JUDGMENT Mr. Hemant Gupta, J.:- Challenge in the present appeal is to the judgment dated 02.06.2005 passed by learned Sessions Judge, Gurdaspur, whereby it convicted the appellant for an offence punishable under Section 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/-. In default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for a period of six months. 2. The prosecution case was set up in motion on the basis of statement of Krishna Devi wife of Tarsem Lal made to SI, Dev Dutt (PW-9) when he was present near Malakpur Chowk, Sujanpur. The statement (Ex.PA) was recorded by SI Dev Dutt at about 11.30 AM. On the basis of the said statement, FIR (Ex. PA/2) was recorded at 11.50 AM. 3. As per the statement of Smt. Krishna Devi, her husband Tarsem Lal is the eldest son of Thuru Ram. Subhash Chander is his younger brother and the next is Shamsher Singh @ Shera. She states that her father-in-law has given 4 kanals of land to her husband Tarsem Lal out of his ownership. On 26.10.2002, at about 7.30 P.M., she and her husband were in their land and saw her dewar, the younger brother of her husband, Shamsher Singh @ Shera armed with dattar; Subhash Chander; her mother-in-law- Sarno Devi and her dewrani- Kiran Bala ploughing the land of Tarsem Lal measuring 4 kanals after hiring the tractor from Jaswant Singh son of Om Parkash of village Malakpur. Her husband asked the tractor driver to stop the tractor. The driver stopped his tractor. In the meantime, Sarno Devi and Kiran Bala raised lalkara to teach lesson to her husband-Tarsem Lal for stopping the tractor. Subash Chander got caught hold of her husband from his arms and Shamsher Singh @ Shera gave 4-5 dattar blows to Tarsem Lal hitting on the head and his face. One blow was given on his left leg which hit above the knee. Tarsem Lal fell on the ground. After causing the injuries, the assailants ran away from the spot. Tarsem Lal died on the spot. She and Jaswant Singh have witnessed the entire occurrence. One blow was given on his left leg which hit above the knee. Tarsem Lal fell on the ground. After causing the injuries, the assailants ran away from the spot. Tarsem Lal died on the spot. She and Jaswant Singh have witnessed the entire occurrence. The motive of the murder of Tarsem Lal was stated to be that her father-in-law had given 4 kanals of land to her husband-Tarsem Lal whereas the younger brothers of Tarsem Lal and her mother-in-law intended to forcibly occupy and cultivate that land and her husband was restraining them from doing so. 4. After the aforesaid FIR was lodged and special report was sent to the Magistrate, the inquest proceedings were prepared by PW-9 Dev Dutt, Station House Officer and the body was sent for the post-mortem examination. Post mortem was conducted by PW-2, Dr. Bhupinder Singh on 27.10.2002 at about 4.00 P.M. As per the post mortem report (Ex. PB), the deceased had suffered multiple injuries on his person. The doctor has deposed that the injuries could be caused by sharp edged weapon such as dattar (Exh. P-1), which was produced before him. 5. The Investigating Officer has taken into possession the blood stained earth from the place of occurrence. The accused-Shamsher Singh was arrested on 29.10.2002 and on the basis of his disclosure statement (Ex. PM), the place of hiding the dattar was demarcated and vide recovery memo (Ex. PQ), broken dattar was recovered on 29.10.2002 at the pointing of the appellant. On completion of the investigations including the statement of Jaswant Singh, the accused Shamsher Singh @ Shera was made to stand trial. Krishna Devi widow of Tarsem Lal was examined as PW-1. She deposed on 21.4.2003 that Subhash Chander, her mother-in-law- Sarno Devi and sister in law - Kiran Bala came with the tractor to plough their land. Since, her husband stopped the tractor driver, her mother-in-law, Sarno Devi and Sister-in-law Kiran Bala raised lalkara. Subhash Chander got caught hold the arms of her husband and Shamsher Singh @ Shera inflicted the dattar blow on the head and left leg of her husband and on other parts of the body. When she came forward to see her husband, she found her husband had succumbed to the injuries. Subhash Chander got caught hold the arms of her husband and Shamsher Singh @ Shera inflicted the dattar blow on the head and left leg of her husband and on other parts of the body. When she came forward to see her husband, she found her husband had succumbed to the injuries. On the basis of the said statement of Krishna Devi, Public Prosecutor filed an application under Section 319 of the Code of Criminal Procedure to summon the aforesaid named persons to stand trial along with the present appellant. But such application was dismissed on 13.5.2003. 6. In her cross-examination, she deposed that she has no talk with any respectable of the village and during the night she had not come to her house and remained in the fields till next morning. She further stated that when Sarpanch reached the spot in the morning, she along with the Sarpanch went to the police station at about 10.45 A.M but she had not talked to the Sarpanch with regard to the occurrence when he reached at the spot. She stated that she could not intervene at that time when her husband was subjected to assault by the accused as she was also being threatened. She deposed that she remained near the dead body of her husband. She did not pour water into the mouth of her husband. She denied that it was a blind murder and she has not seen the occurrence. She did admit that her fatherin- law has filed a suit against her for declaration that the sale deed executed by him is the result of fraud. It may be stated that the said civil suit (Ex. D- 1) was filed on 7.1.2003 wherein Thuru Ram has sought to avoid the sale deed dated 16.12.2002 in respect of the land measuring 4 kanals 2 marlas allegedly executed by him in favour of Krishna Devi and her two sons Hoshiar Singh and Rakesh Kumar. 7. The prosecution had also examined the tractor-driver Jaswant Singh son of Om Parkash who was driving the tractor at the time of occurrence on 26.10.2002 as PW 4. He deposed that at about 7.30 P.M., Shamsher Singh @ Shera along with his brother’s wife Asha Rani were working in their own field. Shamsher Singh and his wife were spreading parali in their field. He stopped ploughing of the fields when Tarsem Lal reached. He deposed that at about 7.30 P.M., Shamsher Singh @ Shera along with his brother’s wife Asha Rani were working in their own field. Shamsher Singh and his wife were spreading parali in their field. He stopped ploughing of the fields when Tarsem Lal reached. Shamsher Singh inflicted 5-6 dattar blows on the left leg and on the left side of his face near the ear. He and Krishna Devi became panicky and hide themselves in the orchard. He has deposed that his statement was recorded by the police in the next morning. In the cross-examination, he stated that he came back from the spot at about 1.30/2 A.M and his signatures were obtained by the police on the next day at about 8.30 A.M. He was called to the police station on the third day but his statement was not recorded. He denied the suggestions that it was a blind murder and that the police has come to the spot at noon time. 8. On the basis of such evidence, learned trial Court recorded a finding of commission of crime by the appellant and convicted him to sentence as mentioned above. Learned trial Court found that the presence of the complainant at the time of occurrence was natural as she is the wife of the deceased. It was found that there is nothing on the record to disbelieve the statement of Jaswant Singh. It was also recorded that there is no evidence in respect of civil litigation among the parties at the time occurrence and the delay in lodging of FIR mandates that the evidence be examined with great care and caution. Delay itself is no ground for acquittal of accused. In respect of the discrepancies regarding the place and time of recording statement of the complainant, it was held that the complainant- Krishna Devi and Jaswant Singh are not well educated and that widow cannot be expected to narrate all the facts minutely. Out of curiosity, sometime date and time are not correctly disclosed. Jaswant Singh was not found inimical towards the accused and there is no material to disbelieve Jaswant Singh. Minor discrepancies cannot form basis of the acquittal of accused. 9. Having gone through the records of the case and the statement of the witnesses carefully, we find that the judgment of conviction dated 2.6.2005 recorded by learned Sessions Judge suffers from patent illegality. Minor discrepancies cannot form basis of the acquittal of accused. 9. Having gone through the records of the case and the statement of the witnesses carefully, we find that the judgment of conviction dated 2.6.2005 recorded by learned Sessions Judge suffers from patent illegality. It was categorical case of the Krishna Devi, the author of the FIR that there was lalkara by her mother-in-law, Sarno Devi i.e. the wife of Thuru Ram, and wife of Subhash Chander brother of Tarsem Lal namely Kiran Bala. She is also categorical in her statement (Ex. PA) and in Court as PW-1 that Subhash Chander caught hold of the deceased and then Shamsher Singh @ Shera inflicted the dattar blows on Tarsem Lal. However, Jaswant Singh as PW-4 has not deposed in respect of any lalkara by Sarno Devi and Kiran Bala or the fact that Subhash Chander got caught hold of the deceased. She has deposed that the said persons came with Jaswant Singh but Jaswant Singh has stated that the wife of Thuru Ram-Sarno Devi and Asha Rani wife of another brother of the deceased were in the field. The material discrepancies in respect of the number of persons present at the place of occurrence and the manner of occurrence shows inherent improbabilities in the evidence of the prosecution. 10. As per the prosecution case, Tarsem Lal was inflicted dattar blows at 7.30 P.M. on 26.10.2002. The statement of Krishna Devi wife of Tarsem Lal was recorded at 11.30 A.M. i.e. after 16 hours of the occurrence. As per the prosecution, she was with the deceased at the time of occurrence along with Jaswant Singh with his tractor. She has deposed that she has not even poured water into the mouth of her husband. The explanation given in the prosecution is that she was threatened and, therefore, she could not gather courage to take care of her husband or to lodge the report. The police station where the said FIR was lodged is 3 kms away from the place of occurrence. We find that the explanation of the prosecution in lodging of FIR is unbelievable. As per the prosecution case, the assailants ran away from the spot after inflicting blows. The police station where the said FIR was lodged is 3 kms away from the place of occurrence. We find that the explanation of the prosecution in lodging of FIR is unbelievable. As per the prosecution case, the assailants ran away from the spot after inflicting blows. If the assailants have fled away from the spot there was no reason for the complainant-Krishna Devi and Jaswant Singh who was with his tractor at the place of occurrence to remove the injured or the deceased to hospital or lodge the report to the police. The conduct of Krishna Devi-wife of Tarsem Lal and that of Jaswant Singh belies normal human behavior in such like circumstances. The theory of threatening the complainant and Jaswant Singh is made up story and is unbelievable. As per Jaswant Singh, he came back from the spot at about 1.30/2 A.M., i.e. the mid night and his statement was recorded at 8.30 A.M i.e. much before the statement of complainant which was recorded at 11.30 A.M. 11. In view of the aforesaid circumstances, the prosecution story as set up is unbelievable and leads to an inference that the complainant- Krishna Devi and Jaswant Singh were not present at the place of occurrence and have been introduced subsequently. There was no reason as to why Krishna Devi and Jaswant Singh will not report about the incident to the police station located at 3 miles from the place of the occurrence and not to provide any medical assistance to her husband-Tarsem Lal. 12. In view of the above, we do not find that the findings recorded by the learned trial Court are sustainable in law. Consequently, the appeal is allowed. We set aside the judgment of conviction and order of sentence dated 02.06.2005 passed by the learned Sessions Judge, Gurdaspur and acquit the appellant Shamsher Singh @ Shera of the charges framed against him by granting him benefit of doubt. He shall be set at liberty forthwith, if not required in any other case. ---------0.J.S.K.0-----------