JUDGMENT Gurdev Singh, J.:- The appellant/accused, Bant Singh @ Banta and Gurjant @ Janta, have preferred this appeal against the judgment dated 7.12.2001 passed by the Sessions Judge, Sangrur, vide which he convicted them for the offences under Section 302/34 and 306 IPC and sentenced them as under:- ------------------------------------------------------------------------------------------------------------------------------------ Name Under Section Sentence Fine In default ------------------------------------------------------------------------------------------------------------------------------------ Bant Singh 302/34 Life imprisonment -- -- 306 IPC RI for 7 years Rs. 2,000/- RI for 6 months Gurjant Singh 302 IPC Life imprisonment -- -- ------------------------------------------------------------------------------------------------------------------------------------ 2. Gurnam Singh was also tried alongwith these accused but was acquitted. 3. For better appreciation of the facts of the case, the following pedigree table is very much relevant. Bhajan Singh | ---------------------------------------------------------------------------- | | Nihal Singh Amar Singh- deceased | (wife Nand Kaur) | | ----------------------------------- --------------------------------------- | | | | | Sadh Ram Ram Singh Paramjit Kaur Gurnam Singh Chand Singh (victim) (victim) married to accused (acquitted) | Didar Singh | | (PW-15) s/o | | complainant | Bhola Singh ---------------------------------- deceased | | (wife Jasbir Bant Singh Gurjant Singh Kaur PW9) Accused Accused 4. Nihal Singh was having agricultural land measuring 38 killa situated in village Bishanpura Khokhar and Harigarh Gahilan. Similarly Gurnam Singh also had about 20 killa of land in those villages, adjoining the land of Nihal Singh. There had been friction between their families on account of partition of that land. However, they had again joined hands with each other about three years before the present occurrence. They had constructed a samad of Baba Sant Puri in the land of Nihal Singh situated in village Harigarh Gahilan and 4/5 rooms had been constructed at that place. The members of both these families had been looking after and offering their services at that Smadh. The people of the village and outsiders had been coming to that Smadh on the date of fullmoon (puranmashi) for paying their obeisance and for doing the worship. The offerings made by the people at the Dera used to be kept by Bant Singh. Paramjit Kaur daughter of Nihal Singh was married to Didar Singh (PW-15), son of Jarnail Singh, complainant (PW-1) about 12/13 years back. 5/6 days before 20.1.1998, she alongwith Didar Singh had come to her in-laws in village Bishanpur Khokhar. The offerings made by the people at the Dera used to be kept by Bant Singh. Paramjit Kaur daughter of Nihal Singh was married to Didar Singh (PW-15), son of Jarnail Singh, complainant (PW-1) about 12/13 years back. 5/6 days before 20.1.1998, she alongwith Didar Singh had come to her in-laws in village Bishanpur Khokhar. When they did not return to their village, the complainant went to the said village, where Hardev Kaur wife of Nihal Singh met him and on inquiry, she disclosed that all the members of the family had gone to the Smadh since the day of fullmoon. Thereafter, he also went to that place and found his son Didar Singh, daughter-in-law Paramjit Kaur and all the three accused, present there, alongwith Bhola Singh, Meghar Singh son of Chand Singh, Jasbir Kaur wife of Bhola Singh, Nand Kaur, Nihal Singh, Sadh Ram, Ram Singh, Surjit Kaur wife of Sadh Ram, Harjit Kaur wife of Ram Singh. All of them were being served with liquid from trough by Bant Singh and Gurjant Singh on the pretext that they were being administrated amrit (nectar). Bant Singh was holding a dang in his hand. All were following the order of Bant Singh and were doing the same act as was being asked to do by those accused. Bant Singh asked the complainant also to drink that liquid by taking it to be nectar but he refused to take the same. At that time that accused was giving blows with the dang to Sadh Ram and Ram Singh by saying that he was incarnation of the God and was giving those blows with the dang in order to put an end to their re-birth and for achieving the salvation. The complainant was also made to sit with them and when he tried to resist Bant Singh, he gave 2/3 slaps on his face and told that he has also achieved the salvation. Thereafter that accused got ploughed from Sadh Ram and Ram Singh two killas of land of Nihal Singh, where the wheat crop and potatoes plants were standing by saying that a gaushala was to be constructed at that place, as he has been offered chola of Baba Sant Puri. Thereafter that accused got ploughed from Sadh Ram and Ram Singh two killas of land of Nihal Singh, where the wheat crop and potatoes plants were standing by saying that a gaushala was to be constructed at that place, as he has been offered chola of Baba Sant Puri. Thereafter, he took a pair of scissors and with the help of Gurjant Singh accused, cut the long hair of Sadh Ram and Ram Singh and also removed their “gatras”(small kirpan worn by amritdhari sikh in a cloth belt). All of them were threatened by the accused that in case they disclosed the things happening in the Dera to any one outsider, he would be reduced to ashes. On 21.1.1998, at about 5 a.m. on the asking of Bant Singh, Gurjant Singh dragged Nand Kaur towards Bhakra canal and threw her into the same with the intention to kill her. After seeing that occurrence, Bhola Singh also jumped into the canal. All the members of these families received injuries. Ram Singh and Sadh Singh were admitted in Sandhu Nursing Home at Patiala, whereas Surjit Kaur and Nihal Singh were admitted in Parkash Mission Hospital at Tohana. Ram Singh and Sadh Singh were found in acute stress and injuries were found on the persons of Surjit Kaur and Nihal Singh. On 24.1.1998, Bhupinder Singh ASI, (PW- 17), alongwith other police officials, was present near the bridge of canal in the area of Mahasingh Wala when the complainant went to him and made statement Ex. PA about the above said facts. The ASI, after making his endorsement, Ex. PA/1 upon the same, sent that to the Police Station and on the basis thereof, formal FIR Ex. PA/2 was recorded against the accused under Sections 307, 506, 323, 427, 120-B, 295-A/34 IPC. Accompanied by the complainant, the ASI went to the place of occurrence and after inspecting the same, prepared rough site plan Ex. PV with correct marginal notes. One dang Ex. P.1 was recovered from that place, which was converted into a parcel and was sealed by the ASI with his seal ‘BS’. One pair of scissors Ex. P2, two gatras Ex. P3 and P4 and a trough Ex. P5 were also recovered. All those articles were taken into possession, vide memo Ex. PB. One dang Ex. P.1 was recovered from that place, which was converted into a parcel and was sealed by the ASI with his seal ‘BS’. One pair of scissors Ex. P2, two gatras Ex. P3 and P4 and a trough Ex. P5 were also recovered. All those articles were taken into possession, vide memo Ex. PB. Cut hair were also found at that place, which were converted into a parcel and the same was sealed with the seal ‘AS’. That sealed parcel was taken into possession, vide the same recovery memo. On 24.1.1998 itself, an information was given by Ram Pal and Dhani Ram Lambardar to Gulshan Kumar ASI, (PW-19) of Police Station Bhattu Kalan, District Fatehgarh, that dead body of an old lady aged 70-75 years, wearing salwar, was lying in the canal minor. Accompanied by the photographer, he went to the place so disclosed by Ram Pal and Dhani Ram and found the dead body of an old lady, which could not be identified. The photographer took the photographs Exs. P18 to P.25 of that body. The ASI prepared the inquest report Ex. PC and sent the same for post-mortem examination. The autopsy was conducted by Dr. Sangeeta Malh, General Hospital, Fatehgarh (PW-4), and found that the cause of death was asphyxia, as a result of drowning, which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The salwar and the dead body were handed over to the police. On 28.1.1998 Bhupinder Singh, ASI arrested Bant Singh, Gurjant Singh and Gurnam Singh accused. Statements of the witnesses were recorded under Section 161 of Cr.P.C. They stated that liquid from the trough was served by Gurjant Singh to them, one by one and at that time Gurnam Singh accused had been holding the arms from the back side of each person and Bant Singh was giving blows with the help of dang by saying that they have achieved the salvation and will not take re-birth. On 29.1.1998, the complainant and others spotted the dead body of Bhola Singh, which was floating in the Bhakra Canal. They fished out the dead body and informed Bhupinder Singh ASI, who came to the spot and prepared the inquest report Ex. PD in respect of the dead body and sent the same for post-mortem examination, which was conducted by Dr. They fished out the dead body and informed Bhupinder Singh ASI, who came to the spot and prepared the inquest report Ex. PD in respect of the dead body and sent the same for post-mortem examination, which was conducted by Dr. Vijay Grover (PW-3), who gave his opinion that the cause of death was drowning which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. On 23.2.1998, accompanied by Anoop Singh, ASI and Bhupinder Singh, ASI, the complainant went to the Police Station Tohana and identified the dead body of that unknown lady recovered on 14.1.1998 as that of Nand Kaur, on the basis of the photographs and the salwar. After completion of the investigation, the challan was put in before Judicial Magistrate, who committed the same to the Court of Session on the ground that the offences under Sections 302 and 306 IPC were exclusively triable by the Court of Session. 5. After going through the documents sent alongwith the police report and relied upon by the prosecution, the learned Sessions Judge, found sufficient grounds for presuming that Gurjant Singh accused committed offences punishable under Sections 302, 306, 440, 427 and 323/34 IPC, Bant Singh accused committed offences punishable under Sections 302/34, 306/34, 440/34, 427 and 323 IPC, whereas Gurnam Singh accused committed offences punishable under Section 302/34, 306, 440/34, 427 and 323/34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. 6. To bring home the guilt of the accused, the prosecution examined Dr. Jarnail Singh (PW-1), Dr. S.S. Sandhu (PW-2), Dr. Vijay Grover (PW-3), Dr. Sangeeta Mehta (PW-4),Pawan Kumar (PW-5), Charan Singh ASI (PW-6), Deva Singh, HC (PW-7), Bhagwan Dass (PW-8), Jasbir Kaur (PW-9), Ramesh Kumar (PW-10), Dewan Chand (PW-11), Sadh Ram (PW-12), Ranjit Singh, HC (PW-13), Manphool Singh, HC (PW-14), Didar Singh (PW-15), Vaheguru Singh, HC (PW-16), Bhupinder Singh, ASI (PW-17), Swaran Singh, Inspector (PW-18), Gulshan Kumar, ASI (PW-19) and Dr. Rajesh Goel, (PW-20). 7. After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence. 7. After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence. They pleaded that Nihal Singh used to work as a tantrik at the said Smadh and once he declared his son dead and called the people to show his malafide activity of putting the soul in the dead person so as to make his son alive. Nihal Singh was inimical towards them and wanted to grab their land for which he had been giving threats to them. They never worked at the Smadh nor ever collected the income from that place and the same was being collected by Nihal Singh. Nand Kaur was in the hands of Nihal Singh and she might have been concealed by him in order to involve them in a false case or for getting her killed. They had never given any such nectar type water to any person nor they had thrown Nand Kaur in the canal nor instigated Bhola Singh to jump into the canal. A false story has been concocted by the complainant party. When they were called upon to enter on their defence they examined Dr. Roop Chand Bansal (DW-1) and Ajaib Singh, HC (DW-2), in their defence evidence. 8. We have heard learned counsel for both the sides. 9. While challenging the conviction and sentence so recorded by the trial court, it was submitted by their counsel that FIR in this case is belated one and the same itself is fatal to the prosecution, as no explanation whatsoever has been offered for the delay. The prosecution made half hearted attempt to explain the delay by producing evidence to the effect that the injured were lying in the hospital and that Jarnail Singh complainant (PW-1) was under severe shock. The prosecution made half hearted attempt to explain the delay by producing evidence to the effect that the injured were lying in the hospital and that Jarnail Singh complainant (PW-1) was under severe shock. However, from the conduct of that complainant, as reflected from his cross-examination, it is very much clear that after the occurrence, he was absolutely normal and, according to him, the people of the village had collected at the canal and they tried to find out the dead bodies after those villagers reached the spot and, thus, it cannot be said that he was scared of the accused or that he was under shock. He was in a position to report the matter to the police and should have done so, being closely related to the complainant party. In fact, that delay has been utilized by the complainant party to concoct a false version and to implicate the accused falsely in order to wipe out the family of Amar Singh, so that the family headed by Nihal Singh may be able to usurp all the offerings of the Dera Nand Puri, which was being looked after and served by both the families. That is also a motive on the part of the complainant party to falsely implicate the accused. Though the prosecution case has been supported by a number of alleged eye witnesses, yet there statements do not inspire any confidence and are not of that standard so as to sustain the conviction of the accused. All of them made a number of improvements, while making those statements in the Court and are full of embellishment. The main improvement made by them is regarding the accused instigating Bhola Singh to jump into the canal. In their statements before the police made during the investigation, they never stated so and in those statements they stated that Bhola Singh himself jumped into the canal. He further submitted that ocular evidence stands totally contradicted by the medical evidence and that shows that the ocular evidence is not reliable and dependable. As per the medical evidence, Nand Kaur deceased had died somewhere on 15.1.1998, which totally falsify the prosecution version that she was thrown into the canal on 21.1.1998. Similarly, as per medical evidence, death of Bhola Singh took place between 22.1.1998 to 24.1.1998 and that falsifies the fact that he jumped into the canal on 21.1.1998. As per the medical evidence, Nand Kaur deceased had died somewhere on 15.1.1998, which totally falsify the prosecution version that she was thrown into the canal on 21.1.1998. Similarly, as per medical evidence, death of Bhola Singh took place between 22.1.1998 to 24.1.1998 and that falsifies the fact that he jumped into the canal on 21.1.1998. In these circumstances, the conviction and sentence of the accused cannot be sustained and they are entitled to acquittal. 10. On the other hand, learned State counsel tried to support the conviction and sentence so recorded by the trial court, by contending that the delay in lodging the FIR stands explained satisfactorily from the evidence produced by the prosecution to the effect that two of the injured, who received the injuries at the hands of the accused, were lying admitted in the hospital and the other two affected persons were under severe shock and depression and they were also under treatment in the hospital upto 25.1.1998. After having witnessed this horrifying incident, the complainant was under severe shock and when he got recovered from the shock, he immediately reported the matter to the police. The statement made by the complainant in the Court fully supports the prosecution version and he has been fully supported and corroborated by Jasbir Kaur (PW-12), Sadha Ram (PW-12) and Didar Singh (PW-15), who witnessed this occurrence with their own eyes and Sadha Ram (PW-12), who himself was a victim. The statements so made by them inspire full confidence. Merely on the ground that the medical evidence is not consistent with that ocular evidence, it cannot be held that the same becomes unreliable or unworthy of belief. The medical evidence is only opinion evidence and much weight is to be given to the ocular evidence. The body of Nand Kaur was liable to putrefaction speedily as she was a very weak old woman having very weak muscles. Merely in view of the opinion of the doctor regarding the time of death, the cogent and convincing ocular evidence produced by the prosecution cannot be disbelieved. The guilt of the accused firmly stands proved from the statements of those eye witnesses, who had no animus to depose against the accused and are most reliable and material witnesses. He prayed for the dismissal of the appeal. 11. The present occurrence consists of two parts. The guilt of the accused firmly stands proved from the statements of those eye witnesses, who had no animus to depose against the accused and are most reliable and material witnesses. He prayed for the dismissal of the appeal. 11. The present occurrence consists of two parts. The first part of the occurrence took place on 20.1.1998 and the second part took place on 21.1.1998. The above named witnesses are witnesses of both those parts of the occurrence. Jarnail Singh complainant (PW-1) appeared on the scene subsequently, as according to the prosecution, the starting point was the full moon day (Puranmashi), which was about 3-4 days before 20.1.1998. As per the prosecution version, it was Jasbir Kaur (PW-9), Sadh Ram (PW-12) and Didar Singh (PW-15) who were at the Dera of Sant Puri since the day of full moon. Sadh Ram (PW-12), while making his statement in the Court, deposed about the facts, which constitute the prosecution version and are detailed in para 2 of the judgment. His statement has been supported by the other said eye witnesses. According to Bhupinder Singh, ASI (PW-17), on 24.1.1998 Jarnail Singh came to him when he was present near the bridge of the canal in the limits of Mahasingh wala and made his statement Ex. PA, on the basis of which FIR Ex. PA/2 was recorded. This statement was made by the complainant at 8.30 a.m. and the FIR was recorded at 9.30 a.m. Thus, there is not a delay of few hours but delay of days in lodging the FIR. Can it be said that the prosecution has offered the explanation for that delay and the same reasonable? The complainant (PW-1) had not disclosed the facts to anyone, as according to him, on account of the threats given by the accused, he was too much horrified. Though the prosecution has examined Dr. S.S. Sandhu (PW-2) for proving that Ram Singh and Sadh Ram were admitted in the Nursing Home from 21.1.1998 to 25.1.1998 and Dr. The complainant (PW-1) had not disclosed the facts to anyone, as according to him, on account of the threats given by the accused, he was too much horrified. Though the prosecution has examined Dr. S.S. Sandhu (PW-2) for proving that Ram Singh and Sadh Ram were admitted in the Nursing Home from 21.1.1998 to 25.1.1998 and Dr. Rajesh Goel (PW-20) for proving that Surjit Kaur wife of Sadh Ram and Nihal Singh, who were having injuries on their person, were under his treatment from 22.1.1998 to 25.1.1998 yet that evidence cannot be looked into for the purposes of explanation for the delay, as the FIR was not recorded on the basis of the statement of any of those witnesses and their statements were recorded only under Section 161 Cr.P.C. after the criminal machinery had already been set in motion. However, the statements of these doctor witnesses may be relevant for explaining the delay in recording the statements of these prosecution witnesses. They might not have been in a position to lodge the FIR but there were other affected persons, who had witnessed the occurrence with their own eyes and could have reported the matter to the police. A minute perusal of the statement of the complainant Jarnail Singh (PW-1) leaves no doubt that immediately after the occurrence he was acting as a normal person and was in a position to approach the police and to report the matter. It is his own statement that after the occurrence, he accompanied by Didar Singh and his wife Paramjit Kaur and family of Nihal Singh went back to the house of Nihal Singh and thereafter he accompanied by his son and daughter-in-law returned to his village Datasingh wala. During his cross-examination, he stated that after the occurrence, he raised an alarm and people from the village reached that place, which included Norang Singh Sarpanch and Dhira. Those people brought ropes which were made to hang in the canal for the search of the dead bodies. It were the people from two villages, who collected at that place and even a cultivator tied with the tractor with the help of the rope was thrown into the canal for searching the dead bodies. The complainant left that place at 9 a.m. when the dead bodies were still being searched. It were the people from two villages, who collected at that place and even a cultivator tied with the tractor with the help of the rope was thrown into the canal for searching the dead bodies. The complainant left that place at 9 a.m. when the dead bodies were still being searched. He contradicted himself by deposing to the effect that from the spot, he was accompanied only by his son Didar Singh and his wife Paramjit Kaur and they had come back to their village on a motor-cycle. After so many persons had collected at the spot, and they had also come to know about the throwing of the body of Nand Kaur in the canal and jumping of Bhola Singh in the canal, there was no question of this witness being horrified or terrified on account of the threats, which, according to him, had been given by the accused. It was not his version that he was being followed by those accused when he was going to his village and as such, he could have approached the police immediately and lodged the report. He was not a stranger to the families of the accused or the complainant party. His son was married to Paramjit Kaur, who is daughter of Nihal Singh. It cannot be believed that he would have left the spot when dead bodies were still being searched and would wait for three days before approaching the police. In the present case, it cannot be said that the prosecution has been able to explain the delay in lodging the FIR. What is the effect of this delay ? 12. A Division Bench of this Court in Satnam Singh Versus State of Haryana 1989 (1) Recent Criminal Report, 435 held that the delay in lodging the FIR or in filing the complaint, would not per se be sufficient to disbelieve the prosecution story. Its only effect would be to scrutinize the evidence more thoroughly so as to sift the grain from chaff, or disentangle the truth from the falsehood. It would also be prudent to seek independent corroboration of the prosecution story on material aspects. It was held by the Hon’ble Supreme Court in the State of Rajasthan Versus Noore Khan 2000 (1) Apex Court Judgments, 530, that mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. It would also be prudent to seek independent corroboration of the prosecution story on material aspects. It was held by the Hon’ble Supreme Court in the State of Rajasthan Versus Noore Khan 2000 (1) Apex Court Judgments, 530, that mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for the delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. In Ravinder Kumar and another Versus State of Punjab 2001 (2) Apex Court Judgments 352, it was held as under:- “13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.” 13. As already stated above, the prosecution has failed to prove any reason or probable explanation for the delay. This delay may not in itself be a ground for discrediting or discarding the prosecution case, yet the same requires this Court to scrutinize the prosecution evidence with much care and caution as this delay gives an opportunity to the complainant party to introduce false and colourful version to implicate innocent persons and to introduce false witnesses. It is only when all these possibilities are excluded that the delay in lodging the FIR pales into insignificance and cannot be said to be fatal to the prosecution. It is only when all these possibilities are excluded that the delay in lodging the FIR pales into insignificance and cannot be said to be fatal to the prosecution. It is also to be noted that as per the endorsement made on the FIR, the special report was received by the Magistrate on 24.1.1998 at 7 p.m. that is almost after about 9 hours of the recording of the FIR. This will also require this Court to scrutinize the prosecution evidence very minutely. 14. No evidence has been produced by the prosecution for proving that the accused had the motive to cause the death of Nand Kaur or to abet the commission of suicide by Bhola Singh. As per the prosecution, there used to be a dispute between Nihal Singh and Amar Singh regarding their lands but the same had been settled about three years back and thereafter both the families had again joined hands and were offering their services at the Smadh of Nand Puri. The complainant (PW-10) and other witnesses have made the statements to the effect that offerings, which were being made by the people at this Smadh, were being collected by Bant Singh accused. It is an admitted fact that Smadh is in the land of Nihal Singh. Thus, the motive, if any, was on the part of the complainant party to falsely implicate the accused so as to remove them from that Smadh. From the above produced pedigree table, efforts on the part of the complainant are very much clear to wipe out the whole family of Amar Singh. Nand Kaur and Bhola Singh already either having died or killed, Gurnam Singh and both his sons Bant Singh and Gurjant Singh involved in this case. This fact has also to be kept in mind by the Court, while scrutinizing the statements of the said eye witnesses. The alleged eye witnesses so examined by the prosecution can be said to be interested, as all of them are from the family of Nihal Singh. This fact has also to be kept in mind by the Court, while scrutinizing the statements of the said eye witnesses. The alleged eye witnesses so examined by the prosecution can be said to be interested, as all of them are from the family of Nihal Singh. No doubt at the time of the alleged occurrence, only the members of those two families were present, but after Nand Kaur is said to have been thrown in the canal and Bhola Singh jumped into the canal, the people of two villages had collected there and they could have been examined in the Court for proving the facts which occurred in their presence. The prosecution did not examine any of those witnesses. That also makes it the onerous duty of this Court to be on guard and to scrutinize the statements of all these eye witnesses with more care and caution. 15. The most affected person in this case was Sadh Ram (PW-12), as, according to the prosecution, he was not only made to suffer at the hands of the accused by giving lathi blows, while administering nectar, but was made to cultivate and destroy the standing crops in two killas of his land and his long hair were also cut by the accused and the gatra, which was religious symbol, was alleged to have been removed by the accused. During his examination-in-chief, he fully supported the prosecution case. He stated that on the full moon day of January, 1998, all the members of the families had gone to Smadh, where Bant Singh accused told that he was incarnation of Baba Sant Puri and whosoever would act according to his wishes, would achieve salvation. They accepted Bant Singh as the incarnation of God and acted as per his wishes and kept on serving in the Dera in the manner directed by him for seven days. On 20.1.1998, Bant Singh told his coaccused Gurnam Singh and Gurjant Singh that all the persons present there were to be administered Amrit (nectar). Jarnail Singh complainant also came to that place. Gurjant Singh and Gurnam Singh brought some liquid in the trough from outside and Bant Singh told them to serve that liquid to all the persons present there. On 20.1.1998, Bant Singh told his coaccused Gurnam Singh and Gurjant Singh that all the persons present there were to be administered Amrit (nectar). Jarnail Singh complainant also came to that place. Gurjant Singh and Gurnam Singh brought some liquid in the trough from outside and Bant Singh told them to serve that liquid to all the persons present there. Gurjant Singh made everyone to sip that liquid from trough, whereas Gurnam Singh had been catching hold the arms of the person from the back side, who was being made to sip that liquid and Bant Singh had been giving stick blows to that person by saying that sins have been washed away and he would get salvation. Jarnail Singh complainant refused to sip that liquid on the ground that he had already been baptized. On this Bant Singh gave 2/3 slaps to Jarnail Singh and told that he would also get salvation. Thereafter, Bant Singh told him and his brother Ram Singh to plough their fields adjoining the Smadh, where wheat crop and potatoes were sown, for construction of a gaushala. He himself and Ram Singh brought a tractor and ploughed that land. Thereafter, he felt giddiness and fell on the ground. Then Bant Singh with the help of Gurnam Singh and Gurjant Singh removed the long hair from his head and that of his brother and also removed their gatras. According to him, the photographs were taken at that time by the photographer. The prosecution proved those photographs on the record. Similar, statements were made by Jasbir Kaur (PW-9) and Didar Singh (PW-15). Jarnail Singh (PW-10) deposed about the facts, which took place after he reached that Smadh on 20.1.1998. While narrating the incident of 21.1.1998, all of them stated that early in the morning at about 5 a.m. Bant Singh told Gurjant Singh to throw Nand Kaur in the canal for enabling her to get salvation. Thereafter, Gurjant Singh threw her in the canal. Gurnam Singh and Bhola Singh also followed them. Gurnam Singh declared that Nand Kaur had got salvation and asked Bhola Singh also to jump into the canal and accordingly he jumped into the canal. Thereafter, Gurjant Singh threw her in the canal. Gurnam Singh and Bhola Singh also followed them. Gurnam Singh declared that Nand Kaur had got salvation and asked Bhola Singh also to jump into the canal and accordingly he jumped into the canal. By way of corroboration, the prosecution produced the evidence to the effect that after the FIR was lodged, Bhupinder Singh, ASI (PW-17) came to the place of occurrence and in the presence of witnesses recovered a trough, a pair of scissors, cut hair and gatras of Ram Singh and Sadh Ram. The prosecution also proved on record the photographs, which were taken by the photographer on 20.1.1998. 16. This ocular evidence produced by the prosecution is to be scrutinized in the light of the medical evidence produced by it, in view of the arguments raised by the learned defence counsel. It was stated by Gulshan Kumar ASI (PW-19) that on 24.1.1998 he was informed by Ram Pal, resident of Jandhwala Bagar and Dhani Ram, Lambardar that body of a lady aged 70-75 years, wearing salwar, was lying in the canal minor. Thereafter, he visited the spot with photographer and prepared the inquest report Ex. PC in respect of the dead body and sent the same for post-mortem examination. According to Dr. Sangeeta Mehta (PW-4), she conducted the post-mortem examination on that dead body. She found all the organs to be healthy and gave her opinion that the cause of death was asphyxia as a result of drowning, which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. 17. This dead body was identified to be that of Nand Kaur by Jarnail Singh (PW-1) on the basis of photographs and the salwar which she was wearing. According to Dr. Sangeeta Mehta, the probable time between the death and the post-mortem examination was 10-14 days and was beyond 9 days. Thus, according to her, the deceased must have died on or before 15.1.1998. This opinion of the doctor is based upon the condition of the dead body at the time of post-mortem examination. According to her, the skin was wrinkled and peeled off at different places. The hair and nails were pluckable. Skin on the finger was missing and decomposed. Even the scalp was decomposed. 18. This opinion of the doctor is based upon the condition of the dead body at the time of post-mortem examination. According to her, the skin was wrinkled and peeled off at different places. The hair and nails were pluckable. Skin on the finger was missing and decomposed. Even the scalp was decomposed. 18. It is the case of the prosecution itself that Nand Kaur was thrown in the canal and the dead body was also recovered from the water. It was the month of January and judicial notice can be taken of the fact that it is winter during that month and the water of Bhakra canal is very cold in those days. As per the table contained in Modi’s Medical Jurisprudence and Toxicology, 23rd Edition, at page 443, very little change in the putrefaction takes place in the first four to five days, if the water is cold. Skin of the hands and the feet becomes sodden and bleached from five to seven days. The skin is wrinkled but the nail and hair still remain intact for four weeks. In the present case, skin had become wrinkled and the nail was pluckable at the time of the post-mortem examination. Therefore, the opinion of the doctor that the death must have taken place at least nine days before the post-mortem examination is fully supported by this author of the book, which is an acceptable book on the medical jurisprudence. The learned State counsel was not able to quote any such authoritative book so as to contradict the opinion of the doctor. Thus, the death of Nand Kaur had taken place much before 21.1.1998, when she is said to have been thrown in the canal. 19. According to Jarnail Singh (PW-1), the dead body of Bhola Singh was recovered from the canal on 29.1.1998. It was stated by Bhupinder Singh ASI (PW-17) that he prepared the inquest report Ex. PD in respect of this dead body and sent the same for post-mortem examination. According to Dr. Vijay Grover, (PW-3), he conducted the post-mortem examination on this dead body on 30.1.1998. There was no mark of any injury on the dead body. In his opinion, the cause of death was drowning, which was ante-mortem in the nature and was sufficient to cause death in the ordinary course of nature. 20. According to Dr. Vijay Grover, (PW-3), he conducted the post-mortem examination on this dead body on 30.1.1998. There was no mark of any injury on the dead body. In his opinion, the cause of death was drowning, which was ante-mortem in the nature and was sufficient to cause death in the ordinary course of nature. 20. He also stated that probable time between the death and the post-mortem examination was approximately one week. During his crossexamination, he stated that the same cannot be less than one week and would be 6-8 days. Thus, according to him, the death of Bhola Singh had taken place between 22.1.1998 to 24.1.1998 and it could not have taken place on 21.1.1998. In case of Bhola Singh also, the maximum putrefaction was found on face and neck and the skin of hands and feet were loose. In view of the reasoning given above, there is noting on the record to disbelieve the opinion given by this doctor. Keeping in view the science of post-mortem examination much weight is to be given that opinion, as the date of death can easily be fixed, keeping in view the nature of putrefaction of the dead body, the climatic condition and as to whether the dead body was in the water or otherwise. 21. Thus, ocular evidence produced by the prosecution totally stands contradiction by this medical evidence. It is well established law that if the ocular evidence is more trustworthy and reliable the same should be preferred to the medical evidence. If there is variance in the medical and ocular evidence, latter has to be accepted, provided that on judicial scrutiny it stands the test in crucible of probabilities. But where the medical evidence completely rules out taking place of the death, on a particular date, as alleged by the eye witnesses, then reliance is not to be placed on the statements of those eye witnesses, as that shows that they are not truthful witnesses and have not come to the Court with truthful version. Thus, in view of the impossibility of the death of Nand Kaur and Bhola Singh having not taken place on the date, as alleged by the eye witnesses, their statements can not be relied upon. Even otherwise, after the careful scrutiny of their statements, we have found that they are not truthful witnesses and have not come to the Court with true version. Even otherwise, after the careful scrutiny of their statements, we have found that they are not truthful witnesses and have not come to the Court with true version. 22. The conduct of all the said eye witnesses is highly improbable. If the happening about which they have deposed had taken place on 20.1.1998, they would not have stayed in the Dera at the Smad during the night of 20.1.1998. After Jarnail Singh (PW-1) was himself humiliated by the accused, he would not have stayed there. They have not stated as what they had been doing there during the night and what was the reason for them to get at 5 a.m. and to witness the said occurrence. They made material improvements, while making their statements in the Court and were duly confronted with their statements recorded by the police. Their statements are full of embellishment. It was never their version before the police that Gurnam Singh had instigated Bhola Singh to jump into the canal to achieve salvation and that version was introduced by them for the first time while making their statements in the Court. They have made discrepant statements as to whether Nand Kaur was dragged upto the canal before she was thrown into the same or she was physically lifted by Gurjant Singh and thrown into the canal. It is very much clear from their statements and the rough site plan prepared by the Investigating Officer that the canal does not adjoin the place where all of them are stated to be present before the occurrence. The distance between the two places is 40 karams. The accused were bound to take sufficient time to remove Nand Kaur to such a distance. It was stated by Sadh Ram (PW-12) during his cross-examination that the process of dragging Nand Kaur and jumping of Bhola Singh into the canal took about 45 minutes. When they had made their intention clear to throw her in the canal, these witnesses would not have permitted them to do so. Moreover, Nand Kaur was the mother of Gurnam Singh and grand mother of the other accused. Why they will throw their such a closely related person in the canal. These witnesses have also made discrepant statements as to whether the slaps were given at the face of Jarnail Singh or fist blows. Moreover, Nand Kaur was the mother of Gurnam Singh and grand mother of the other accused. Why they will throw their such a closely related person in the canal. These witnesses have also made discrepant statements as to whether the slaps were given at the face of Jarnail Singh or fist blows. It is the statement of Jarnail Singh (PW-1) and Sadh Ram (PW-12) that the former had left with Didar Singh and Paramjit Kaur for his village. Thus, according to them, the injured were not admitted in the hospital either by Jarnail Singh or Didar Singh. It is specific statement of Didar Singh (PW- 15) also that he never admitted any injured in the hospital. They stand contradicted from the record of Sandhu Nursing Home, proved by Dr. S.S. Sandhu (PW-2). As per those record, it was Didar Singh who admitted Ram Singh and Sadh Ram in that Nursing Home. 23. According to Jarnail Singh (PW-1), whole of the occurrence on 20.1.1998 had taken place in his presence. But he stands contradicted by Didar Singh (PW-15). According to him, the process of salvation had started on 20.1.1998 early in the morning at 5.30 a.m., whereas, Jarnail Singh came to that place at 8/8.30 a.m. As per the duration disclosed by the witnesses, the process of salvation must have finished before Jarnail Singh came to that place. According to Sadh Ram (PW-12), photographs were taken by the photographer on 20.1.1998 and those photographs were proved on the record by Dewan Chand, Photographer (PW-11) as Ex. P.18 to Ex. P.25. The prosecution has made an attempt to prove those photographs for corroborating the statements of the eye witnesses. In fact, those eye witnesses stand contradicted by Dewan Chand, Photographer (PW-11), as, according to him, he had reached the spot at 10.30 a.m. According to these eye witnesses, long hair of Sadh Ram and Ram Singh were cut by the accused during that period. If it was so, the photographer must have taken those photographs also. No doubt, according to the prosecution, cut long hair were recovered from the place of occurrence but no effort was made by it to take the specimen hair of Sadh Ram and Ram Singh for getting the same compared with the long hair to prove that those were of these two persons. No doubt, according to the prosecution, cut long hair were recovered from the place of occurrence but no effort was made by it to take the specimen hair of Sadh Ram and Ram Singh for getting the same compared with the long hair to prove that those were of these two persons. All the above said contradictions in the statements of the witnesses, in the light of the above discussed medical evidence show that these witnesses are not worthy of belief and the conviction of the accused could not have been recorded on the basis of their statements. Those contradictions further assume importance, in view of the delay in lodging the FIR which appears to have been utilized by the complainant party to falsely implicate the accused in order to totally wipe out the family of Amar Singh for enabling the family of Nihal Singh to usurp the Dera and offerings made at that place by the people visiting the Dera. The prosecution failed to bring home the guilt of the accused beyond reasonable doubt and the accused are entitled to the benefit of doubt. 24. In the result, this appeal is hereby accepted. The conviction and sentence of the accused is set aside. If they are in custody, they be set at liberty forthwith. Fine, if already deposited, be refunded to them. ---------0.B.S.0------------