JUDGMENT : Kanwaljit Singh Ahluwalia, J. Nekram alongwith his two sons Sitaram and Vishnu Singh was tried by the court of Additional Sessions Judge (Fast Track) No.2, Dholpur. The said court vide impugned judgment dated 20.8.2007 convicted the appellants for the offences under Sections 323/34, 341 and 302/34 IPC for committing the murder of Om Prakash. All the three appellants were also charged for the offence under Section 323 read with Section 34 IPC for causing injuries to Ishwari Prasad (P.W.7), Vinod s/o Murari Lal (P.W.9). 2. Another son of Nekram, namely Janak Singh was also one of the accused. Janak Singh was not arrested and was declared as proclaimed offender. Mr. Alladdeen Khan, the learned Public Prosecutor has informed us that Janak Singh has expired on 10.1.2006. 3. Nekram and his two sons, being aggrieved against their conviction and sentence have preferred the present appeal. 4. Before we notice the brief facts of the case, we may highlight peculiar feature of this case that out of the four witnesses namely Ishwari Prasad (P.W.7), Vinod s/o Murari Lal (P.W.9), Vinod s/o Ramveer Singh (P.W.6) and Sonu (P.W.1), the injured witnesses namely Ishwari Prasad (P.W.7) and Vinod s/o Murari Lal (P.W.9) and Vinod s/o Ramveer Singh (P.W.6) have turned hostile to the prosecution and have resiled from their previous statement given under Section 161 Cr.P.C. made before the Police. Thus, the case of the prosecution rests upon the testimony of solitary eyewitness Sonu (P.W.1), who is stated to be a distant grandson of the deceased Om Prakash. 5. The written report (Exhibit-P/8) was presented by Vinod s/o Murari Lal (P.W.9) on the basis of which formal FIR (Exhibit-P/9) bearing No. 186/04 was registered at the police station Basedi, District Dholpur. 6. The case of the prosecution, in nutshell, narrated in the written report (Exhibit-P/8) presented by Vinod s/o Murari Lal (P.W.9) before Sita Ram (P.W.19) SHO, Police Station Basedi, is that on 10.8.2004, at about 5:30 PM, Vinod s/o Ramveer Singh (P.W.6) on motorcycle had come to the house of Vinod s/o Murari Lal (P.W.9). He had parked the motorcycle in front of the house of complainant Vinod s/o Murari Lal (P.W.9). Vishnu, the accused without permission took away the said motorcycle. He had parked the motorcycle in front of the house of complainant Vinod s/o Murari Lal (P.W.9). Vishnu, the accused without permission took away the said motorcycle. The complainant had restrained the family members of Vishnu and feeling aggrieved, Nekram s/o Karan Singh accompanied by his three sons, namely Sitaram, Janak Singh, Vishnu and his wife Anchi, all came armed with gun, lathis and brick-bats. The case set out in the written report (Exhibit-P/8) on the basis of which formal FIR (Exhibit-P/9) was registered is that the accused came to the house of Vinod s/o Murari Lal (P.W.9) and encircled Om Prakash, Vinod and Ishwari Prasad and caused them injuries with lathis and brick-bats. It is further stated in the written report that Sitaram armed with 315 bore gun stood at the place of occurrence and after hearing the noise, Vinod s/o Ramveer Singh (P.W.6) and Sonu (P.W.1) were attracted at the spot. 7. Om Prakash was first medico-legally examined by Dr. Rajendra Prasad Tyagi (P.W.11) at General Hospital, Dholpur. As per Medico-legal Report (Exhibit-P/12) five injuries were found on the person of Om Prakash. A perusal of the injuries reveals that all the injuries were on the head. They have been caused with the blunt weapon. Injury No.5 is swelling of the left eye, which may be result of other injuries caused on the head. 8. Om Prakash was taken to the hospital at Agra and he died on 11.8.2004 at 10:55 PM. On 12.8.2004, at 2:15 PM, Dr. Sunil Bhartiya (P.W.20) being posted as Medical Officer at District Hospital, Agra, conducted autopsy on the dead body of Om Prakash. In the Post Mortem Report (Exhibit-P/29), he had found three injuries on the head of Om Prakash. Injury Nos. 1 and 2 were stitched wounds on the left side of the head near left ear lobe. Injury No.3 was a contusion on the left eye. As per this witness (P.W.20), temporal bone was fractured, brain and its membranes were congested. There was haematoma present in the brain. The cause of death was Coma due to head injury. 9. Dr. R.D. Garg (P.W.10) on 10.8.2004, at 7:20 PM, at Community Health Center, Basedi examined Ishwari Prasad (P.W.7) and noted complain of pain on the left shoulder in the Injury Report (Exhibit-P/4). 10. There was haematoma present in the brain. The cause of death was Coma due to head injury. 9. Dr. R.D. Garg (P.W.10) on 10.8.2004, at 7:20 PM, at Community Health Center, Basedi examined Ishwari Prasad (P.W.7) and noted complain of pain on the left shoulder in the Injury Report (Exhibit-P/4). 10. On the said date and time, this witness also examined Vinod s/o Murari Lal (P.W.9) and had noted diffused swelling of size 1cm x 1cm on the left limb and also complain of pain on right hand. Doctor opined that the injury suffered by Ishwari Prasad (P.W.7) and Vinod s/o Murari Lal (P.W.9) were caused by blunt weapon. 11. The prosecution in all examined twenty witnesses. Thereafter, the statement of accused were recorded under Section 313 Cr.P.C. The accused also examined three witnesses in defence, namely Sita Ram (Yogendra) (D.W.1), Jagdish (D.W.2), Babu (D.W.3). 12. Besides the witnesses examined by the prosecution, the prosecution also proved on record thirty documents being Exhibit-P/1 to Exhibit-P/30. The defence relied upon four documents i.e. site plan (Exhibit-D/1), Bonafide Certificate of Nek Ram issued by Office of Tehsildar, Basedi, Dholpur (Exhibit- D/2), Original Transfer Certificate of Yogendra Singh issued by Headmaster, RUP, Vidhyalaya Atarsuma (Basedi) (Exhibit-D/3) and Original Ration Card of Yogendra Singh (Exhibit-D/4). 13. Since the present case rests upon eyewitnesses account, we shall briefly notice the testimony of eyewitnesses. 14. Ishwari Prasad (P.W.7), who had suffered injury in the occurrence stated that on 10.8.2004 he was present in the house. After hearing noise, he reached at the spot and found Om Prakash lying in the street in unconscious condition. This witness further stated that mob had gathered. They were pelting stones. This witness stated that he suffered injuries due to pelting of stones. This witness was declared hostile to the prosecution and was confronted with his previous statement. 15. Vinod s/o Murari Lal (P.W.9) stated in the court that Vishnu had taken motorcycle. He returned that motorcycle. The motorcycle belonged to his friend Vinod s/o Ramveer Singh (P.W.6). This witness stated that they had followed Vishnu and had retrieved their motorcycle. They had gone to the house of Vishnu to make the protest. They were accompanied by Om Prakash. There some dispute took place and he remained present at his house. He returned that motorcycle. The motorcycle belonged to his friend Vinod s/o Ramveer Singh (P.W.6). This witness stated that they had followed Vishnu and had retrieved their motorcycle. They had gone to the house of Vishnu to make the protest. They were accompanied by Om Prakash. There some dispute took place and he remained present at his house. This witness stated that as to who had participated in the occurrence, he is not aware but in the occurrence Om Prakash died. This witness had named Sitaram, Vishnu, Nekram and Anchi as accused but as to who caused injury to Om Prakash, he is not aware, as he reached at the spot after the occurrence had taken place. This witness further stated that the members of the mob had pelted stones due to which he had suffered injuries. This witness was also declared hostile to the prosecution and learned A.P.P. was permitted to cross-examine him and confront with report (Exhibit-P/8). 16. In cross-examination, this witness admitted that he signed the FIR (Exhibit-P/9) on the same day. Other papers were signed by him after he had returned from Agra after three-four days. This witness further admitted that Sonu (P.W.1) went to Jamner at about 11:00. This witness further stated that they were accompanying Om Prakash. Sonu (P.W.1) met them on the way. 17. Vinod s/o Ramveer Singh (P.W.6) stated in the court that he had not witnessed the occurrence and he had not gone with his motorcycle anywhere. This witness was declared hostile by the prosecution. 18. Since, the three material witnesses have turned hostile, the case of the prosecution rests on the testimony of Sonu (P.W.1). 19. Sonu (P.W.1) stated that on 10.8.2004, at about 5:00 PM, he was present in the house. He heard noise and reached at the house of Nekram and witnessed that Om Prakash was making complaint that Vishnu had taken the motorcycle of Vinod without his permission. At that time, Sitaram, Janak and Vishnu were also standing there. All four were armed with lathis. When they were complaining, Vishnu said that he will see the deceased. Exact words are ^^tc og eksVj lkbZfdy dh f'kdk;r dj jgs Fks rks fo".kq cksyk fd eSa rq>s vHkh ns[krk gwaA** Saying so," Vishnu gave an injury with lathi on the head of Om Prakash. Then Nekram, Janak and Sitaram had also caused injuries. When they were complaining, Vishnu said that he will see the deceased. Exact words are ^^tc og eksVj lkbZfdy dh f'kdk;r dj jgs Fks rks fo".kq cksyk fd eSa rq>s vHkh ns[krk gwaA** Saying so," Vishnu gave an injury with lathi on the head of Om Prakash. Then Nekram, Janak and Sitaram had also caused injuries. Ishwari Prasad (P.W.7) came forward to save Om Prakash. Then Nekram, Janak and Sitaram also caused injuries to Om Prakash, Ishwari Prasad and Vinod. With folded hands this witness along with Vinod and other residents of the village, saved the injured persons from the hands of the accused. Om Prakash fell at the spot due to receipt of injuries on the head. The condition of Om Prakash became precarious. This witness further stated that the occurrence had ensued as Vinod, friend of another Vinod s/o Murari Lal (P.W.9) had come from the petrol pump on his motorcycle. 20. In cross-examination, this witness admitted that before the occurrence in the morning at 9:00/10:00 AM, to Jagner he had returned after three hours and had gone to his house. This witness further admitted that Om Prakash in relationship was uncle (Chacha) of his father. This witness further stated that he is not aware whether after the occurrence accused remained at the spot or decamped from the spot. This witness further admitted that he remained at spot after the occurrence for about 5/7 minutes. Thereafter, he came back to the house and remained at his house and only left his house at about 6:00/6:30 PM and he is not aware what had happened to Om Prakash or as to who took Om Prakash to the hospital. 21. Ishwari Prasad (P.W.7) and Vinod (P.W.9) being sons of Murari Lal both were medico-legally examined. They both have turned hostile to the prosecution. The grievance, if any, was to Vinod s/o Ramveer Singh (P.W.6), who had come to visit Vinod s/o Murari Lal (P.W.9). It is the case of the prosecution that Vishnu unauthorizedly without permission had taken away motorcycle of Vinod s/o Ramveer Singh (P.W.6). Naturally, since Vinod s/o Ramveer Singh (P.W.6) had come to the house of Vinod s/o Murari Lal (P.W.9), they being aggrieved had gone to lodge a protest at the house of Vishnu. It is the case of the prosecution that Vishnu unauthorizedly without permission had taken away motorcycle of Vinod s/o Ramveer Singh (P.W.6). Naturally, since Vinod s/o Ramveer Singh (P.W.6) had come to the house of Vinod s/o Murari Lal (P.W.9), they being aggrieved had gone to lodge a protest at the house of Vishnu. Since all the three witnesses namely, Ishwari Prasad (P.W.7), Vinod s/o Murari Lal (P.W.9) and Vinod s/o Ramveer Singh (P.W.6) have turned hostile, the case rests on the testimony of Sonu (P.W.1). 22. Mr. N.A. Naqvi, the learned Senior Counsel assisted by Mr. Nawab Ali Rathore and Mr. Shrawan Gupta, appearing for the appellants has relied upon Vadivelu Thevar v. The State of Madras [ AIR 1957 SC 614 ], to say that a solitary eyewitness can either be termed as wholly reliable or wholly unreliable or partly reliable or partly unreliable. The learned counsel for the appellants has canvassed before us that Sonu (P.W.1) is a totally unreliable witness for the following reasons: (a) That the conduct of the witness Sonu (P.W.1) is highly improbable. It is contended that Sonu (P.W.1) met Om Prakash when he was accompanying Ishwari Prasad (P.W.7), Vinod s/o Murari Lal (P.W.9) and Vinod s/o Ramveer Singh (P.W.6) who were going to lodge the protest. It is stated that Sonu (P.W.1) admittedly was attracted to the spot after he had heard noise coming from the house of Nekram. He came and stood at the place of occurrence for five minutes, saw the occurrence and returned to the house and did nothing, he even made no effort to transport the injured to the hospital. The learned counsel for the appellants has contended that except Sonu (P.W.1) being a witness to the occurrence stood at spot for five minutes, he has played no other role, which a grandson is expected to play watching his close relations being caused injuries. It is contended that Sonu (P.W.1) rendered no assistance to the injured. He has not carried information to the police station. He was, hence, a mute spectator. (b) Sonu (P.W.1) being a relation is an interested witness to depose against the appellants. (c) The learned counsel for the appellants has stated that no implicit reliance can be placed upon the written report (Exhibit D. P/8) as witness in the court had made significant departure regarding the place of occurrence. He was, hence, a mute spectator. (b) Sonu (P.W.1) being a relation is an interested witness to depose against the appellants. (c) The learned counsel for the appellants has stated that no implicit reliance can be placed upon the written report (Exhibit D. P/8) as witness in the court had made significant departure regarding the place of occurrence. The learned counsel for the appellants submitted that in written report (Exhibit-P/8) it is stated that all the accused came to the house of complainant and had caused injuries, whereas in the court a story has been introduced that Om Prakash had accompanied Ishwari Prasad (P.W.7), Vinod s/o Murari Lal (P.W.9) and Vinod s/o Ramveer Singh (P.W.6) and went alongwith them to make protest to the house of Nekram. (d) That in the FIR (Exhibit-P/9) all the family members of Nekram have been named as accused. It is contended that Nekram and his three sons namely Sitaram, Vishnu and Janak and Smt. Anchi wife of Nekram all were arrayed as accused. It is stated that it is a case of over implication. (e) It is further canvassed before us that narration of the sequence of occurrence given by Sonu (P.W.1) is not reliable. In the FIR (Exhibit-P/9), it is stated that Sitaram stood armed with 315 bore gun and had not caused any injury. In the FIR all accused besides lathi were armed with stones and all had caused injuries. In the FIR (Exhibit-P/9) except injury caused by Vishnu, no specific injury is attributed to other accused. The learned counsel for the appellants submitted that in the court Sonu (P.W.1) has stated that Vishnu gave first blow, thereafter all caused injuries with lathis and thereafter, Vishnu in quick succession caused five injuries with lathi. It is stated that eyewitness account given by Sonu (P.W.1) is not corroborated by the medical evidence as in the medico-legal report, total five injuries were found and in the post mortem report only three injuries were found. 23. In the light of above submissions, the question which arises for consideration before this Court is that whether Sonu (P.W.1) is wholly unreliable witness or can be termed partly reliable or partly unreliable. 24. The defence has proved on record the site plan (Exhibit-D/1). As per the site plan, the occurrence had taken place in front of the house of Nekram. 24. The defence has proved on record the site plan (Exhibit-D/1). As per the site plan, the occurrence had taken place in front of the house of Nekram. To this extent that Vishnu had unauthorizedly without permission had taken the motorcycle of Vinod s/o Ramveer Singh (P.W.6), who had come to call Vinod s/o Murari Lal (P.W.9). The version given by prosecution look probable. It is also case of the hostile witnesses that Om Prakash along with others had gone to lodge protest at the house of the accused Nekram. Thus, it was the conduct of Vishnu which was subject matter of protest and complaint and therefore, grievance if any, will be on the part of Vishnu. Nature of injuries on two hostile witnesses namely Ishwari Prasad (P.W.7) and Vinod s/o Murari Lal (P.W.9) are from blunt object, and except are superficial injury on person of Vinod s/o Murari Lal (P.W.9) other injuries are only complain of pain. Admittedly, all the injuries on the person of Om Prakash are caused by one weapon as all the injuries have been found to be blunt. Sonu (P.W.1) has also stated in the court that Vishnu had caused five blows with lathi on the person of Om Prakash. Thus, Sonu (P.W.1) is partly reliable and partly unreliable witness. He cannot be relied so far number of accused is concerned, but about occurrence and the fact that Vishnu caused five blows and five injuries have been found in medico-legal report (Exhibit-P/12), he stands corroborated by Medical evidence. 25. In the present case, the occurrence had taken place on 10.8.2004, at 5:30 PM. The written report was lodged at the police station on 10.8.2004 at 7:05 PM. The special report reached Illaqa Magistrate on 11.8.2004 at 11:00 AM. Vinod s/o Murari Lal (P.W.9) has also stated that he had signed the FIR and had proceeded to Agra and remaining paper were later signed. Thus, there is a delay in reaching the special report to the Illaqa Magistrate. 26. The Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar [ (2002) 9 S.C.C. 147 ], while considering the effect of delay in reaching of special report, has observed as under:- "6. Thus, there is a delay in reaching the special report to the Illaqa Magistrate. 26. The Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar [ (2002) 9 S.C.C. 147 ], while considering the effect of delay in reaching of special report, has observed as under:- "6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be" and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission." 27. Taking totality of circumstances, we are of the view that in over zeal, Nekram and Sitaram have been falsely implicated. It is a case where considering delay in reaching of special report, it is necessary for us to sift grain from the chaff. All the injuries were caused by Vishnu against whose conduct a complain was being lodged. From the fact that in the FIR five persons were named including lady of the house, we cannot place implicit reliance upon the testimony of witnesses so far number of accused named in the occurrence are concerned. All the injuries were caused by Vishnu against whose conduct a complain was being lodged. From the fact that in the FIR five persons were named including lady of the house, we cannot place implicit reliance upon the testimony of witnesses so far number of accused named in the occurrence are concerned. In the FIR (Exhibit-P/9), it is stated that Sitaram stood armed with a gun, furthermore, no specific injury has been attributed to Sitaram and Nekram. Therefore, as a matter of abundant caution, the benefit of doubt is extended to the accused Sitaram and Nekram, as it cannot be ruled out that they are victim of false implication. 28. Since, the injuries were caused by one weapon which are attributed to Vishnu, we uphold the conviction and sentence of Vishnu. 29. As a parting note, we may clarify that all three accused were convicted for the offence under Section 302/34 IPC, the case of the prosecution right from the beginning is that Vishnu had given the first blow on the head of the deceased, Om Prakash. Since we have come to the conclusion that all the injuries were caused by Vishnu, we convert the conviction of Vishnu from 302/34 IPC to 302 IPC, as held by Hon'ble Supreme Court in the case of Willie (William) Slaney v. State of Madhya Pradesh [ AIR 1956 SC 116 ], no prejudice will be caused to Vishnu for conversion of offence as he was also alternatively charged for the offence under Section 302 substantively. 30. Accordingly the present appeal is dismissed qua Vishnu Singh, appellant No.2 and is accepted qua appellant No.1, Sita Ram and appellant No.3, Nekram. Consequently, conviction and sentence of Sita Ram appellant No.1 and Nekram appellant No.3 is set aside and they are acquitted of the charges. However, conviction and sentence of Vishnu Singh appellant No.2 is affirmed and upheld. Appeal partly allowed.