JUDGMENT 1. - On 30.8.2006, at about 6:00-7:00 PM, in village Beragarh, as per prosecution case, family of Ramlal which included his three sons namely Phool Chand, Mangilal, Harak Chand, Gulab Bai wife of Ramlal, Kasturi Bai and Kesar Bai wives of Phool Chand and Mangilal, respectively, had caused murder of Motilal and also caused injuries to his three sons Bhanwar Lal (not examind), Pappu (P.W.6) and Ram Gopal (P.W.7). 2. All the above seven accused were tried by the court of Additional Sessions Judge, Aklera, District Jhalawar. The trial Judge vide impugned judgment dated 6.2.2008, acquitted Ramlal, Gulab Bai, Kasturi Bai and Kesar Bai. However, the trial court held Phool Chand substantively guilty of offence under Section 302 and 323 IPC and convicted the accused Mangilal and Harak Chand with the aid of Section 34 IPC for offence of murder and causing simple injuries. The trial court acquitted Phool Chand, Mangilal and Harak Chand for the offence under Section 147 and 148 IPC and also of the charge of murder and simple injuries with the aid of Section 149 IPC by applying Section 34 IPC qua these offences. 3. Having convicted the appellants, in above terms vide a separate order of even date, the trial court sentenced appellant Phool Chand, Mangilal and Harak Chand as under:- U/s 302 and 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo five month R.I. U/s 323 and 323/34 IPC- to undergo one month R.I. The trial court further ordered that the sentence awarded upon the appellants shall run concurrently. 4. Aggrieved against their conviction and sentence, the appellant Phool Chand has preferred D.B. Criminal Appeal No. 284/2008 and the appellants, namely Mangilal and Harak Chand have instituted D.B. Criminal Appeal No. 283/2008. Since both the appeals assail common judgment of conviction and sentence, they shall be decided together. 5. In the present case, the accused and the complainant are neighbours. On a trivial issue regarding parking of a tractor by the complainant party in the street, in front of the house of the accused, the occurrence had ensued. 6. The statement of Ram Gopal (P.W.7) was recorded by Latif Mohd. (P.W.16), who was then posted as SHO, at Police Station Bhalta. Latif Mohd. On a trivial issue regarding parking of a tractor by the complainant party in the street, in front of the house of the accused, the occurrence had ensued. 6. The statement of Ram Gopal (P.W.7) was recorded by Latif Mohd. (P.W.16), who was then posted as SHO, at Police Station Bhalta. Latif Mohd. (P.W.16) in the court stated that on 30th and 31st August, 2006, he had gone to Kota to give his evidence in a court case. On 31.8.2006, he received a telephonic information from Amar Lal, ASI that injured Moti Lal has been referred from SRG Hospital, Jhalawar to Kota and therefore, necessary legal action be taken. After receipt of telephonic information, on 31.8.2006, Latif Mohd. (P.W.16) reached MBS Hospital, Kota. Moti Lal was lying admitted in the hospital. As per opinion of the doctor, Moti Lal was not fit to make statement. Resultantly, he recorded the statement (Exhibit-P/7) of Ram Gopal (P.W.7). 7. Ram Gopal (P.W.7) in his statement made before SHO, Police Station Bhalta, stated that his house is situated close to the house of the accused Phool Chand. On 30.8.2006, at about 6:00-7:00 PM, accused Phool Chand, Mangilal, Harak Chand and their father Ramlal asked his father, Moti Lal as to why he had parked the tractor in the street. Then, his father told them that he will remove the tractor in the morning. Upon which, Phool Chand, Mangilal, Harak Chand, Ramlal, Kesar Bai and Kasturi Bai with common intention armed with lathis, gandasi and stones attacked while giving abuses. Phool Chand in order to murder, caused a gandasi injury on the head of his father, Moti Lal, due to which his father became unconscious and fell at the spot. Mangilal and Harak Chand, who were armed with lathis, also caused injuries to his father. The complainant, Ram Gopal (P.W.7) and his two brothers, namely Pappu (P.W.6) and Bhanwar Lal (not examined) came forward to save their father. The accused Ramlal, Magilal and Harak Chand also gave beating to them with lathis. Kasturi Bai and Kesar Bai pelted stones. Rai Singh (P.W.5) and Har Lal lifted his father and brought him inside the house. Thereafter, Mangilal, Phool Chand and Harak Chand had pelted stones at their house. His father received injuries on the head. He was brought in a vehicle of Kalu (P.W.15) to hospital at Jhalawar and was got admitted. Kasturi Bai and Kesar Bai pelted stones. Rai Singh (P.W.5) and Har Lal lifted his father and brought him inside the house. Thereafter, Mangilal, Phool Chand and Harak Chand had pelted stones at their house. His father received injuries on the head. He was brought in a vehicle of Kalu (P.W.15) to hospital at Jhalawar and was got admitted. The said hospital referred the father of the complainant to hospital at Kota. Thereafter, he was brought and got admitted in MBS Hospital, Kota. The condition of the father of the complainant was precarious as he was unconscious. The accused keeping grudge over the parking of the tractor had caused the occurrence. 8. In the present case, the occurrence had taken place on 30.8.2006 at 6:00-7:00 PM. The statement of Ram Gopal (P.W.7) was recorded at MBS Hospital, Kota on 1.9.2006 at 8:00 PM and after registration of the case, the special report reached the Illaqa Magistrate, Aklera on 4.9.2006. 9. The prosecution in all had examined sixteen witnesses. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. The prosecution has also proved on record the document from Exhibit-P/1 to Exhibit-P/39. No witness was examined by the accused in defence and they got exhibited the statement made by the Ram Singh (Exhibit-D/1) and Ram Gopal (Exhibit-D/2) under Section 161 Cr.P.C. to the police. They also got exhibited letter from SHO, Police Station Bhalta to Director, FSL, Rajasthan, Jaipur as Exhibit-D/3. 10. The case of the prosecution rests on the testimony of five eyewitnesses, namely Hem Raj (P.W.2), Rai Singh (P.W.5), Pappu (P.W.6), Ram Gopal (P.W.7) and Mool Chand (P.W.8). 11. Before we advert to the evidence of the eyewitnesses, we shall notice the medical evidence. 12. Dr. Paramnand Meena (P.W.9) on 2.9.2006, at 4:00 PM, medico-legally examined Ram Gopal (P.W.7) and as per injury report (Exhibit-P/8), had found following injuries on his person:- "(i) Abrasion with scab formation, 1" x ", scalp mid-line, simple, blunt. (ii) Abrasion with scab, 1" x ", at base of middle and little finger. (iii) C/o pain, at back, left side." 13. On the same date and time, Dr. Paramnand Meena (P.W.9) also examined Pappu (P.W.6) and as per injury report (Exhibit-P/9), had found the following injuries on his person:- "(i) Abrasion with scab formation, 0.5" x " at left side Eyebrow upper and lower part. (ii) Swelling, 1" x 1", at skull. (iii) C/o pain, at back, left side." 13. On the same date and time, Dr. Paramnand Meena (P.W.9) also examined Pappu (P.W.6) and as per injury report (Exhibit-P/9), had found the following injuries on his person:- "(i) Abrasion with scab formation, 0.5" x " at left side Eyebrow upper and lower part. (ii) Swelling, 1" x 1", at skull. (iii) C/o pain, at back shoulder." 14. Dr. Paramnand Meena (P.W.9) also examined Bhanwar Lal and as per injury report (Exhibit-P/10) had found the following injuries on his person:- "(i) Swelling, 2" x 1", at skull, simple, blunt. (ii) C/o pain, right Elbow." In cross-examination, this witness stated that the injuries noted in the injury reports (Exhibit-P/8 and Exhibit-P/10) can be result of fall. 15. Dr. Deepak Sharma (P.W.14) on 1.9.2006 at 12:45 PM, had conducted the autopsy on the dead body of Moti Lal and as per Post Mortem Report (Exhibit-P/16), had found the following injuries on the person of the deceased:- "(i) Stitched wound, (4cm long), on left parietal region, extending from mid of suture line to occipital region. (ii) Stitched wound, 2cm long, on right parietal region. (iii) Operated wound (stitched), 22cm long, extending from right mastoid region to right frontal region, horse shoe shape." 16. As per this witness, on opening of the skull, extra-dural haematoma was found and on the left and right side of fronto-parietal region, many small fractures were found. As per opinion of the doctor, the cause of death was Coma as a result of ante mortem head injury, which was sufficient to cause death in ordinary course of nature. 17. What is to be noted that no injury statement of the deceased, Moti Lal was prepared and in Post Mortem Report (Exhibit-P/16) three stitched injuries on the head were noticed. 18. Prabhu Lal (P.W.1) had attested the Panchnama of the dead body (Exhibit-P/1). This witness further stated that in his presence police had taken into possession the clothes of the deceased vide memo Exhibit-P/2 and he had also signed Exhibit-P/3 regarding delivery of dead body to the family members. 19. Panna Lal (P.W.3) had attested the inquest proceedings (Exhibit-P/1). Madan Lal (P.W.4) had attested the site plan of the spot (Exhibit-P/4). Shyam Sunder (P.W.10) was posted as Constable and he had carried sealed samples for deposit in the FSL laboratory at Jaipur. 19. Panna Lal (P.W.3) had attested the inquest proceedings (Exhibit-P/1). Madan Lal (P.W.4) had attested the site plan of the spot (Exhibit-P/4). Shyam Sunder (P.W.10) was posted as Constable and he had carried sealed samples for deposit in the FSL laboratory at Jaipur. Kalu Khan (P.W.13) In-charge of the Malkhana had handed over the articles to Shyam Sunder (P.W.10). Both Shyam Sunder (P.W.10) and Kalu Khan (P.W.13) were examined to prove link evidence. Shobha Ram (P.W.11) had witnessed the recovery of gandasi from the accused Phool Chand. Ram Chandra (P.W.12) had attested the site plan of the spot. Kalu Lal (P.W.15) was owner of the pick-up van in which the deceased, Moti Lal was transported to the hospital. 20. Now, we shall notice the evidence of the eyewitnesses. 21. Hem Raj (P.W.2) in the court stated that on the day of occurrence at 6:00 PM, the tractor was parked in front of the house of the accused Phool Chand. Phool Chand, Mangilal and Harak Chand and their father Ramlal, Kasturi Bai, Kesar Bai and Gulab Bai told his father to remove the tractor, upon which his father stated that he will do the same in the morning. Thereafter, the accused came armed in their house. Immediately on coming, Phool Chand gave a gandasi blow on the head of his father, Moti Lal. His father became unconscious and fell on the ground. While he was lying fallen, remaining accused had caused injuries to his father with lathis. When, Bhanwar Lal, Ram Gopal (P.W.7) and Pappu (P.W.6) came forward to save his father, they were caused injuries with lathis and due to pelting of stones. Rai Singh (P.W.5) brought his father inside the house. Thereafter, Phool Chand, Mangilal and Harak Chand had pelted stones. 22. Rai Singh (P.W.5) in the court stated that due to parking of the tractor, a dispute had arisen. The accused came armed with lathis and gandasi. Phool Chand caused gandasi blow on the head of Moti Lal. He also gave another injury on his face. Other accused also caused injuries to Moti Lal. Thereafter, due to pelting of stones and wielding of lathis, injuries were caused to Ram Gopal (P.W.7) and Pappu (P.W.6). 23. To the similar effect, Pappu (P.W.6), Ram Gopal (P.W.7) and Mool Chand (P.W.8) had testified before the trial court. 24. He also gave another injury on his face. Other accused also caused injuries to Moti Lal. Thereafter, due to pelting of stones and wielding of lathis, injuries were caused to Ram Gopal (P.W.7) and Pappu (P.W.6). 23. To the similar effect, Pappu (P.W.6), Ram Gopal (P.W.7) and Mool Chand (P.W.8) had testified before the trial court. 24. All the witnesses have stated that the first blow was given by the accused Phool Chand on the head of the deceased, Moti Lal. Rai Singh (P.W.5) who is an independent witness, had also stated that the accused Phool Chand had caused another injury on the face of the deceased, Moti Lal. Though the witnesses, in the court stated that after Moti Lal fell on the spot, remaining accused had also caused injuries to Moti Lal. However, the medical evidence belie this part of the prosecution case. Three stitched wound being Injury Nos. 1 to 3 were found on the head of the deceased, Moti Lal in the Post Mortem Report (Exhibit-P/16). Since no open injury was found except three stitched wound, it can safely be inferred that the said injuries were result of one blow. Be that as it may, Rai Singh (P.W.5) had stated that the appellant, Phool Chand had caused two injuries on the person of the deceased, Moti Lal. Thus, we rule out the statement made by the witnesses that remaining six accused had caused injuries to Moti Lal when he was lying fallen on the ground. The prosecution version on this aspect has not been believed qua Ramlal, Gulab Bai, Kasturi Bai and Kesar Bai. 25. No injury attributed to six accused except Phool Chand on the body of the deceased, Moti Lal, has been found in the medical evidence. 26. Now, we shall come to the injury received by Pappu (P.W.6) and Ram Gopal (P.W.7). They both have suffered simple injuries caused by blunt weapon. Their another brother, Bhanwar Lal who has not been examined, has also suffered simple injuries in the occurrence. In the present case, there is no previous enmity between the parties. 26. Now, we shall come to the injury received by Pappu (P.W.6) and Ram Gopal (P.W.7). They both have suffered simple injuries caused by blunt weapon. Their another brother, Bhanwar Lal who has not been examined, has also suffered simple injuries in the occurrence. In the present case, there is no previous enmity between the parties. Their relations were cordial and on the day of occurrence, due to parking of tractor in a narrow street of the village, near the house of accused, a protest was raised by the accused and instead of removing the tractor then and there, the deceased Moti Lal refused to consider the request made by the accused and had stated that he will remove the tractor in the morning. 27. Considering that the occurrence had taken place on 30.8.2006 at 6:00-7:00 PM, FIR was lodged on the next day i.e. on 1.9.2006 at 8:00 PM, we are of the view that delay in recording the statement of Ram Gopal (P.W.7) and registration of the FIR has been used for consultations and deliberations to inflate number of accused. 28. In the present case, special report had reached the Illaqa Magistrate after three days of the occurrence on 4.9.2006. The delay in reaching of the special report has not been explained by the prosecution, especially when Post Mortem stood conducted on the dead body of Moti Lal by Dr. Deepak Sharma (P.W.14) on 1.9.2006. 29. What is the effect of delay in reaching of special report, has been dealt with by the Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar, 2002 (9) SCC 147 , 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. 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. 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. 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. 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 reprt 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." 30. Considering that the FIR was result of consultations and deliberations and attempt had been made to involve the family members of Ramlal, we are of the view that it is a fit case wherein this Court has been called upon to sift the grain from the chaff. Since, we have already stated that there was no previous enmity between the parties and on the day of occurrence due to parking of a tractor, near the house of the accused, suddenly the occurrence had ensued, we can assume that when the accused made a protest and asked the deceased, Moti Lal to remove the tractor, hots words were exchanged between the parties, which led to flaring of the tempers and Phool Chand had caused solitary injury on the head of the deceased, Moti Lal. In the FIR it was stated that thereafter, accused had pelted stones at the house of the complainant. It is a case of the prosecution that due to pelting of stones, family members of the deceased, Moti Lal, Bhanwar Lal (not examined), Pappu (P.W.6) and Ram Gopal (P.W.7) had suffered simple injuries caused with blunt weapon. In the FIR it was stated that thereafter, accused had pelted stones at the house of the complainant. It is a case of the prosecution that due to pelting of stones, family members of the deceased, Moti Lal, Bhanwar Lal (not examined), Pappu (P.W.6) and Ram Gopal (P.W.7) had suffered simple injuries caused with blunt weapon. Even if, we assume that the injuries on the person of Bhanwar Lal, Pappu (P.W.6) and Ram Gopal (P.W.7) were caused by the accused, we cannot become oblivious of the fact that simple injuries were caused by three accused after the fatal injury had already been caused on the person of the deceased, Moti Lal. 31. We have already held that the occurrence was a sudden affair and it had resulted into the murder of the deceased, Moti Lal without any pre-mediation over a trivial issue over the parking of tractor between the neighbours. The very fact that Mangilal and his brother Harak Chand had caused simple injuries with blunt weapon to the witnesses, we are of the view that they never shared the common intention with the co-accused Phool Chand. Thus, we will be hesitant to invoke the Section 34 IPC qua the appellants Mangilal and Harak Chand. 32. Taking totality of the circumstances, we acquit the appellant Mangilal and Harak Chand of offence under Section 302/34 IPC. The appeal preferred by the appellants, Mangilal and Harak Chand stands allowed. 33. However, we uphold their conviction for the offence under Section 323/34 IPC. We find no merit in the appeal preferred by the appellant Phool Chand, as he has caused fatal injury on the person of the deceased, Moti Lal and as per Rai Singh (P.W.5), Phool Chand had also caused another blow. Hence, the appeal preferred by the appellant Phool Chand is dismissed. 34. The trial court has also sentenced Mangilal and Harak Chand for the offence under Section 323 IPC to one month R.I. Both the appellants were taken into custody on 6.2.2008 and were granted bail by this Court on 21.4.2008. Thus, they have undergone the sentence awarded under Section 323 IPC. Therefore, they shall not be taken into custody and bail bonds furnished by them shall stand discharged. 35. Thus, they have undergone the sentence awarded under Section 323 IPC. Therefore, they shall not be taken into custody and bail bonds furnished by them shall stand discharged. 35. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, Mangilal and Harak Chand are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal No. 284/2008 dismissed and Appeal No. 283/2008 partly allowed. *******