is clearly mentioned that only Sushil s/o Naresh Pal Singh caused injuries to deceased by knife behind the police station, at that time Sushil was alone and he was also alone. It is also mentioned specifically that on the spot there was no other person. These facts of the dying declaration are also clearly belying the presence of PW-6 Masum Ali and PW-16 Hayat Khan near the deceased and witnessing the incident. According to them, they were standing very close to the deceased and having talk with him, if it was so, deceased would have not failed to mention their names in the dying declaration. In the dying declaration not only the names of both the eyewitnesses were mentioned but it is also mentioned that accused Sushil and deceased only were present on the spot and none else was there. It is also clear from the dying declaration that in the last line i.e. "XXX XXXX" there is overwriting on word "XX". In the whole body of the dying declaration, nothing is mentioned against the appellant. We do not think it just and proper to give detailed finding about the genuineness and veracity of the dying declaration on the basis of detailed argument advanced by learned counsel for the appellant on this issue, because the co-accused Sushil is absconding and his trial is pending but it is clear that there is interpolation of last seven words showing the presence of appellant Praveen on the spot and overwriting on figure 3. 16. 16. All these facts are sufficient to probabalize the defence of appellant Praveen that when co-accused Susheel was not arrested and absconding to satisfy the complainant party and their community, he being brother of Susheel arrested and falsely implicated. The name of Praveen was not at all in picture and he was arrested all of a sudden, otherwise, he could have also absconded along with his brother Susheel. 17. It is also mentioned in the dying declaration that deceased was not having any kind of quarrel with co-accused Sushil and also not with the appellant, therefore, for the sake of argument if Praveen was even present there, he could not be held liable for commission of murder of deceased with the aid of section 34 of "the IPC", as there is no evidence on record that he was having any pre-meeting of mind, pre-meditation and pre-plan with the co-accused Sushil for commission of murder of deceased Inayat Khan. Supreme Court in case of Prakash vs. State of M.P., 2006 (13) SCC 508 has held in paragraph 19 as under :- Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused had a common intention to commit the offence. Presence or absence of community of interests may not be of much significance. Each case, however, has to be considered on its own merit. Facts of each case may have to be dealt with differently. Common intention may develop on the spot. Although a pre-arranged plan and meeting of minds is one of the prerequisites to infer common intention, a prior concert, however, can be inferred from the conduct of the accused. The role played by him, the injuries inflicted and the mode and manner in which the same was done as also the conduct of all the accused are required to be taken into consideration for arriving at a finding as to whether the accused shared a common intention with others or not. Common intention may have to be inferred also from other relevant circumstances of the case. The totality of the circumstances must be taken into consideration in arriving at such a conclusion. [Also see AIR 1978 SC Page 34, Bhagwan Bux vs. State of U.P.] 18. Common intention may have to be inferred also from other relevant circumstances of the case. The totality of the circumstances must be taken into consideration in arriving at such a conclusion. [Also see AIR 1978 SC Page 34, Bhagwan Bux vs. State of U.P.] 18. In the instant case about presence and participation of the appellant Praveen, the evidence of eyewitnesses is not at all reliable because of their highly abnormal conduct and deliberate improvement made in Court about overt act of the appellant, as discussed hereinabove. The presence of eyewitnesses on the spot witnessing the incident is also not reliable in view of contents of dying declaration (Ex.P/1). The contents of dying declaration are also not sufficient to give positive finding that appellant was having common intention with co-accused Sushil and in furtherance of the said common intention, he took part in the incident. 19. In view of the above, we allow this appeal. Conviction and sentence of the appellant passed by the trial Court are hereby set aside. The appellant is on bail, his bail bond and surety bond stand discharged.