JUDGMENT 1. (Oral) - Saiyed Tanveer Ahmed (P.W.7) on 06th February, 2004 at about 9.30 P.M. presented written complaint (Ex.P/27) before Giriraj Prasad (P.W.12), incharge Police Station, Bhimganj Mandi, Kota City. 2. On the basis of said written report (Ex.P/27), formal FIR (Ex.P/28), bearing No. 27/2004 was registered at Police Station, Bhimganj Mandi, District Kota City for offences under Sections 147, 148, 149 and 302 IPC. 3. Saiyed Tanveer Ahmed (P.W.7) in the FIR (Ex.P/28) had nominated four appellants as accused. They were tried by the Court of Additional Sessions Judge (Fast Track), No. 2, Kota. By impugned judgment dated 31st August, 2004 the said Court held Imran Khan @ Sanjay substantively liable for offence under Section 302 IPC, whereas co-accused Raies @ Mohammad Farid, Mohammad Hussain and Shakeel @ Shakku @ Chhota Shakeel were convicted for offence under Section 302 readwith Section 34 IPC. By a separate order of even date, all four accused appellants were sentenced to life imprisonment, and were directed to pay a fine of Rs. 1000/- each, and in default thereof, to further undergo one month of simple imprisonment. 4. Aggrieved against the judgment of conviction and sentence, three appeals have been filed. 5. Raies @ Mohammad Farid has preferred D.B.Criminal Appeal No. 1004/2004. Imran Khan @ Sanjay and Mohammad Hussain have instituted D.B.Criminal Appeal No. 1043/2004, whereas Shakeel @ Shakku @ Chhota Shakeel has filed D.B.Criminal Appeal No. 1080/2004. 6. All the three appeals shall be decided by us together by way of this common judgment. 7. Criminal proceedings were set into motion on the basis of written report (Ex.P/27) submitted by complainant Saiyed Tanveer Ahmed (P.W.7). Complainant in the written report, stated that on 06th February, 2004 at about 8.45 P.M., he along with Irfan, Raies, Raies Mohammad, Shafik and Lucky @ Satvinder were standing in front of shop named and styled as Ekta stationers at Gurudwara Road, Kota Junction. They were talking to each other then, when suddenly the accused Raies, Imran, Shakeel, Mohammad and two other boys emerged from Chakki-Wali-Gali. Imran was armed with Kulhari, Shakeel, Mohammad and two other boys were armed with sariya. Immediately, on arrival Raies caught hold of Irfan from the neck, and made him fall on the ground, while Irfan was lying on the ground, Imran gave a kulhari blow on the neck of Irfan, due to which, neck of Irfan suffered an incised injury. Imran was armed with Kulhari, Shakeel, Mohammad and two other boys were armed with sariya. Immediately, on arrival Raies caught hold of Irfan from the neck, and made him fall on the ground, while Irfan was lying on the ground, Imran gave a kulhari blow on the neck of Irfan, due to which, neck of Irfan suffered an incised injury. Imran gave a second blow of kulhari which hit on the left foot of Irfan, due to which he suffered another injury on the heel of the left foot. While Irfan was lying fallen, Shakeel, Mohammad, Raies and other two boys gave injuries with sariya on various parts of his body. Irfan died at the spot. The occurrence was witnessed by Raies Mohammad (P.W.5), Mohammad Raies (P.W.8), Mohammad Shafik @ Shaffi (P.W.4) and Lucky @ Satvinder Singh (P.W.9). It was stated in the written report (Ex.P/27) that in the house of Irfan, accused Imran and his family members were tenant. Due to anti-social activities of Imran and his family members, Irfan's family had forcibly evicted them from their house. Furthermore, Irfan had to recover the huge amount from Imran and his father Samsuddin and uncle, Pappu. Due to the above said grudge, the accused, with common intention, made murderous assault upon Irfan. Accused after giving beating, left Irfan dead at the spot, and ran away. It was stated in the complaint that since Irfan had died, legal action be taken against the accused. 8. A perusal of the FIR reveals that dispute if any, was between Imran, the principal accused, who has been substantively convicted for offence under Section 302 IPC, and the deceased Irfan. We may further notice that in the present case, occurrence had taken place on 06th February, 2004 at 8.45 P.M. whereas case was registered at Police Station, Bhimganj Mandi in Kota itself at 9.30 P.M. However, the special report in Kota City itself had reached the area of Magistrate on the next date i.e. 7th February, 2004 at 1.00 P.M. Thus, there was a delay of about 16 hours in reaching of the special report to the area Judicial Magistrate in the same city. 9. Saiyed Tanveer Ahmed (P.W.7) in Court has reiterated as to what was stated by him in the FIR. In the Court, the witness stated that he knew Irfan. Irfan died because of injuries caused to him. 9. Saiyed Tanveer Ahmed (P.W.7) in Court has reiterated as to what was stated by him in the FIR. In the Court, the witness stated that he knew Irfan. Irfan died because of injuries caused to him. He was murdered on 06th February, 2004 at about 8.45 or 9.00 P.M. He along with Satvinder, advocate was standing in front of the shop Ekta Stationers at Gurudwara Road near the station. He had gone there to purchase a pen. At that time, deceased Irfan was also standing along with Raies Rabbani. Four persons murdered Irfan. The name of assailants were disclosed as Imran, Farid @ Raies, Mohammad Hussain and Shakeel. This witness saw all the four appellants causing injuries to Irfan. One was armed with Kulhari and other three were armed with sariya. He saw the accused from their back. The accused had also chased him. Irfan had suffered an injury with a kulhari on neck, and left foot. He had heard noise of injuries caused with sariya. He further stated that he is not in a position to tell as to which accused caused which injury. This witness admitted that father of Irfan is his maternal uncle and his father informed him that accused Imran was their tenant. 10. Mohammad Raies (P.W.8) has not supported the prosecution case and was declared hostile by the prosecution. He stated he had not seen any occurrence and accused were not named by him. 11. Satvinder Singh (P.W.9) in the Court stated that three-four boys came from Chaki-wali-gali; they caused injuries to Irfan. This witness further stated that name of the assailants were not known to him, and he cannot identify the accused. This witness was also declared hostile. 12. Mohammad Shafik @ Shafi (P.W.4) in Court stated he knew Ifran. He was his friend. He was murdered. This witness further stated that he along with Raies, and Raies Rabani were having conversation with Irfan when Tanvir and his friend Lucky Jasvinder also came. At that stage, all the four accused came. Raies @ Farid caught hold of collar of Irfan and made him fall on the ground. Imran gave a blow of kulhari on the neck of Irfan, due to which, he also suffered injury of back side of head. Imran had also caused injury on the shoulder and left foot of Irfan. 13. Raies @ Farid caught hold of collar of Irfan and made him fall on the ground. Imran gave a blow of kulhari on the neck of Irfan, due to which, he also suffered injury of back side of head. Imran had also caused injury on the shoulder and left foot of Irfan. 13. We need not notice the testimony of other witnesses who have participated in recovery of weapon, or attested arrest memo of the accused or conducted investigation, or participated in the investigation, as the present case, rest on the eyewitnesses account. In the written report (Ex.P/27) and in the testimony of Mohammad Shafik @ Shafi (P.W.4) the categorical stand of the prosecution is that accused Raies @ Mohammad Farid had caught hold of collar of the deceased Irfan. He made him fall on the ground. Thereafter, Imran Khan @ Sanjay who was armed with kulhari had caused injury on the neck, back of the head, shoulder and the left foot of deceased Irfan. 14. It is a case of prosecution that deceased Irfan son of Abdul Kadir had died at the spot. In view of the specific allegations emerging in the prosecution case, it is necessary for us to notice medical evidence. 15. Autopsy of the dead body of Ifran was conducted by Dr. P.K. Tiwari (P.W.3) on 07th February, 2004 at 10. 00 A.M. This witness had found following nine injuries on the person of deceased Irfan:- (1) 11x3 cm chop wound on the left side of neck. This wound was a deep cut up to the level of cervical verlibra. (2) Chop wound on left leg 6cm x 3cm towards the rear side where ⅓ portion of the left leg, both the bones of left leg were fractured. (3) Incised wound on occipital region 11cm x 2 cm on the back of head traverse bone deep brain matter was coming out. (4) Incised injury on the left skull of 5cmx 1cm bone deep. (5) Incised injury on the left forearm 6cm x0.5 cm. (6) An abrasion 1cm x 1cm on left elbow. (7) An abrasion on the left shoulder 2cm x 2cm. (8) Incised wound 4cm x 1 cm on the right leg. (9) An abrasion 4cm x 1cm on the left leg. 16. Out of the nine injuries, six injuries have been caused with an incised weapon. Dr. (6) An abrasion 1cm x 1cm on left elbow. (7) An abrasion on the left shoulder 2cm x 2cm. (8) Incised wound 4cm x 1 cm on the right leg. (9) An abrasion 4cm x 1cm on the left leg. 16. Out of the nine injuries, six injuries have been caused with an incised weapon. Dr. P.K. Tiwari (P.W.3) in the Court stated that injury No. 1 and 2 were caused with a heavy sharp weapon, injury No. 3, 4 and 5 were caused with an incised weapon and the remaining injuries were caused with blunt weapon. 17. A perusal of the testimony of Dr. PK Tiwari (P.W.3) reveals that injury No. 8 was also caused with an incised weapon. 18. Thus, for three abrasions i.e. Which are injury 6 an abrasion 1cm x 1 cm, injury No. 7 an abrasion 2cm x 2cm on the right shoulder, and injury No. 9 which is also an abrasion 4cm x 1cm on the left leg, three accused namely; Raies @ Mohammad Farid, Mohammad Hussain and Shakeel @ Shakku @ Chhota Shakeel who as per prosecution were armed with blunt weapon i.e. Sariya, (iron-rod) have been sent for the trial. 19. At the cost of repetition, it is submitted that kulhari is a heavy sharp weapon and Imran Khan @ Sanjay who was armed with this weapon had caused six injuries i.e. Injury No. 1 to 5 and 8. 20. We have already noted that there is a delay in reaching of the special report. Thus, we cannot rule out that for three abrasions, three accused have been introduced, taking benefit of delay in reaching of the special report as result of consultations and deliberations to inflate the number of the accused. 21. The Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar [ 2002 (9) SCC 147 ] , while considering the effect of delay in reaching of the 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. 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. 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. 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." 22. Delay in reaching of the special report call upon us to examine the role of injury attributed to each accused-appellants to sift chaff from the grain. 23. Thus, taking into consideration the delay of 16 hours in reaching of the special report to the area Magistrate, and the fact that all six major injuries are attributed to accused Imran Khan who was armed with kulhari, we are of the view that the possibility that other appellants namely Raies @ Mohammad Farid, Mohammad Hussain and Shakeel @ Shakku @ Chhota Shakeel are victim of over-implication cannot be ruled out, especially when they have been held responsible for causing one abrasion each which can also be caused by principal accused, who is armed with kulhari. It is to be further noted that all the three abrasions attributed to one accused each is on the non-vital part of the body. It is to be further noted that all the three abrasions attributed to one accused each is on the non-vital part of the body. Furthermore, these abrasions can be caused with reverse side of kulhari. Injuries in quick succession were caused with a kulhari by appellant Imran on the person of Irfran deceased. 24. As a result of above discussion, we accept D.B.Criminal Appeal No. 1004/2004 preferred by Raies @ Mohammad Farid, D.B.Criminal Appeal No. 1080/2004 instituted by Shakeel @ Shakku @ Chhota Shakeel and partly accept D.B.Criminal Appeal No. 1043/2004 qua appellant Mohammad Hussain. However, we dismiss D.B.Criminal Appeal No. 1043/2004 qua principal accused Imran Khan @ Sanjay who has been substantively convicted for offence under Section 302 IPC. 25. Consequently, we uphold the conviction of Imran Khan @ Sanjay for offence under Section 302 IPC and sentence awarded upon him on this count. However, we set aside the conviction and sentence awarded upon appellants Raies @ Mohammad Farid, Mohammad Hussain and Shakeel @ Shakku @ Chhota Shakeel and acquit them of the charges.Appeal disposed of. *******