JUDGMENT Hon’ble Anant Kumar, J.—This criminal appeal under Section 374 Cr.P.C. was initially filed by accused appellants Bhup Singh, Kalyan Singh and Gajadhar alias Gajraj against the judgment and order dated 3.12.1982 passed by the Sessions Judge, Aligarh in respect of Sessions Trial No. 90 of 1982 whereby the appellants were convicted under Section 302/34 I.P.C. and were sentenced to undergo life imprisonment. They were further convicted and sentenced under Section 324/34 I.P.C. for one year Rigorous Imprisonment and under Section 323/34 for three months Rigorous Imprisonment. All the sentences were directed to run concurrently. 2. During pendency of this appeal, the appellants Bhup Singh and Gajadhar alias Gajraj died and thus appeal in respect of them was abated by order of this Court dated 1.11.2007. 3. The prosecution story, in brief, is that the complainant Budhsen alongwith his brother Kallu Singh were partners in the crop of Smt. Shanti Devi wife of Late Murli where they had harvested the crop of potatoes. Out of the said harvest, Kalyan Singh son of Smt. Shanti Devi had returned from Agra after selling two trucks load of potatoes on 29.3.1981 and the entire money was in his custody. Since some crop of potatoes was still lying in the field and therefore to ensure its safety, Kallu Singh, Panna Lal, Smt. Shanti Devi and complainant were sleeping in the said field around the heap of potatoes. At about 11.00 p.m. Kalyan Singh armed with a country made pistol, Bhup Singh armed with Pharsa and Gajadhar armed with spear came to the spot and started assaulting Kallu Singh with their weapons. Upon commotion, the complainant and others woke up and they saw Kalyan Singh shot at Kallu Singh. Kallu Singh died on spot. They also assaulted Smt. Shanti Devi while questioning her wisdom of admitting Kallu Singh as a partner in the crop. All the accused persons were recognized by the complainant and witnesses Netra Pal and Panna Lal by the help of torch which was with the complainant. 4. Kallu Singh died on spot. They also assaulted Smt. Shanti Devi while questioning her wisdom of admitting Kallu Singh as a partner in the crop. All the accused persons were recognized by the complainant and witnesses Netra Pal and Panna Lal by the help of torch which was with the complainant. 4. The aforesaid written complaint was got scribed by one Gyanendra Pal son of Lala Sukh Dayal, resident of Umraoganj, Atrauli, District Aligarh who submitted it on behalf of the complainant at police station Atrauli, District Aligarh which was at a distance of about 2.00 K.M. from the place of occurrence at about 2.10 a.m. on 30.3.1981 which was duly entered as chick report No. 2 at 2.10. a.m. on the said date. The injured Smt. Shanti Devi was sent for medical examination. The Investigating Officer visited the place of occurrence on 30.3.1981 and collected various samples and also took into custody the torch used by the complainant and witnesses and gave it back to them in their custody after preparing a due memo. 5. The dead body of the deceased was sent for post-mortem examination on 30.3.1981 and spear was allegedly recovered at the pointing of Gajadhar when recovery memo was also prepared. The said spear and cloth of the deceased was sent for chemical examination and a charge-sheet was submitted against all the accused persons. 6. The post-mortem on the dead body of the deceased Kallu Singh was conducted on 31.3.1981 and following ante-mortem injuries were found on the body of the deceased : 1. Incised wound 7cm x 0.5cm x bone deep, over left pinna left ear and face and the back of the ear underneath bone is cut. 2. Abrasion 2cm x 1cm just above left eye brow. 3. Abraded contusion multiple in number in an area of 14 cm x 8 cm around the right elbow region. 4. Multiple gunshot wound of entry six in number over right side chest, lateral aspect 5 cm below the axillary fold, each measuring 1 cm x 1 cm x variable depth. No blackening and tattooing present. Margins inverted. 5. Linear abrasion 4 cm long placed transversely over left upper arm front aspect. 6. Incised wound 3.5 cm x 0.5 cm x bone deep over left forearm front. 7. Incised wound 2.5 cm x 0.5 cm x bone deep over thenar. 8. No blackening and tattooing present. Margins inverted. 5. Linear abrasion 4 cm long placed transversely over left upper arm front aspect. 6. Incised wound 3.5 cm x 0.5 cm x bone deep over left forearm front. 7. Incised wound 2.5 cm x 0.5 cm x bone deep over thenar. 8. Incised wound 1cm x 0.5 cm x muscle deep over left thumb. 9. Incised wound 1cm x 0.5 cm x muscle deep on the left finger of hand. 10. Abrasion 6 cm x 0.5 cm left upper arm back. Internal examination disclosed that the mastoid was cut. Fourth and fifth rib right side closed to its angle fractured. Right pleural cavity contained 1/2 pint blood. Stomach contained 2 oz. pasty food material. One big metallic shot found impacted in the dorsal vertebra was taken out. Three metallic shots found impacted in the right lung were also taken out. 7. Smt. Shanti Devi was medically examined on 30.3.1981 and following injuries were found on her body- 1. Lacerated wound of about 2 cm x 0.3 cm x skin deep over left side of scalp, 3 cm above left ear. 2. Lacerated wound 2 cm x 0.2 cm over left side of scalp, 1 cm towards right side over scalp. 3. Incised wound 5.5 cm x 1.5 cm x bone deep over outer aspect of right upper arm, 1cm above right elbow joint. X-ray was advised. 4. Incised wound 2 cm x 0.5 cm x skin deep over outer and back side of left lower arm, 2.4 cm away from elbow joint. 5. Contusion 5 cm x 4 cm on the outer aspect of left arm, 1cm above left elbow joint. 6. Contusion 6 cm x 4 cm over back of left lower arm, 7cm below left elbow joint. 7. Abrasion 2.5 cm 0.5 cm over back of left palm, 4 cm below left wrist joint. 8. Abrasion 2.5 cm x 0.5 cm over outer aspect of left thigh, 4.5 cm away from left knee joint. 9. Abrasion 4 cm x 1 cm over outer aspect of left leg, 13 cm below left knee joint, surrounded by a contusion of about 10 cm x 9 cm. 10. Abrasion of about 1.2 cm x 1 cm over front of right leg, 13 cm below right knee joint. 11. Contusion 11 cm x 7 cm over back of left shoulder. 12. 10. Abrasion of about 1.2 cm x 1 cm over front of right leg, 13 cm below right knee joint. 11. Contusion 11 cm x 7 cm over back of left shoulder. 12. Contusion 17 cm x 1 cm over the back of right shoulder, bone. 13. Contusion 4 cm x 3 cm over the right side of wrist 2 cm away from vertebra column 22 cm above iliac crest. All the injuries were simple, except No. 3 which was kept under observation. Duration was noted as fresh. Injuries No. 3 and 4 appeared to have been caused by some sharp cutting weapon and the rest by some blunt object. 8. During course of trial, on behalf of prosecution, 10 witnesses have been examined where PW-1 Dr. S.C. Agrawal, who conducted the post-mortem on the dead body of the deceased Kallu Singh, PW-2 Budhsen, complainant PW-3 Panna Lal, PW-4 Netra Pal are the witnesses of fact whereas PW-5 H.C. Anar Singh, PW-6 S.I. Chandra Bhan Singh, PW-7 Head Constable Uma Charan Dubey, PW-8 Rajendra Singh, PW-9 Mangal Sen and PW-10 Satya Prakash are the formal witnesses. 9. After hearing the learned counsel for the defence and learned State counsel, the learned trial Court came to the conclusion that the prosecution has succeeded to prove the guilt of the accused persons, as such, the accused persons were convicted and sentenced as stated above. Hence this appeal. 10. We have heard Sri Ratan Singh, learned counsel for the appellant Kalyan Singh and Sri Rajiv Gupta, learned A.G.A. for the State and perused the record. 11. It is urged on behalf of the appellants that there are material contradiction in the statement of the witnesses and the main injured witness Smt. Shanti Devi has not been examined. It is also urged that there is considerable delay in lodging the F.I.R. which was got scribed after due consultation of several persons and further that there was absolutely no plausible explanation as to why the police papers reached the doctor on 31.3.1981 though dead body of the deceased allegedly reached there on 30.3.1981 itself. It is further urged that in fact the entire story is concocted and occurrence had taken place in the dead of night without any source of light and the only source of light, torches, though taken into custody were never produced before the Court during trial. It is further urged that in fact the entire story is concocted and occurrence had taken place in the dead of night without any source of light and the only source of light, torches, though taken into custody were never produced before the Court during trial. It is also urged that the prosecution has miserably failed to prove the guilt beyond any shadow of doubt. 12. To the contrary, the learned A.G.A. has urged that despite severe cross-examination of the eye-witnesses, they have stood the test and merely because Smt. Shanti Devi who was the mother of one accused Kalyan Singh, had not been produced, the prosecution story could not be discorded. Lastly, it is urged that the delay was duly explained and the guilt has been proved beyond any shadow of doubt. 13. After hearing the learned counsel for the parties, we are of the view that following points emerge in this case. (1) As to whether there is considerable delay in lodging the F.I.R. and there are chances that the F.I.R. would have been lodged with due consultation. (2) As to whether the prosecution has succeeded to prove the guilt of the accused persons beyond all reasonable doubt and the witnesses as produced by the prosecution are fully reliable. Point No. 1. 14. In this case occurrence had taken place in the night of 29.3.1981 at about 11.00 p.m. but the F.I.R. has been lodged on 30.3.1981 at 2.10 a.m. The distance of the police station from the place of occurrence is two kilometres. Apparently there is delay of more than three hours in lodging the F.I.R. To explain the delay, PW-2 Budhsen has stated that after the occurrence straight away he had not gone to the police station, but he had left Panna Lal on the spot and had gone to his residence, there he stayed for about 10-15 minutes and again he returned to the scene of occurrence and thereafter he went to the scribe Gyan Babu for preparation of the report as he himself was illiterate and after bringing Gyan Babu to the place of occurrence and on his dictation, Gyan Babu had drafted the complaint. He has further stated that the said report was produced before the police station by said Gyan Babu because he was busy in managing other affairs, thus, even the said report was not given to the police station in his presence. This also goes to show that the complainant had not gone to the police station to lodge the report and it was Gyan Babu who had gone to the police station to lodge the report. The scriber of the complaint Gyan Babu has not been produced in evidence. A perusal of the complaint Ext. Ka-2 shows that the complaint was written by one Gyanendra Pal son of Lala Sukh Dayal, resident of Umraoganj, Atrauli. This considerable delay in lodging the F.I.R. coupled with the explanation given by PW-1 goes to show that the F.I.R. was not lodged with free will of the complainant, rather it was the outcome of the consultation of so many persons. Due to this, the entire prosecution story comes under a cloud of doubt. This apart, the witnesses Panna Lal and Netra Pal shown in the F.I.R. are admitted to be of the caste of the complainant Budhsen. From the record, it is evident that the F.I.R. in this case was lodged at 2.10 a.m. but the inquest of the deceased started only at 10.00 a.m. Though the Investigating Officer PW-6 has stated that immediately after lodging the F.I.R., he visited the place of occurrence but due to darkness on the spot, the inquest could not be completed and it was started at 10.00 a.m. Even if this is taken to be true that due to darkness the inquest could not be completed in the night, at least, it should have been completed on the next day in the early morning because the occurrence had taken place in the month of March and it is common experience that in the month of March the sun rises at about 6.00 a.m. but why the inquest started at 10.00 a.m. is not clear from the record. However, PW-7 Uma Charan Dubey, who had taken the dead body from the place of occurrence to the mortuary, has stated that the dead body was taken from the scene of occurrence at about 6.00 a.m. and had reached Aligarh at about 2.00 p.m., so this delay caused in preparation of inquest coupled with delay in lodging the F.I.R. creates a doubt regarding truthfulness of the prosecution story. This apart, there is one more aspect of the matter that PW-2 Budhsen has stated that the complainant and his brother Kallu Singh were living separately. PW-2 Budhsen was running a flour mill whereas his brother Kallu Singh was engaged in agriculture and was a partner in the field of Smt. Shanti Devi. So there is no occasion for this witness to go and sleep with his brother Kallu Singh for looking after the crop of potatoes because he had nothing to do with the partnership of Kallu Singh in the said crop. So there is force in the contention of the learned counsel for the appellant that there is a possibility that occurrence had taken place in the night wherein the deceased Kallu Singh was killed by some unknown miscreants and Smt. Shanti Devi sustained injuries and the information of which was received by PW-2 Budhsen in the morning and then the matter was reported to the police then at about 10.00 a.m. the police came on the spot and inquest was prepared. If the entire prosecution story would have been same as narrated in the F.I.R., there was no occasion that Smt. Shanti Devi, who was injured witness, would not have been produced in evidence. 15. This apart, there appears force in the contention of the learned counsel for the appellant that the F.I.R. was ante-timed. The occurrence had taken place in the night of 29.3.1981 at about 11.00 p.m. but PW-1 Dr. 15. This apart, there appears force in the contention of the learned counsel for the appellant that the F.I.R. was ante-timed. The occurrence had taken place in the night of 29.3.1981 at about 11.00 p.m. but PW-1 Dr. S.C. Agrawal has stated in his statement that dead body of the deceased was received by him on 30.3.1981 at 5.00 p.m. whereas the papers for the same were received on 31.3.1981 at 11.00 a.m. It is further clear from the connected papers, which are on record that challan lash, photo lash and other connected papers, which were received by the doctor, contain an endorsement that dead body was received in a sealed cover on 30.3.1981 at 5.00 p.m. whereas the papers were received on 31.3.1981 at 11.00 a.m. From the side of prosecution, no cogent explanation has been given as to why the dead body was received in the mortuary so late and why the papers were detained by the Investigating Officer at police station and the the said papers reached the mortuary on 31.3.1981. So this creates a doubt that there may be a possibility that the F.I.R. was ante-timed and the connected papers were also sent very late. So this gives force to the argument advanced by learned counsel for the appellant. Point No. 2 16. Now it is to be seen as to whether the witnesses of fact produced on behalf of the prosecution are fully reliable and trustworthy. As discussed above, PW-2 Budhsen, who is the complainant, has stated that he and his brother Kallu Singh were living separately and he was running a flour mill. He has admitted that on the date of occurrence also he had operated his flour mill. In the night he was sleeping at the scene of occurrence by side of the heap of potatoes. When Kallu Singh and complainant were living separately and were doing separate work, what was the occasion for him to go to the said field to look after the potatoes, which were in fact in the partnership of Kallu Singh and Smt. Shanti Devi. It creates a doubt about the presence of P.W. 2 on spot. So far as the presence of Panna Lal on the spot is concerned, he is a labour of the deceased Kallu Singh and Smt. Shanti Devi, so he is a interested witness. It creates a doubt about the presence of P.W. 2 on spot. So far as the presence of Panna Lal on the spot is concerned, he is a labour of the deceased Kallu Singh and Smt. Shanti Devi, so he is a interested witness. He has admitted in his statement that he was a labour in the field of Kallu Singh and Smt. Shanti Devi. He has stated in his statement that Smt. Shanti Devi and Budhsen were sleeping on the ground whereas Kallu Singh was sleeping on a cot. PW-2 Budhsen has stated that both the persons i.e. Kallu Singh and Smt. Shanti Devi were sleeping on the ground. He has specifically denied that Kallu Singh was sleeping on a cot. This apart, this witness Panna Lal has stated that he does not know the scribe of the complaint Gyan Babu. He has categorically denied that any report was scribed near the heap of potatoes whereas PW-2 has stated in his statement that he had contacted Gyan Babu for the purpose to have consultation and he had brought Gyan Babu at the scene of occurrence where the complaint was scribed. So this goes to show that when the report was scribed, witness Panna Lal was not present on the spot. So this also goes to show that presence of Panna Lal is also doubtful on the place of occurrence. 17. PW-3 Netra Pal is a chance witness. He was not present on the spot at the time of occurrence. He has stated that at the time of occurrence, he was a partner in the agriculture work of Rajjak and at that time, he was in the field of Rajjak and on hearing commotion, he had reached on spot. He has stated that the field in which he was present at the time of occurrence, is about 15-20 paces away from the said field of potatoes but in this regard, the map prepared by the Investigating Officer shows that the field of Rajjak is in the eastern side of place of occurrence, which is far from the place of occurrence and between the place of occurrence and field of Rajjak, there is a road. 18. 18. PW-6 Chandra Bhan has stated that from the scene of occurrence, the field of Rajjak where PW-3 was present at the time of occurrence, is about 125 paces away, so it is highly doubtful that from such a distance the witness Netra Pal could hear the commotions and could come to the scene of occurrence. 19. As discussed above, non production of torch in the Court also creates a doubt regarding truthfulness of the statements of the witnesses that they had recognized the accused persons in the torch light. In this regard, the Hon’ble Supreme Court in the case of Manzoor v. State of Uttar Pradesh, AIR 1983 SC 295 , held that the accused persons were identified by the witnesses in torch light but the torch was not produced in Court, the Hon’ble Apex Court held that torch has not been produced in evidence and Investigating Officer PW-12 says in his evidence that he saw those torches and returned them to Home guards. It is not known why the Investigating Officer PW-12 thought it fit to return the torch with the help of which the Home Guards are said to have seen the persons running away from the scene of occurrence though it was a relevant piece of evidence. 20. Looking to the entire facts and circumstances of the case, we are of the opinion that the presence of the witnesses of fact on the spot at the time of occurrence appears to be doubtful and their statements do not inspire confidence. So sustaining conviction and sentence of the appellant Kalyan Singh on the basis of statements of the witnesses appears to be unsafe. As such, this appeal is liable to be allowed and the conviction and sentence as passed against the accused Kalyan Singh is liable to be set aside. 21. Accordingly, the appeal is allowed. The judgement and order dated 3.12.1982 passed by the Sessions Judge, Aligarh convicting and sentencing the appellant Kalyan Singh is set aside. The appellant is acquitted from all the charges as framed against him. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. ——————