JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant criminal appeal is preferred against the judgment and order dated 6.6.2006 passed by the Additional Sessions Judge, Fast Track Court No. 1, Siddharth Nagar in Session Trial No. 82 of 2004 convicting the appellant Sugreev under Section 302 I.P.C. and sentencing him to undergo imprisonment for life and a fine of Rs. 5,000/-. In default of payment of fine, five months further imprisonment. The appellant is also convicted under Section 307 I.P.C., sentenced to undergo nine years R.I. and fine of Rs. 5,000/-. In default of payment of fine, further imprisonment of five months. Both the sentences are directed to run concurrently. 2. The occurrence is alleged to have taken place in the intervening night of 12/13.5.2004 at 11.00 p.m. F.I.R. was lodged on 16.5.2004 at 9.15 a.m. by PW-2 Baddu Yadav at Police Station Kotwali Lotan, District Siddharth Nagar situated at a distance of three kilometres from the place of occurrence. One Laddu Yadav is alleged to have died on 15.5.2004 at 6.00 a.m. in Medical College, Gorakhpur as a result of acid burn injuries which he had received in the intervening night of 12/13.5.2004. 3. According to the prosecution story as unfolded in the F.I.R., it is alleged that at the time and date of occurrence, Laddu was sleeping with his wife Isarawati PW-1 on his door. Two children were sleeping nearby. The accused appellant Sugreev is alleged to have thrown acid from a gallon (container). On hearing shrieks, villagers arrived and saw the deceased Laddu and his wife Isarawati were burnt. The injured were taken to Naugarh Government Hospital from where they were referred to Government Medical College, Gorakhpur. The deceased died on 15.5.2004 and post mortem was performed on the body of the deceased. His wife Isarawati was also alleged to be seriously injured. Brother of the appellant used to work in an acid factory in Maharashtra. The appellant and deceased used to live in the same quarter and there was some verbal altercation between them. The deceased had come home since last four months. The appellant Sugreev came to village on 12.5.2004 and had brought acid with him which he threw on the deceased at 11.00 p.m. at night. The explanation given for delay in lodging the F.I.R. was that family members were not at home and entire family had gone to Medical College, Gorakhpur. The deceased had come home since last four months. The appellant Sugreev came to village on 12.5.2004 and had brought acid with him which he threw on the deceased at 11.00 p.m. at night. The explanation given for delay in lodging the F.I.R. was that family members were not at home and entire family had gone to Medical College, Gorakhpur. Post mortem was performed on 15.5.2004 at 4.00 p.m. by Dr. R.M. Singh PW-7. Doctor had found the skin burnt leathery parchment like all over body. Eyes were bursting out. 4. The deceased who had received injuries in the intervening night of 12/13.5.2004 as well as his wife PW-1 were admitted as an accidental burn case and examined by PW-5 Dr. R.S. Shukla. The injury report of the deceased Laddu Ex. Ka-2 mentions 50% burn injuries. Injury of Smt. Isarawati PW-1 was also examined on the same day i.e. 13.5.2004 by the same doctor which is Ex. Ka-3. Laddu died on 15.5.2004 at 6.00 a.m. Inquest was prepared by HCP Ramakant on 15.5.2004 Panch witness Mutthi Yadav was examined as Court witness. Chandrabhan and Sumer Yadav are brothers of the deceased and Ramakant Yadav as witness of inquest. 5. The prosecution examined six witnesses to substantiate its case. Smt. Isarawati was examined as PW-1, Baddu Yadav first informant and real brother of the deceased was examined as PW-2. Km. Reeta aged about 8 years daughter of the deceased was examined as PW-3 and the Court was of the view that she is too small to depose in the Court and is not able to understand the implications of her statement. However, certain questions were put to her. PW-4 is Koil Yadav who is not named in the F.I.R. but subsequently he has been introduced. Dr. R.S. Shukla was examined as PW-5 who examined injuries of the deceased and PW-1. A.K. Chaubey was examined as PW-6 who is the second Investigating Officer and Dr. R.N. Singh as PW-7 who conducted post mortem. Mutthi was examined as Court witness. Durbali, Pradhan of the village was examined on behalf of defence as DW-1 and Ram Charitra Lodh as DW-2. 6. Sri M.P. Yadav Advocate appears on behalf of the appellant and learned A.G.A. for the State. At the very outset Sri M.P. Yadav has submitted that the appellant is in jail since 17.5.2004 i.e. from the date on which the F.I.R. was lodged. 6. Sri M.P. Yadav Advocate appears on behalf of the appellant and learned A.G.A. for the State. At the very outset Sri M.P. Yadav has submitted that the appellant is in jail since 17.5.2004 i.e. from the date on which the F.I.R. was lodged. He was taken into custody from his house and there was no effort on the part of the appellant to evade his arrest. Submission on behalf of the defence are : (1) Delay in lodging the F.I.R. without any explanation by PW-2 who remained in the village as admitted by him. (2) There is no source of light and, therefore, there was no occasion for the witnesses to have recognized the assailants. (3) It is argued next that both the injured were conscious according to Dr. R.S. Shukla who had examined their injuries but none of them disclosed the name of the person who had made assault though that was the earliest occasion to reveal the name of the accused. It is also submitted that both the injured were admitted in Sadar Hospital, Gorakhpur as an accidental burn injury case. (4) It is also emphatically stated that one of the real brother of the deceased namely Sumer Yadav is a witness of inquest but he did not reveal the name of the person who perpetuated the crime. On the contrary, he asserts that some unknown person is liable for causing acid injury. Besides, it is not the case of the prosecution that the deceased was unconscious, yet no dying declaration was recorded. (5) It is also argued that the allegation levelled in the F.I.R. is an after thought. Motive attributed was alleged for the first time during trial. (6) First Investigating Officer namely Narendra Pratap Singh who recorded statement of witnesses of fact, was not produced in the Court. (7) The F.I.R. is ante-timed. (8) Lastly it is argued that questioning of the accused was an empty formality under Section 313 Cr.P.C. The specific accusation was not put to him regarding motive alleged for the first time during the trial. Thus the accused has not been given an opportunity to reply the alleged genesis of commission of the crime levelled against him during the trial and this has considerably prejudiced the appellant. 7. Thus the accused has not been given an opportunity to reply the alleged genesis of commission of the crime levelled against him during the trial and this has considerably prejudiced the appellant. 7. First and foremost argument raised by learned counsel for the appellant is that the incident has taken place at 11.00 p.m. in the night while two injured (one of them now deceased) were fast asleep. There was no source of light and they woke up only after receiving acid injuries, therefore, there was no opportunity to recognize the assailants who threw acid. Besides, the container in which it is alleged that the appellant brought acid, was not produced in the Court though a composite recovery memo was prepared of the bedding, pieces of cloths as well as Jericane (container). The specific assertion of PW-1 has been pointed out by learned counsel that the appellant did not light torch before throwing acid. She shouted after receiving acid injuries. Thus it is beyond any once imagination as to how the appellant was identified in the dark night. So far the allegation and admission about lending Rs. 10,000/- by the appellant to the deceased by PW-1 is only hear-say. She herself has not seen any exchange of money between them. Theory of illicit relation of the deceased with the appellant’s wife is also not in her personal knowledge. She was not even able to disclose the name of the person who disclosed the fact about illicit relation. She also admitted that she had never seen anything going on between the deceased and appellant’s wife. 8. Learned counsel has also laid stress on the unequivocal statement by PW-1 that Baddu first informant was in Bombay at the time of incident, immediately thereafter in the next sentence she has changed her version that he was in village but she specified that Baddu arrived at the scene of occurrence only after the incident had taken place. No one else was in the house save her husband and children. She also admits that it was a moon lit night but when confronted with her statement under Section 161 Cr.P.C. that it was a dark night, she could not give any reason for this discrepancy. No one else was in the house save her husband and children. She also admits that it was a moon lit night but when confronted with her statement under Section 161 Cr.P.C. that it was a dark night, she could not give any reason for this discrepancy. She also stressed on her earlier statement before the Investigating Officer and accepted that her husband Laddu Yadav was in deep slumber at the time when the acid was thrown as well as her assertion that the entire act of throwing acid was in a bat of an eyelid. She further admits that her brother-in-law Sumer Yadav and her brother Chandrabhan were present there when the treatment of her husband was going on in the Medical College and she and her husband were kept in a room. It is pointed out that despite the fact that so many people were present, the name of the accused was neither disclosed to these witnesses nor any effort to lodge the report was made at their instance till Laddu Yadav died and that too after inquest and post mortem was completed, and that too after one more day had lapsed. Laddu died on 15.5.2004 at 6.00 a.m. and the F.I.R. was registered only on 16.5.2004 at 9.15 a.m. at the police station which was merely at a distance of three kilometres from the place of occurrence. 9. PW-2 first informant is not an eye witness. PW-2 has admitted in his examination-in-chief that he came to know after the incident that Sugreev had brought one gallon of acid from Bombay. He also states that the deceased had gone to meet the appellant in the evening of the date of occurrence. The first informant was unable to disclose the name of scribe of the F.I.R. though he has proved the report. Exchange of money of Rs. 10,000/- between the deceased and appellant is also admitted to be hear-say. He is not a witness to any such exchange of money. He has contradicted the statement of PW-1 that Laddu and PW-2 were living separately. Subsequently in cross examination he states that his house is situated at a distance of 100 yards east from the house of the deceased brother. He is not a witness to any such exchange of money. He has contradicted the statement of PW-1 that Laddu and PW-2 were living separately. Subsequently in cross examination he states that his house is situated at a distance of 100 yards east from the house of the deceased brother. He also admits that while going to the hospital, the police station is on way but he had not accompanied the injured to Sadar Hospital, Siddharth Nagar and, therefore, he was not able to give details about first aid given to them or disclose anything about the treatment given to the injured in the Medical College. He was not even present at the time of inquest. He saw his deceased brother only after the dead body was brought at home. He states that the F.I.R. was written at the crossing but he was not able to remember that who was the scribe. He has also admitted that after the incident, he continued to stay in his house in village and take care of cattle etc. but did not go to the hospital. He was only waiting to give information at the police station till the injured returned or his brother died. He has also admitted that motive of the crime is given out for the first time during the trial and never before. Though he has denied the suggestion that motive spelled out during the trial is concocted and on legal advise. 10. Kumari Reeta -P.W.3, daughter of the deceased and P.W.1, aged 8 years was also examined as a witness of fact. Learned counsel for the appellant pointed out that the trial Judge himself made a note in the statement itself that she was very young and was not capable of understanding questions and giving rational answers. It was submitted that she could not have witnessed the incident. She admitted in her examination-in-chief itself that when she woke up, her father was lying with eyes closed and something have been poured over him and Sugreev was there with sweets. It was pointed that on cross examination, she did not reply to most of the questions. She did not give any answer to the question, as to who was present when she woke up on the shrieks of her mother. Learned counsel for the appellant submitted that P.W.3 cannot be termed as a reliable witness. 11. It was pointed that on cross examination, she did not reply to most of the questions. She did not give any answer to the question, as to who was present when she woke up on the shrieks of her mother. Learned counsel for the appellant submitted that P.W.3 cannot be termed as a reliable witness. 11. So far PW-4 Koil Yadav is concerned, submission of learned counsel is that he is apparently a chance witness. The reason for his presence in the near vicinity of the incident is that his ox had ran away and he was trying to chase it when he saw the assailants running away. PW-4 has clearly admitted that he has come to give evidence on the request of his brother Baddu. This witness also accepts that it was a dark night. He was confronted with his statement under section 161 Cr.P.C. but he was unable to give any reason for the contradictions pointed out. 12. PW-5 Dr. R.S. Shukla has admitted in his statement that the deceased as well as PW-1 were not unconscious when they were brought for the first aid by his brother Sumer Yadav. He has also admitted that injury report was prepared on an accidental register. Thus on the basis of this evidence Sri M.P. Yadav has emphatically asserted that the prosecution has not been able to substantiate its case with minimum precision and, therefore, the appellant is entitled for a benefit of doubt and appeal is liable to be allowed. 13. We have carefully considered the arguments and various contradictions and discrepancies pointed out in the evidence as well as statements of witnesses of fact. So far the question of motive is concerned, it is correct that no such motive was alleged in the F.I.R. which is admittedly very delayed. The explanation for the delay in lodging the F.I.R. is also very flimsy and difficult to accept. Besides, the allegation of motive in the F.I.R. is not corroborated. Even if we accept the argument on behalf of prosecution that the F.I.R. cannot be accepted to be a complete encyclopaedia yet if the motive is alleged during the trial, it has to be substantiated by means of valid piece of evidence. Two reasons were spelled out by the prosecution regarding genesis of the offence, firstly a loan of Rs. Even if we accept the argument on behalf of prosecution that the F.I.R. cannot be accepted to be a complete encyclopaedia yet if the motive is alleged during the trial, it has to be substantiated by means of valid piece of evidence. Two reasons were spelled out by the prosecution regarding genesis of the offence, firstly a loan of Rs. 10,000/- was given to the appellant by the deceased which he did not return and secondly the relation of the wife of the appellant with the deceased, both these facts cannot be accepted for there being not an iota of proof to corroborate these facts. Each and every witness including PW-1 who is the wife of the deceased and was living with him had no personal knowledge about taking or giving of the loan amount, on the contrary, has admitted that she had overheard other people saying as well as she had no inkling about any relation with the appellant’s wife and her husband, though she was living in the village and in neighbourhood. This again is merely a bald allegation without any evidence to substantiate. We are conscious of the fact that it is not necessary in every case where there is an eye witness account to allege and substantiate motive but if a motive is alleged then a heavy burden lies on the shoulders of the person alleging it to substantiate by means of cogent evidence. Thus the motive coming forth for the first time during the trial is a sham and cannot be accepted whatsoever. Besides, we cannot also overlook the fact that the appellant was arrested the very next day i.e. on 17.5.2004. In case he had committed the offence in the intervening night of 12/13.5.2004, the normal human conduct would be to make himself scarce specially in the case of the appellant who was residing at Bombay since a very long time and his disappearance would not be noticed much. The fact that the F.I.R. was lodged on 16.5.2004 at 9.15 a.m. after a long interval from the date of incident and the very next morning the appellant was arrested does not lead credence to the prosecution story. The fact that the F.I.R. was lodged on 16.5.2004 at 9.15 a.m. after a long interval from the date of incident and the very next morning the appellant was arrested does not lead credence to the prosecution story. We are also conscious of the fact that Sumer Yadav has not been examined by the prosecution when he was the most natural witness who had accompanied the deceased and injured to the hospital thereafter to the Medical College and continued to be with them during the treatment. He was also a witness of inquest but a perusal of the inquest report shows that the witnesses opinion was that some ‘unknown person’ has committed the crime. Conduct of Baddu Yadav is another extreme, he is the real brother who has come forward to lodge the F.I.R. after considerable lapse of time but he has not cared once to visit the hospital but preferred to stay at home and look after the cattle etc. The other witness PW-4 Koil Yadav is also cousin and admits that he has come to depose in the Court on asking of his brother PW-2. The specific case of the prosecution is that recovery memo was prepared of the container in which the accused had brought acid but was not produced during the trial. There ought to have been chemical analysis report of the contents of the said Jarikan but the prosecution has not brought anything to substantiate these material piece of evidence. The assertion of PW-1 that she was fast asleep when the acid was thrown and her husband was also in deep slumber coupled with the fact that none of them disclosed the name of the assailants either to the family members or to the doctor or any one else is a significant circumstance which cannot go unnoticed. It appears to be a case of hit and run in the darkness of night. 14. We have also noticed the argument of the learned counsel that special report was sent only on 28.5.2004. The Investigating Officer who had recorded the statement of the witnesses was not examined and, therefore, the material discrepancies in the statement in the Court and statement under Section 161 Cr.P.C. cannot be ignored. 14. We have also noticed the argument of the learned counsel that special report was sent only on 28.5.2004. The Investigating Officer who had recorded the statement of the witnesses was not examined and, therefore, the material discrepancies in the statement in the Court and statement under Section 161 Cr.P.C. cannot be ignored. The Investigating Officer could not be confronted with the assertions of the witnesses who have plainly failed to give a reason for the statement recorded by the Investigating Officer in their respective statements. We have also noticed that since there was nothing in evidence to establish the allegations of illicit relation between the appellant’s wife and the deceased as well as exchange of loan money, it was necessary that these questions should have been put to the appellant in his statement under Section 313 Cr.P.C. He has plainly been denied an opportunity to give his version since he was never questioned about the said allegations. 15. The Apex Court in the case of Ajay Singh v. State of Maharashtra, 2007 (3) JIC 508 (SC), ruled that the object of examination under Section 313 Cr.P.C. is to give the accused an opportunity to explain the case made against him and the said statement can be taken into consideration in judging his innocence or guilt. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Similar view was expressed in the case of Shaikh Maqsood v. State of Maharashtra, (2009) 3 SCC (Cri) 82, Ranvir Yadav v. State of Bihar, (2009) 3 SCC (Cri) 92, Inspector of Customs, Akhnoor, Jammu and Kashmir v. Yashpal and another, (2009) 2 SCC (Cri) 593 and State of Punjab v. Hari Singh and others, (2009) 2 SCC (Cri) 243. It was held by the Apex Court that lapse on the part of the trial Court in not indicating incriminating materials to the accused, held, in such circumstances impugned judgment convicting the accused was liable to be set aside. 16. It was held by the Apex Court that lapse on the part of the trial Court in not indicating incriminating materials to the accused, held, in such circumstances impugned judgment convicting the accused was liable to be set aside. 16. Learned counsel for the appellants has also relied on a number of decisions of the Apex Court on the question of belated F.I.R.; Thulia Kali v. State of Tamil Nadu, AIR 1973 (SC) 501 , Sahib Singh v. State of Haryana, AIR 1997 (SC) 3247 and Ramdas and others v. State of Maharashtra, (2007) 1 SCC (Cri) 546 and many others. 17. We are in agreement with the submission of the learned counsel for the appellant that in the instant case there is more than 3 ½ days delay in lodging the F.I.R. and explanation for the delay is not only half-hearted but so superficial that an embellishment on the part of the prosecution is apparent. The delay in the report not only gets bereft of spontaneity but danger creeps in of the introduction of coloured, exaggerated and concocted story. Thus we are sceptical to place implicit reliance in the F.I.R. and claim of the prosecution that part of the motive was already there in the F.I.R., is of no consequence. We are conscious of the infirmity pointed out by the learned counsel in respect of investigation and non production of the first Investigating Officer and a number of other anomalies which leads us to an irresistible conclusion that no one had actually seen the incident. None had recognized the assailants but only on a subsequent realisation that one or the other accused has to be named. 18. We have also noticed that it is night incident. There is no source of light. The witnesses are not reliable. Only witness Sumer Yadav who could be said to be material and relevant person who was present all through, was withheld. The name of the assailants was not disclosed by the victim though they were conscious, renders the prosecution case not at all reliable. The testimony of the witnesses as pointed out in the body of the judgment is also not trustworthy and, therefore, we are of the opinion that the prosecution has completely failed to discharge its duty of substantiating its case beyond any doubt. We are unable to uphold the judgment of conviction by the Court below. 19. The testimony of the witnesses as pointed out in the body of the judgment is also not trustworthy and, therefore, we are of the opinion that the prosecution has completely failed to discharge its duty of substantiating its case beyond any doubt. We are unable to uphold the judgment of conviction by the Court below. 19. In view of what has been stated above, we are of the opinion that the prosecution has miserably failed to substantiate its case by means of valid and cogent evidence beyond any reasonable doubt and the appellant is entitled for benefit of doubt. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment and order dated 6.6.2006 passed by the Additional Sessions Judge, Fast Track Court No. 1, Siddharth Nagar in Session Trial No. 82 of 2004, State v. Sugreev, is set at naught. The appeal is accordingly allowed. The appellant shall be set at liberty forthwith. Let a copy of this judgment alongwith lower Court record be sent to the concerned Sessions Judge for compliance. ————