Virender Singh, J. 1. Although the appeal at hand, age-wise, cannot be said to be old one being filed in year 2009 only, yet keeping in view the fact that the appellant is languishing in jail for the last fifteen years, we are giving priority to it. The delay caused in this case is primarily attributable to the accused side as the co-accused of the appellant here, who was granted bail during trial, did not appear and declared proclaimed offender under Section 512 of the Code of Criminal Procedure, Svt. 1989 (hereinafter to be referred to as `Code’). Judicial wrangles are also the contributory cause for the delay. 2. Appellant before us is Bishan Dass S/o Gauri Ram R/o Village Songal, Tehsil Akhnoor. He stands convicted under Section 302 Ranbir Penal Code (RPC) vide judgment dated 28.11.2008 passed by Sessions Judge, Jammu and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default thereof, to further undergo imprisonment of the like nature for a period of one year. His conviction is subject to the confirmation by this Court as per Section 374 of the Code. As such Confirmation No. 13/2008 which also stands admitted. 3. It needs to be mentioned here that the appellant stands acquitted of the charges punishable under Sections 307 RPC, 3/25 and 5/27 Arms Act. State has chosen not to file any appeal against the acquittal earned by him for the said offences. 4. Case of the prosecution, in brief, as narrated by Darshan Singh, real brother of the deceased-Jagdev Singh alias Jeban, is that on 27.10.1994 at about 3.30 p.m., he alongwith his brother Jagdev Singh had come out of Akhnoor Notified Area Committee after taking part in auction for collecting entry fees as regards the bus stand, Akhnoor in which the bid was released in their favour and as they turned towards south from the chowk, the appellant and his co-accused Sanjay Kumar, who were approaching from the opposite side, opened indiscriminate firing on Jagdev Singh from their respective mousers. It is then alleged that they exhorted that whosoever comes forward, they will kill him also. Thereafter, they fled away from the scene of crime alongwith their arms. The motive projected is that there was a long standing ill will on account of land dispute and for that reason both the accused had assaulted Jagdev Singh. It is then alleged that they exhorted that whosoever comes forward, they will kill him also. Thereafter, they fled away from the scene of crime alongwith their arms. The motive projected is that there was a long standing ill will on account of land dispute and for that reason both the accused had assaulted Jagdev Singh. Police is stated to have reached the spot immediately as SHO Police Station Akhnoor was patrolling in the Bazaar only. Jagdev Singh was then shifted to Medical College Jammu for his treatment by the police. Statement of Darshan Singh was recorded under Section 161 Cr.P.C. at the scene of occurrence itself at 4.15 p.m., upon which, formal F.I.R. was initially recorded under Section 307 RPC. Since Jagdev Singh had received multiple bullet injuries, which are fifteen in number, he breathed his last on the same day in the evening hours at about 7.30 p.m., upon which Section 302 RPC was inserted. 5. One Ram Lal, who happened to be passer bye had also received the injuries in this incident and he too was medically examined in the hospital by Dr. Abdul Gafoor (PW-19). His statement was also recorded under Section 161 Cr.P.C. during investigation, but was not produced during the trial as having been won over. Inspector Ch. Gulzar Hussain (PW-21) took up the investigation, prepared sketch plan of place of occurrence, seized three empty cartridges of mouser and one bullet on the spot. He also completed other formalities like seizure of blood, blood stained soil from the spot and sealed them separately. Photographs of the place of occurrence was also clicked. The case was also partly investigated by Kartar Chand Raina (PW-22) after Inspector Gulzar Hussain was transferred. 6. Recovery of two different mousers from the appellant and his co-accused, Sanjay Kumar, pursuant to their respective disclosure statements is shown. From Sanjay Kumar, one 7.63 mm/30 mouser bearing No. B9841/0020601 alongwith one misfired cartridge was recovered, whereas from the appellant one mouser bearing No.31067251 alongwith one misfired cartridge was recovered. After the presentation of the challan, the appellant and his co-accused were charged under Sections 302/307/34 RPC and 3/25 Arms Act. As stated above, Sanjay Kumar is proceeded under Section 512 Cr.P.C. during trial and the appellant after suffering conviction is before us through the instant appeal. 7. After the presentation of the challan, the appellant and his co-accused were charged under Sections 302/307/34 RPC and 3/25 Arms Act. As stated above, Sanjay Kumar is proceeded under Section 512 Cr.P.C. during trial and the appellant after suffering conviction is before us through the instant appeal. 7. Although the prosecution has examined as many as 23 witnesses in support of the charges, but the main witnesses to the occurrence are Darshan Singh-PW1, Joginder Singh-PW2, Keshav Kumar-PW3, Tilak Raj-PW4 and Parveen Singh-PW10. Virtually all these witnesses to the occurrence have unfolded the prosecution case in the same manner as initially stated by Darshan Singh-PW1, the real brother of the deceased, to the police, which became the basis of lodging of the F.I.R. Mrs. Kour, learned counsel for the appellant, in her wisdom has made an attempt to shatter the eye witnesses’ account, pointing out certain infirmities, which we will be discussing in the later part of the judgment. 8. Evidence of Dr. C. S. Gupta, Assistant Professor, Department of Forensic Medicines, Government Medical College, Jammu (PW-20), who had conducted the autopsy on the dead body of deceased Jagdev Singh and proved the post mortem report as EXPW-CS, found the following injuries:- "1. Fire-arm entry wound 0.2 cm in diameter with an abraded colour around over left lumber region on the back, 11.2 cms from midline and 98.7 cm above left heel. The wound is directed forwards and upwards. No marks of burning, blackening and tattooing present. 2. The wound has an exit of 1.5 cm x 1 cm with everted margins over right hypondiric region of the abdomen. 3. Fire-arm entry wound 0.2 cm in diameter with an abraded colour over outer back of left side of upper chest, 21.2 cm from mid line over front of chest and 119 cms above the left heel. No marks of burning, blackening and tattooing present. The wound is directed downwards and forwards. 4. Wound No.3 has an exit of 1.5 x 1 cm over lower front of right side chest 11.5 cm from midline and 112 cms above right heel. 5. Fire arm entry wound 0.2 cm in diameter with an abraded colour over left cheek, 4.5 cms from lobule-left ear. No mark of blackening, tattooing present. The wound is directed forward and upward. 6. This wound has an exit 2.5 x 1.2 cm over left pariental region of scalp. 5. Fire arm entry wound 0.2 cm in diameter with an abraded colour over left cheek, 4.5 cms from lobule-left ear. No mark of blackening, tattooing present. The wound is directed forward and upward. 6. This wound has an exit 2.5 x 1.2 cm over left pariental region of scalp. Left parietal bone fractured with brain matter, coming out of it. 7. Fire-arm entry wound 0.5 cm in diameter with abraded collar over right side neck below the middle of jaw. No marks of blackening and tattooing present. The wound is directed forward and upward. 8. The wound No.7 has an exit of 1.2 cm x 1 cm over right side chin below angle of mouth, neck vessels in the track lacerated. 9. Fire-arm entry wound 0.3 cm with an abraded colour over right axilla region. No marks of burning, blackening and tattooing present. 10. Wound No.9 has an exit 2 x 1 cm over front of right side chest near top of right shoulder. Muscle in the tack lacerated. 11. Fire-arm entry wound 0.2 cm over upper back of right arm. 12. Wound No.11 has an exit of 1 cm x 0.5 cm over right axilla. No marks of burning, blackening and tattooing present around the entry wound. Right humerous fractured dislocated with muscles in the tract lacerated. 13. Fire-arm entry wound 0.2 cm in diameter over middle outer-back of left arm with abraded colour present. No marks of blackening, burning and tattooing present. 14. Wound No.13 has an exit 1.5 x 1 cm over right axilla below injury No.9. 15. A lacerated wound of 2.5 x 1.3 cm present over left occipital region of scalp, under line wound. No fracture present. " While noticing the internal injuries, he observed as under:- "Head effusion of blood was present under the scalp over parietal and occipital regions. Communited fracture-left parietal bone present. Subdural and subracknied hemorrhage was present all over the wound. Meniges and brain substance was contused and lacerated. There was a hole in the base of scalp on the left side near the foramen mignent." Thorax (Chest Cavity) depicted the following position:- "Treachea containing blood over the walls. Both sides chest cavity contained about 2 ltrs of blood. Right lung was lacerated. Left ventricle of the heart was lacerated. Abdomen contained two liters of blood. Liver was lacerated. There was a hole in the base of scalp on the left side near the foramen mignent." Thorax (Chest Cavity) depicted the following position:- "Treachea containing blood over the walls. Both sides chest cavity contained about 2 ltrs of blood. Right lung was lacerated. Left ventricle of the heart was lacerated. Abdomen contained two liters of blood. Liver was lacerated. Left kidney was lacerated with effusion of blood, present in pelvic tissues. Stomach contained about 200 cc of semi liquid food material." 9. In the opinion of the doctor, the cause of death was due to haemorrhage and shock as a result of multiple injuries caused by discharge of projectiles from a rifled fire-arms. The time of post mortem and the death was opined as two hours only. 10. We will be referring to the evidence of some of the other witnesses also at the relevant stage, but do not feel the necessity of reproducing the entire evidence just to make our judgment weighty. In brief, the investigation conducted in this case is already depicted in the preceding paras by us. 11. The case of the appellant as emerges from his statement recorded under Section 342 Cr.P.C. is of denial simplicitor on all counts. He has opted not to produce any witness in defense. 12. We have heard Mrs. Kour, learned counsel for the appellant and Mr. Basotra, learned Addl. Advocate General representing the State, at length. Relevant material from the record of the trial Court has also been perused by us. 13. The main attack launched by Mrs. Kour on the prosecution case is that there is a delay of about two days in sending the Special Report to the Magistrate and this fact by itself is enough to discard the very case set up by the prosecution. She submits that the F.I.R. was initially lodged under Section 307 RPC and that Jagdev Singh died on the same day in the hospital at about 7.30 p.m., upon which Section 302 RPC was inserted. She then submits that it has also come on record that the case was converted as Special Report case on the same day as is clear from record, still it did not reach the hands of the Magistrate on the same day or even the next day and ultimately the information was supplied to the Illaqa Magistrate on 29.10.1994. She then submits that it has also come on record that the case was converted as Special Report case on the same day as is clear from record, still it did not reach the hands of the Magistrate on the same day or even the next day and ultimately the information was supplied to the Illaqa Magistrate on 29.10.1994. According to learned counsel, from this huge delay, it can be inferred that the prosecution had ample time to manufacture a story of its choice, that too by importing the witnesses to the choice of the complainant. It shows that Darshan Singh, the real brother of the deceased, who is otherwise the most interested witness has been introduced subsequently alongwith other witnesses to project it to be a case of an eye version account, whereas it was not seen by any of these witnesses. In the same breath, learned counsel submits that in the light of the aforesaid delay, the discrepancies occurred in the evidence of eye witnesses would assume importance to create doubt and there are certain material discrepancies crept in this case. 14. Dwelling upon her case, she wants to highlight that the witnesses to the occurrence have made an attempt to, in fact, change the place of occurrence from one point to other point, which flaw goes a long way to show that they were not present at the spot. 15. Mrs. Kour then submits that even in the rough site plan exhibited as EXPW-GA/1 or the plan prepared by Patwari exhibited as EXPW-BR, it is not shown as to from where the eye witnesses have seen the occurrence. This also indicates that when the rough site plan was prepared, the investigating officer (Inspector Ch. Gulzar Hussain) was not clear as to who was to be projected as an eye witness and that at what point he was to be placed at the scene of occurrence. This flaw, according to learned counsel, again dents the prosecution story doubting that the witnesses are not the true witnesses to the occurrence and have been brought forward subsequently to toe the line of Darshan Singh, an interested person in the success of the prosecution case. 16. Mrs. This flaw, according to learned counsel, again dents the prosecution story doubting that the witnesses are not the true witnesses to the occurrence and have been brought forward subsequently to toe the line of Darshan Singh, an interested person in the success of the prosecution case. 16. Mrs. Kour then points out certain discrepancies in the medical evidence vis-a-vis the eye version account and states that if one reads the evidence of doctor who had conducted the autopsy and stated in his cross-examination the distance from where the shots were fired and the effect thereof, it does not co-relate with the eye witness’ account, which is an indicative of the fact that the witnesses are not putting forth the true version of the occurrence. She submits that non examination of Ram Lal, an injured witness, may be having been won over would again be a damaging factor for the prosecution as he was the true stamped witness to the occurrence and had he stepped into the witness box, the exact account of occurrence would have been brought on record. Since the prosecution was apprehensive of the same, he was kept back. This material weakness also creates doubt about the credibility of the investigation done in this case, which, according to learned counsel, is otherwise tainted from the very start. 17. Mrs. Kour lastly submits that even if the prosecution case to some extent is taken to be true (although not admitted) still it is doubtful about the participation of present appellant atleast. She submits that in the cross examination of the doctor of autopsy (Dr. C. S. Gupta PW-20), it has come that the injuries received by the deceased were from one fire arm only. She then submits that even otherwise, there was no motive in the bosom of the present appellant to actively participate alongwith his co-accused (since declared proclaimed offender) as Darshan Singh in his substantive statement has categorically stated that there was a land dispute with Sanjay Kumar, co-accused. Strengthening her argument, she submits that the appellant stands acquitted for the charge of Arms Act. All these factors when taken collectively are indicative of the fact that the presence of appellant at the scene of crime is not free from doubts. 18. On the basis of aforesaid submissions, Mrs. Strengthening her argument, she submits that the appellant stands acquitted for the charge of Arms Act. All these factors when taken collectively are indicative of the fact that the presence of appellant at the scene of crime is not free from doubts. 18. On the basis of aforesaid submissions, Mrs. Kour submits that the prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt and as such, he deserves acquittal by extending him benefit of doubt. 19. Per contra, Mr. Basotra opposes the submissions advanced by Mrs. Kour stating that in the present case the police was informed without wasting any time in which the entire occurrence was depicted. Even if Special Report is not sent to the concerned quarters, it would not demolish the case of the prosecution as this can be said to be a mere irregularity committed by the investigating agency. He then submits that the discrepancies pointed out by Mrs. Kour in the statements of eye witnesses are not of that serious nature so as to disbelieve the prosecution case in its totality as such type of minor variations are bound to occur with the lapse of time and are ignorable. The eye witnesses had virtually no axe to grind against the appellant and as a matter of fact against his co-accused also, who absconded during trial. It is a case of multiple injuries attributed to appellant and his co-accused, who actively participated and opened indiscriminate firing. The discrepancy as pointed out by learned counsel for the appellant with regard to the eye version account and the medical evidence, according to learned State counsel, is again not that significant, which would demolish the case of the prosecution in its totality. Therefore, the conviction and sentence as recorded by the trial Court under Section 302 RPC qua the appellant deserves to be confirmed. 20. No doubt, Special Report in this case was not dispatched to the Illaqa Magistrate immediately after the death of Jagdev Singh on 27.10.1994 itself. But what would be the effect of delay of dispatch of the Special Report depends upon the facts of each case. Some time a huge delay is not said to be fatal whereas on the other hand, even few hours’ delay can demolish the entire prosecution fabric. But what would be the effect of delay of dispatch of the Special Report depends upon the facts of each case. Some time a huge delay is not said to be fatal whereas on the other hand, even few hours’ delay can demolish the entire prosecution fabric. Therefore, in criminal jurisprudence, every criminal trial is tested on its own facts and this is the well settled legal position. The present case cannot be said to be of not informing the concerned Magistrate at all. The only laxity shown by the concerned official, who was the Incharge of the Police Station Akhnoor, was that he in his wisdom dispatched the FIR, initially recorded under Section 307/34 RPC and 3/25 Arms Act in routine to the Illaqa Magistrate, which reached his hands on 29.10.1994 at 10.30 A.M. There is no reference of death of Jagdev Singh in that, although it was treated as Special Report case, may be on account of firing incident. Whether senior police officers was informed of this occurrence or not even after the death, this fact has not come on record. In our considered view, it would have no effect under the present set of circumstances for the reason that hardly any time was consumed in reporting the matter to the police after the occurrence, which was of 3.30 p.m., whereas the police got the information at 4.15 p.m. as is clear from column No.1 of the F.I.R. Undoubtedly, delay in dispatch of the Special Report can create doubts in the mind of the Court of coining up version of choice, but in the present case that is not the situation at all. If one reads the allegation as contained in the F.I.R., Darshan Singh states that after the bid was over in the office of Notified Area Committee in which 15/ 16 contractors have participated alongwith him and his brother (since deceased) and the bid being released in his favour, he had proceeded towards the main bazaar. He then states that 3/ 4 other persons were also accompanying them. He does not name those persons. Had Darshan Singh to consume any time to coin up a story of his choice, he could disclose the name of any one and every one now produced. He then states that 3/ 4 other persons were also accompanying them. He does not name those persons. Had Darshan Singh to consume any time to coin up a story of his choice, he could disclose the name of any one and every one now produced. In fact, what had happened in front of him within few minutes, he immediately disclosed the same to the police official, who happened to be present in the Bazaar in connection with his routine patrolling (Ghashat) as it is clear from the police proceedings (Karvahi). It is recorded at 4.15 p.m. All these facts are supplied in the F.I.R., which was placed before the Illaqa Magistrate on 29.10.1994. Some of the witnesses, who happened to be present at the spot incidentally as they had also come out after attending the bid, were ultimately examined by the Investigating Officer under Section 161 Cr.P.C., and then examined during the trial. Therefore, in our view, even if there is a considerable delay in sending the Special Report to the Illaqa Magistrate, which fact is apparent on record, it cannot be said to be fatal to the prosecution. It can at the most be a wrong committed by the investigating agency for which criminal justice should not be made a casualty. Our view is fortified from a very latest judgment of Hon’ble Supreme Court in case titled `Abu Thakir and others v. State represented by Inspector of Police, Tamil Nadu’ 2010 (3) Recent Apex Judgments page 501. Therefore, we reject the argument advanced by Mrs. Kour on the point of delay in sending the Special Report. 21. The other argument advanced by Mrs. Kour with regard to the non placement of eye witnesses in the rough site plan or even in the scaled plan, in our view, would again not make any difference. The investigating officer in his wisdom gave broader picture of the place of occurrence showing particularly the point where actually the deceased was assaulted. He has depicted many shops around the area and the place of occurrence is shown almost in front of the shop of Sanjay Kumar. Therefore, even if the exact points from where the witnesses had seen the actual occurrence have not been depicted in the Rough Sketch Plan, in our considered view, it would not create any doubt so as to dislodge the eye witnesses’ account. Therefore, even if the exact points from where the witnesses had seen the actual occurrence have not been depicted in the Rough Sketch Plan, in our considered view, it would not create any doubt so as to dislodge the eye witnesses’ account. It is well settled that remissness on the part of investigating officer should not be taken seriously if the prosecution case is otherwise established. 22. An attempt made by Mrs. Kour in order to demolish the case of the prosecution on the ground that there is a conflict between the eye version account and medical evidence is again futile one as we do not find any material infirmity in it, which goes deep to the root of the case and demolishes the basic substratum of the prosecution. The eye witnesses are not supposed to give the parrot like version of occurrence. Rather such type of statement can create doubt in the mind of the Court and they can be dubbed as tutored witnesses. Certain facts are bound to obliterate from the memory of even very most trustworthy witnesses by efflux of time. In the present case, there is no dearth of injuries on the person of the deceased, who has received as many as 15 injuries as is evident from autopsy report. It was a case of indiscriminate firing, which could baffle any one who was present there in the Bazaar. Darshan Singh, the real brother, was bound to get more perplexed and still he broadly depicted whatever he could see happening in front of his eyes within few minutes. Therefore, missing of some facts even important, in our view, will not make difference in the present case. The report is lodged within less than one hour as stated above and this material fact cannot be kept out of the zone of consideration. 23. Although not agitated, yet we are conscious of the fact that Darshan Singh, who was accompanying his real brother, has not received any injury in this occurrence despite there being volley of fire shots released from two mousers in which his brother had received several injuries. This fact could create some suspicion, but that is not the situation in the present case. The bid is released in favour of the complainant. Therefore, naturally he was supposed to be present in the office of Notified Area Committee at the time of bid alongwith his brother. This fact could create some suspicion, but that is not the situation in the present case. The bid is released in favour of the complainant. Therefore, naturally he was supposed to be present in the office of Notified Area Committee at the time of bid alongwith his brother. He could otherwise also accompany him as in such type of contracts. Even bidder normally takes one or two associates, may be as partners or an encouraging source. It is sheer his good luck that he did not receive any injury and incidentally one Ram Lal, a passer bye, received fire arm injuries. Therefore, we do not find any reason to doubt his presence or the case set up by him. 24. Mrs. Kour wanted to derive some advantage from non examination of Ram Lal, an injured witness, on the pretext that the best evidence has been withheld by the prosecution. No doubt, Ram Lal is a stamped witness to the occurrence, but his non examination, in our considered view, under the present set of circumstances, will not shatter the prosecution case when the other evidence brought on record in the shape of eye version account is reliable and trustworthy. Had there been any suspicion in our mind on the origin of the occurrence, we might have drawn an adverse inference against prosecution for non-examination of Ram Lal, an injured passer bye. That is not the fact position in the present case. Therefore, the argument advanced by Mrs. Kour does not convince us. 25. In her last endeavour, Mrs. Kour wants to segregate the case of Bishan Dass from his co-accused, Sanjay Kumar, on certain grounds referred to hereinabove. In our view, none of them comes at the rescue of the appellant. There are as many as fifteen (15) injuries on the person of the deceased covering different parts of the body. Even if the doctor of autopsy has said that all the injuries are possibly by one fire arm, it does not mean that all the injuries were caused by the weapon attributed to Sanjay Kumar, co-accused only. The injuries could be by two weapons of the same characteristics/ features. Doctor of autopsy was not a ballistic expert and, even otherwise, his evidence is not the last word. This piece of evidence cannot demolish the prosecution case, which is otherwise, proved. We are appreciating this aspect from another angle. The injuries could be by two weapons of the same characteristics/ features. Doctor of autopsy was not a ballistic expert and, even otherwise, his evidence is not the last word. This piece of evidence cannot demolish the prosecution case, which is otherwise, proved. We are appreciating this aspect from another angle. There are injuries on the front portion as well as back portion of the dead body. This shows that the shots are released simultaneously from two different directions. It has to be by two weapons. 26. Much has been said on motive part by Mrs. Kour. No doubt, Darshan Singh has attributed the motive with regard to land dispute vis-a-vis Sanjay Kumar, co-accused, but again that would not be a ground to extend benefit to the present appellant. Assuming for the sake of an argument, even if there is no motive in the bosom of the appellant, it does not mean that he could not join hands with his co-accused. Motive pales into insignificance in the light of reliable and trustworthy eye version account. Therefore, endeavour made by Mrs. Kour for segregating the case of the appellant on the grounds taken by her, is an exercise in futility. 27. We have already observed that the acquittal earned by the appellant for the charge of Section 307 R.P.C. is primarily on account of non-examination of an injured witness namely Ram Lal. 28. Perhaps, according to us, no other point is left for discussion. 29. After churning the entire evidence once again in its right perspective, in our considered view, the appeal on hand is destined to fail. It is, accordingly, dismissed. The conviction and the sentence recorded by the learned trial Court qua the appellant for the charge of Section 302 RPC vide impugned judgment is hereby upheld. Concerned authorities be made aware of the outcome of the instant appeal without any delay. 30. Confirmation No.13/2008 is also answered accordingly.