JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 26-08-1997 passed by Additional Sessions Judge, Janjgir District Bilaspur, in Sessions Trial No. 64/1991. By the impugned judgment, the appellants were convicted and sentenced in the following manner with a direction to run the sentences concurrently:-- Conviction Sentence Under Section 148 IPC Rigorous Imprisonment for 2 year and to pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for six months Under Section 302/149 IPC Imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for six months Case of the prosecution, in brief, is as under: On the date of incident i.e. 01/10/1989 at about 11-12 in the day deceased Gangaram was returning after grazing catties. When he was passing in front of the mill of Neelkanth (PW-17), appellants surrounded him and assaulted him with deadly weapons. Gangaram sustained injuries. He was taken to Primary Health Center (for short P.H.C.) Shivrinarayan for medical examination vide Ex.P.-27. Dr. R. Jeetpure (PW-11) examined him and gave his report (Ex.P-18) in which he found (i) incised wound 5 c.m. X 1 c.m. into muscle deep behind left ear, blood was coming out (2) lacerated wound 5 c.m. X 1½ c.m. X muscle deep over the top of the head obliquely situated (3) A bruise 3 c.m. X 5 c.m. over left arm oblique. He referred Gangaram to District Hospital Bilaspur for further treatment. Gangaram died during the treatment. Intimation was sent to Police Station City Kotwali, Bilaspur vide Ex. P.-30. Merg Intimation (Ex. P-29) was recorded in Police Station City Kotwali, Bilaspur, thereafter regular First Information Report Ex. P-26 was recorded in Police Station Shivrinarayan. The Investigating Officer reached District Hospital Bilaspur, gave notice (Ex. P-3A) to panchas and prepared inquest (Ex. P-4) on the dead body of deceased. The dead body was sent to Government Hospital Bilaspur for post mortem examination vide Ex. P24. Dr. P.R. Bhattacharya (PW-13) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-23), in which he found near about 11 injuries on the dead body of deceased. These injuries were ante-mortem and cause of death was massive intracranial injury and the death was homicidal in nature. P24. Dr. P.R. Bhattacharya (PW-13) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-23), in which he found near about 11 injuries on the dead body of deceased. These injuries were ante-mortem and cause of death was massive intracranial injury and the death was homicidal in nature. In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex. P-1. Memorandum statement of appellant Jondhu was recorded under Section 27 of the Evidence Act vide Ex. P-5 and at his instance lathi was seized vide Ex. P-16, memorandum statement of appellant Ramnath was recorded vide Ex. P-6 and at his instance lathi was seized vide Ex. P-15, memorandum statement of appellant Chhota @ Jivanlal was recorded vide Ex. P-7 and at his instance lathi was seized vide Ex. P-14, memorandum statement of appellant Kodan was recorded vide Ex. P-8 and at his instance lathi was seized vide Ex. P-13, memorandum statement of appellant Madanlal @ Krishndutt was recorded vide Ex. P-9 and at his instance lathi was seized vide Ex. P-12, memorandum statement of appellant Rajendra was recorded vide Ex. P-10 and at his instance Tangi was seized vide Ex. P-11. Spot Map (Ex. P-25) was prepared by Patwari Harish Chand Rathor (PW-18). After completion of the investigation, charge-sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session Bilaspur, from where it was received on transfer by Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the appellants as mentioned above. Appellant Madanlal @ Krishndutt had died during the pendency of this appeal, therefore, his appeal has abated. 2. Shri Neeraj Mehta, learned counsel for the appellants has argued that the finding recorded by trial Court that all the accused persons had assaulted the deceased is incorrect. A correct appreciation of evidence would show that there is nothing to implicate them in any of the overt acts. Copy of the FIR had not been sent to the Magistrate as required under Section 157 of the Code. He further argued that there was party bandi in village Misda and the relation between the appellants and the deceased party were inimical due to previous animosity. Copy of the FIR had not been sent to the Magistrate as required under Section 157 of the Code. He further argued that there was party bandi in village Misda and the relation between the appellants and the deceased party were inimical due to previous animosity. The prosecution witnesses have tried to rope in number of persons though they had no role to play in the commission of the crime in question. He further argued that Dhan Kunwar (PW-7) changed her version on many occasions; though she was wife of the deceased and was highly interested witness. There are inconsistencies between the oral evidence and the medical evidence. There is no independent eye-witnesses. Bhakulal @ Shyamlal (PW-5) has not supported the case of the prosecution and the evidence of Dhan Kunwar (PW-7) Tulsi Prasad (PW-8) is not specific about the overt acts of the appellants. Babulal (PW-10) has given altogether different story, therefore, above witnesses are not reliable. Mr. Mehta has also argued that initially Police had arrested Neelkanth (PW-17) and charge sheet was prepared against Neelkanth (PW-17), but without assigning any reason Neelkanth (PW-17) was discharged by the Police and thereafter appellants were arrested and charge sheet was filed against the appellants. Therefore, the entire case of the prosecution is suspicious hence, the appellants deserve to be acquitted. 3. Learned counsel for the appellants placed reliance on Shivlal and another Vs. State of Chhattisgarh (2011) 9 SCC 561, Eknath Ganpat Aher and others Vs. State of Maharashtra and others (2010) 6 SCC 519 and Amar Singh and others Vs. State of Punjab AIR 1987 SC 826 . 4. On the other hand, Shri Surya Kant Mishra, Panel Lawyer for the State/respondent has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties. 6. Dhan Kunwar (PW-7, wife of the deceased) deposed that appellant Rajendra, Madan @ Krishndutt (dead), Kodan, Chhota @ Jivan, Ramnath, Jondhu, Chhedi, Sonsai had killed her husband Gangaram. They assaulted the deceased with Tangi and Lathi. She witnessed the incident from a distance of about 20 to 25 hands. They assaulted the deceased and fled from there. She further deposed that the deceased was taken to Shivrinarayan Hospital by a truck. Tulsi Prasad (PW-8) and Babulal (PW-10) deposed that the appellants had assaulted the deceased with Tangi and Lathi. She witnessed the incident from a distance of about 20 to 25 hands. They assaulted the deceased and fled from there. She further deposed that the deceased was taken to Shivrinarayan Hospital by a truck. Tulsi Prasad (PW-8) and Babulal (PW-10) deposed that the appellants had assaulted the deceased with Tangi and Lathi. Tulsi Prasad (PW-8) deposed that appellant Rajendra was having Tangi, Chhedi was having Chaku and other appellants were having Lathi in their hands. 7. Now we shall examine whether the evidence of above witnesses are reliable and can be based for conviction. 8. Dhan Kunwar (PW-7) has deposed that the police had recorded her statement twice and on the basis of her statement, initially police had arrested Neelkanth with 4-5 other persons. Thereafter police again recorded the statement and then appellants were arrested by the Police. 9. Babulal (PW-10) deposed that there was "party bandi" in village Misda. The deceased was in his party and the appellants were belonging to the other party. He further deposed that it is true that the appellants Kodan, Ramnath, Madanlal, Sonsai and Jondhu, have wrongly and falsely implicated in the instant case. 10. Dhan Kunwar (PW-7) deposed in her examination-in-chief that she had witnessed the incident from a distance of 20 to 25 hands. In Para-3 of her deposition she deposed that she witnessed the incident from the roof of the house. Thereafter, she reached the place of occurrence. However, in cross-examination in para-12, she deposed that on having heard shouting she reached the place of occurrence and at that time the assailants were running away. She further deposed that the police had recorded her statement after 15 days of the incident. 11. Tulsi Prasad (PW-8) deposed that when he reached the place of occurrence, by that time the assailants had fled away from the place of occurrence. In Para-5 of his cross-examination he deposed that the assailants of Gangaram escaped from the place of occurrence, therefore, he did not know which assailant was having which kind of weapons. 12. Babulal (PW-10) has deposed that near about 15 persons had surrounded and they assaulted the deceased with Lathi and Tangi, at that time Rajendra was having Tangi and other persons were having Lathi. 13. In Eknath Ganpat Aher and others Vs. State of Maharashtra and others (2010) 6 SCC 519 (Supra), Hon'ble the Supreme Court held thus:-- 26. 12. Babulal (PW-10) has deposed that near about 15 persons had surrounded and they assaulted the deceased with Lathi and Tangi, at that time Rajendra was having Tangi and other persons were having Lathi. 13. In Eknath Ganpat Aher and others Vs. State of Maharashtra and others (2010) 6 SCC 519 (Supra), Hon'ble the Supreme Court held thus:-- 26. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the courts are called upon to be very cautious and shift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them. 14. Tulsi Prasad (PW-8) has admitted that his relation was inimical with deceased Gangaram due to old land dispute. Therefore, he had animosity against the appellants. Babulal (PW-10) has also admitted that there was group rivalry in Village Misda. He belongs to one party and the appellants belong to opposite party and their relation was inimical to each other. 15. That apart, Tijram Dewangan, Padman Lal, Lakhan Lal and Vishnu Prasad were material witnesses for the prosecution. But, the prosecution did not examine them. This was fatal to the case of the prosecution and adverse inference can be drawn. According to prosecution Bhakulal @ Shyamlal (PW-5) and Anand Das (PW-6) were also eye witnesses but they did not support the case of the prosecution. 16. Dhan Kunwar (PW-7) is widow of deceased Gangaram. She was an eye-witness. Though, the incident took place on 01/10/1989, her statement was recorded on 20/10/1989 i.e. after 19 days of the incident. The delay in recording statement of witnesses by itself is not sufficient to suspect prosecution version if the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as possible. However, delay in recording statement of important witnesses without reasonable explanation creates doubt about genuineness of prosecution case. In the instant case, Dhan Kunwar (PW-7) was an eye-witness and she was a material witness, but her statement under Section 161 Cr.P.C. was recorded after 19 days. However, delay in recording statement of important witnesses without reasonable explanation creates doubt about genuineness of prosecution case. In the instant case, Dhan Kunwar (PW-7) was an eye-witness and she was a material witness, but her statement under Section 161 Cr.P.C. was recorded after 19 days. The prosecution has not offered any proper and plausible explanation relating to delayed recording of the statement of Dhan Kunwar (PW-7) under Section 161 Cr.P.C. after 19 days. In the absence of any explanation, the evidence of Dhan Kunwar (PW-7) does not appear to be reliable. 17. Babulal (PW-10) deposed that 15 persons came and surrounded and assaulted the deceased Gangaram. But he did not specifically depose that which appellant assaulted the deceased with which weapons. Therefore, such omnibus and vague statement of Babulal (PW-10), in light of evidence of party bandi cannot be reliable. It is an admitted proposition that in case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. 18. Sub-Inspector Anil Tiwari (PW-19) deposed that Tijram Dewangan had lodged the First Information Report in Police Station Shivrinarayan. He had recorded FIR No. 152/89 for offences under Section 147, 148, 149, 307 IPC and had sent the injured Gangaram to Primary Health Centre Shivrinarayan. In his cross examination, in Para-23 he deposed that the copy of FIR was not sent to concerned Magistrate. After perusal of the case diary he stated that there is no certificate in regard to sending copy of FIR to concern Magistrate. 19. In Shivlal and another Vs. State of Chhattisgarh, Hon'ble the Supreme Court observed thus:-- 18. This Court in Bhajan Singh v. State of Haryana ( (2011) 7 SCC 421 : (2011) 3 SCC (Cri.) 241) has elaborately dealt with the issue of sending the copy of the FIR to the Ilaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Raw v. State of U.P. ( (1998) 1 SCC 149 : 1998 SCC (Cri.) 278 : AIR 1998 SC 49) and Arun Kumar Sharma v. State of Bihar ( (2010) 1 SCC 108 : (2010) 1 SCC (Cri.) 472), came to the conclusion that Cr.P.C. provides for internal and external checks: one of them being receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or antedated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Cr.P.C., if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case. 19. In the instant case, copy of the FIR was not sent to the Magistrate at all as required under Section 157(1), Cr.P.C. In such a case, in the absence of any explanation furnished by the prosecution to that effect, would definitely cast a shadow on the case of prosecution. This Court dealt with the issue in State of M.P. v. Kalyan Singh ( (2011) 9 SCC 569 ), wherein this Court was informed by the Standing Counsel that in Madhya Pradesh, police is not required to send the copy of the FIR to the Ilaqa Magistrate, but it is required to be sent to the District Magistrate. It was so required by the provisions contained in Regulation 710 of the Madhya Pradesh Police Regulations. This Court held that Regulation 710 cannot override the statutory requirements under Section 157(1) Cr.P.C. which provide for sending the copy of the FIR to the Ilaqa Magistrate. 21. In State v. N. Rajamanickam ( (2008) 13 SCC 303 : (2009) 2 SCC (Cri.) 239) this Court dealt with a similar case wherein a lot of lapses had been noted on the part of the prosecution. In the said case, originally 16 persons were named in the charge-sheet out of which one had died, one had absconded and the rest 14 persons faced trial. The trial court convicted only six out of them. In the said case, originally 16 persons were named in the charge-sheet out of which one had died, one had absconded and the rest 14 persons faced trial. The trial court convicted only six out of them. Those six persons preferred the criminal appeal and the High Court found that there were certain vital factors which rendered the prosecution version improbable. One of the factors noted was delay in dispatch and receipt of the FIR and connected documents in the Court of the Magistrate. The factional village rivalry was shown to be the cause of concern therein also. The High Court found that evidence of some of the prosecution witnesses lacked credibility and credence and, thus, all the persons were acquitted. This Court dismissed the appeal of the State observing as under: (N. Rajamaenickam case ( (2008) 13 SCC 303 : (2009) 2 SCC (Cri.) 239), SCC p. 304, para. 9) 9. Delay in receipt of FIR and the connected documents in all cases cannot be a factor corroding the credibility of the prosecution version. But that is not the only factor which weighed with the High Court. Added to that, the High Court has noted the artificiality of the evidence of PW 1 and the non-explanation of the injuries on the accused persons which were very serious in nature. The combined effect of these factors certainly deserved consideration and, according to us, the High Court has rightly emphasised on them to hold that the prosecution has not been able to establish the accusations. Singularly, the factors may not have an adverse effect on the prosecution version. But when a combined effect of the factors noted by the High Court are taken into consideration, the inevitable conclusion is that these are cases where no interference is called for. 20. In Rattiram and Ors. Vs. State of M.P. 2013 Cri.L.J. 2353 (Supreme Court), Hon'ble the Supreme Court held thus:-- 21. We will be failing in our duty if we do not deal with the contention of Mr. Khan that when there has been total non-compliance of Section 157 of the Code of Criminal Procedure, the trial is vitiated. On a perusal of the judgment of the learned trial Judge we notice that though such a stance had been feebly raised before the learned trial judge, no question was put to the Investigating Officer in this regard in the cross-examination. On a perusal of the judgment of the learned trial Judge we notice that though such a stance had been feebly raised before the learned trial judge, no question was put to the Investigating Officer in this regard in the cross-examination. The learned trial Judge has adverted to the same and opined, regard being had to the creditworthiness of the testimony on record that it could not be said that the FIR, Ext. P-7, was antedated or embellished. It is worth noting that such a contention was not raised before the High Court. Considering the facts and circumstances of the case, we are disposed to think that the finding recorded by the learned trial Judge cannot be found fault with. We may hasten to add that when there is delayed dispatch of the FIR, it is necessary on the part of the prosecution to give an explanation for the delay. We may further state that the purpose behind sending a copy of the FIR to the concerned Magistrate is to avoid any kind of suspicion being attached to the FIR. Such a suspicion may compel the court to record a finding that there was possibility of the FIR being ante-timed or antedated. The court may draw adverse inferences against the prosecution. However, if the court is convicted as regards to the truthfulness of the prosecution version and trustworthiness of the witnesses, the same may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case. In the case at hand, on a detailed scrutiny of the evidence upon bestowing our anxious consideration, we find that the evidence cannot be thrown overboard as the version of the witnesses deserves credence as analysed before. Thus, this colossal complaint made by Mr. Khan Pales into insignificance and the submission is repelled. 21. In the instant case, copy of F.I.R. was not sent to the concerned Magistrate. No explanation has been brought on record for the above lapse committed by the prosecution. This was a requirement under Section 157(1) Cr.P.C. In the facts and circumstances of this case, when there was different in prosecution version relating to manner of assault and weapon used, at the stage of FIR and court version, the above omission on the part of the prosecution would assume importance. This was a requirement under Section 157(1) Cr.P.C. In the facts and circumstances of this case, when there was different in prosecution version relating to manner of assault and weapon used, at the stage of FIR and court version, the above omission on the part of the prosecution would assume importance. Moreover, the FIR was lodged by Tijram but the prosecution did not examine Tijram. 22. Sub Inspector Anil Tiwari (PW-19) deposed in his cross examination that on 20/10/1989 he had arrested Neelkanth (PW-17) and had prepared charge sheet No. 145/89 against Neelkanth and 8 other persons. He was transferred from Police Station Shivrinarayan. He further deposed in para 26 of his cross examination that Padmanlal, Lakhanlal and Vishnu Prasad had stated the Neelkanth (PW-17) had assaulted the deceased with lathi, therefore, on the basis of statements of Padmanlal, Lakhanlal and Vishnu Prasad, he had arrested Neelkanth (PW-17). 23. In appreciation of the entire evidence on record, we find that there are material contradictions in the evidence of Dhan Kunwar (PW-7), Tulsi Prasad (PW-8) and Babulal (PW-10). Dhan Kunwar (PW-7) changed her version and Tulsi Prasad (PW-8) specifically deposed that when he reached on the place of occurrence the assailants had fled from the place of occurrence. Looking to the evidence of Tulsi Prasad (PW-8) it appears that when he reached on the place of occurrence the assailants were not present on the spot and Babulal (PW-10) has given an altogether different story alleging participation of as many as 15 persons in the assault on the deceased Gangaram. 24. Therefore, the testimonies of Dhan Kunwar (PW-7), Tulsi Prasad (PW-8) and Babulal (PW-10) are not reliable. This is a case in which firstly an other set of accused persons including Neelkanth (PW-17), were arrested and charge sheet was prepared and thereafter the present charge sheet was filed against the appellants. Copy of the FIR was not at all sent to Illaqa Magistrate. There was party bandi in the village. In all these circumstances, and in view of the above evidence of the three eye-witnesses, we cannot uphold the finding recorded by the learned Additional Sessions Judge. We are of the view that the appellants are entitled to get benefit of doubt. For the foregoing reasons, the appeal is allowed, the conviction and sentences awarded to the appellants under Section 148 and 302 read with 149 IPC are set aside. We are of the view that the appellants are entitled to get benefit of doubt. For the foregoing reasons, the appeal is allowed, the conviction and sentences awarded to the appellants under Section 148 and 302 read with 149 IPC are set aside. They are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds shall remain in force for a period of six months from today.