JUDGMENT Hon'ble Arvind Kumar Tripathi, J.—The Instant Criminal appeal has been preferred against the order of conviction and sentence dated 28.2.1983 passed by III, Additional Sessions Judge, Muzaffarnagar in S.T.No. 333 of 1982 arising out of Case Crime No. 196/1982 under Section 302 I.P.C. PS. Khatauli, District Muzaffarnagar convicting and sentencing the appellant to undergo for life imprisonment. 2. The appeal was admitted and prayer for bail was allowed vide order dated 4.3.1983. On 19.3.2012 bailable warrant was issued to the appellant. In compliance of the order he appeared before the C.J.M. Muzaffarnagar on 21.4.2012 and furnished bail bonds and sureties with an undertaking to appear before this Court. Subsequently again on 10.3.2014 none appeared on behalf of the appellant to press this appeal, hence co-ordinate bench of this Court appointed Shri H.C. Tiwari, Advocate as Amicus curiae to argue this appeal. Thereafter the case was listed on different dates. It was heard and judgment was reserved. Thereafter the case was released on 14.8.2014 by the previous bench of this Court. 3. Shri H.C.Tiwari, Advocate appeared as Amicus curiae on behalf of the appellant and Shri Chandra Jit Yadav, learned A.G.A. appeared on behalf of State of U.P. 4. We heard learned counsel for the parties on 16.9.2016, 19.9.2016 and on 20.9.2016 the judgment was reserved. 5. The brief facts of this case is that the First Information Report was lodged by Smt.Hanifa w/o Turab Ali r/o village Nagla Rudra, PS.Khatauli, District Muzaffarnagar against her brother-in-law (dever) Azmat Ali s/o Istiyak Ali on 5.7.1982 at 10.00 a.m. at police station Khatauli which was registered as Case Crime No. 1961/82 under Section 302 I.P.C. The First Information Report was written on oral complaint of the informant Hanifa. The informant is wife of the deceased Turab Ali. The informant was musalman rajput and was residing at Nagla Rudra. At about 7.00 a.m. on 5.7.1982 the informant and her husband deceased Turab went to their sugarcane field situated near village for picking out the grass. His son Farmuddin was also alongwith her. In the meantime his brother-in-law dever Azmat Ali (appellant) reached there having bhala and phawra in his hand and started cutting dol/maind (small boundary) constructed for demarcation of the agricultural field. Her husband raised objection and asked him not to cut Dol otherwise how he would irrigate his field. His son Farmuddin was also alongwith her. In the meantime his brother-in-law dever Azmat Ali (appellant) reached there having bhala and phawra in his hand and started cutting dol/maind (small boundary) constructed for demarcation of the agricultural field. Her husband raised objection and asked him not to cut Dol otherwise how he would irrigate his field. Her dever using abusing language said that he would see who would dare to stop him from cutting the ‘Dol’. Her husband went near Azmat Ali who pierced bhala in chest of her husband who fell down. She and her son raised voice on which Umed Ali and others villagers reached on the spot who saw Azmat Ali running away with bhala. Her husband died on the spot. Leaving the dead body in the village she went to police Chowki alngwith Chawkidar Zumman for lodging of the First Information Report. On her oral information the report was written and thumb impression was obtained. The Head Moharir Dharmpal also made G.D. entry No. 18 at 10.00 a.m., on the same day i.e. on 5.7.1982. The report and G.D. entry were exhibited as Ext.Ka.1 and Ext.Ka.3 respectively. The chick report was prepared by him in presence of first Investigating Officer. S,I. Ram Ratan Singh,the then S.H.O. Who took up the investigation. He recorded the statement of Mst.Hanifa, the informant and Head Moharir Dharmpal at Police Station. Thereafter he proceeded for the place of occurrence alongwith relevant papers. When he reached at the place of the incident, he saw the dead body. The inquest report was prepared and necessary formalities were completed. After sealing the dead body it was handed over to constable Rajvir and Sukhvir to carry out the same to Muzaffarnagar for autopsy. The investigating officer prepared site plan Ext.Ka.9 and on the same day he arrested the accused appellant from the village. Subsequently on his pointing out recovered bhala Ext.Ka.1 from the room of tubwell (Kothari) of Ausaf Ali, uncle of the appellant. The appellant himself took out the key of the lock from his pocket. He unlocked and went into Kothari from where on his pointing out bhala was recovered. The recovery memo was prepared as Ext.Ka.10 and 11 and was prepared. The blood stained portion of the bhala was sealed and the same was sent for report of chemical examination. 6. The appellant himself took out the key of the lock from his pocket. He unlocked and went into Kothari from where on his pointing out bhala was recovered. The recovery memo was prepared as Ext.Ka.10 and 11 and was prepared. The blood stained portion of the bhala was sealed and the same was sent for report of chemical examination. 6. Thereafter the investigation was transferred to inspector Jay Pal Singh PW-6 (second Investigating Officer) on 8.7.1982. On 11.7.1982 he recorded the statement of Umed Ali PW-2 and Farmuddin PW-3 and statement of constable who brought the dead body to the Muzaffarnagar for post-mortem examination. The post-mortem examination (Ext.Ka.13) was conducted on the body of Turab Ali by Dr.C.S. Tripathi, Medical Officer, Sadar Hospital, Muzaffarnagar PW.4 on 6.7.1982 at 11.00 a.m. 7. The age was noted about 35 years and the period of death was 1, 1/4 days. The post-mortem examination report is Ext.Ka.2. The following anti mortem injuries were noted. 1. Abrasion 1-1/2" x ½ on the forehead just above the left eyebrow. 2. Punctured wound 3"x 1/2 thoracic cavity deep on the left chest. 3" above nipple at 11 O’clock position. Directed downwards backwards medially. Both the margin are clean cut. 3. Incise wound ½ x ¼ x mussel deep on the front of left arm 4.5" at the elbow. Horizontal in direction. On an internal examination the doctor found left internal muscle between 3-4 ribs under the injury No. 2 and 3 was cut. Pleura was also cut. Upper lobe of left lung under injury No. 1 was punctured. Pericardium was punctured. The cause of death was due to shock and hemorrhage on account of above noted injuries. After completing the necessary formalities investigation was concluded by submitting charge-sheet against the appellant Azmat Ali, thereafter the case was committed to the Court of session. The charges were framed under Section 302 I.P.C. which was read over and explained to the accused appellant who pleaded not guilty and claimed to be tried. 8. The prosecution to prove its case examined as many as six witnesses. PW-1 the informant Hanifa, PW-2 Umed Ali, PW-3 Farmuddin, child witness. PW-1 to PW-3 are the witnesses of fact and claimed to be eye-witness, PW-4 Dr.C.S.Tripathi, the Medical Officer who conducted the post-mortem examination. 8. The prosecution to prove its case examined as many as six witnesses. PW-1 the informant Hanifa, PW-2 Umed Ali, PW-3 Farmuddin, child witness. PW-1 to PW-3 are the witnesses of fact and claimed to be eye-witness, PW-4 Dr.C.S.Tripathi, the Medical Officer who conducted the post-mortem examination. S.I.Ram Ratan Singh, first Investigation Officer was examined as PW-5 and Sub Inspector J.P. Singh, the second Investigating Officer who submitted the charge-sheet was examined as PW-6 and he has also proved the Chick First Information Report and G.D. entry dated 5.7.1982. After the evidence was closed by the prosecution the accused was examined under Section 313 Cr.P.C. He denied the allegations. He further stated that Hanifa used to visit the house of Umed Ali. Umed Ali also used to visit the house of the informant Hanifa and his brother the deceased Turab Ali opposed it. The deceased had also beaten her so there was grudge and enmity in between them. He also stated that his brother deceased Turab Ali could not work with spade (phawra) as his hand was shivering (suffering from Parkinson) and ladies of his village did not go to work in the agricultural field. 9. Learned counsel for the appellant challenged the impugned judgement and order on the ground that the First Information Report is anti time that none of the witnesses PW-1 and 2 and PW-3 were present at the place of the incident that it was a blind murder that there is contradiction in the statement of PW-1 and other witnesses i.e. PW-2 and PW-3, that neither blood stained khurpa and phawra nor clothes of the deceased were recovered from the place of the incident, by the investigation officer, that the statement of the witness present at the place of the incident were not recorded by the investigating officer on the same day, hence the prosecution story appears to be doubtful. The delay in examining the PW-1 and PW-2 has not been explained by the investigating officer. According to doctor the injury No. 2 & 3 could not be caused by single blow. PW-3 who was aged about 10 years is a child and tutored witness. The delay in examining the PW-1 and PW-2 has not been explained by the investigating officer. According to doctor the injury No. 2 & 3 could not be caused by single blow. PW-3 who was aged about 10 years is a child and tutored witness. The version of the First Information Report and the statement of PW-1 the informant is not supported by medical report with regard to the nature of the weapon and manner of assault, that had the appellant committed murder of his brother and son of the witnesses, he should have left the village, but since he was innocent, hence he was present in the village and on the same day he was apprehended in the village. The recovery of alleged weapon of assault was planted on his pointing out from the kothari of third person which admittedly did not belong to the appellant. 10. Counsel for the appellant further submitted that it appears that when the deceased went to attend call of nature he was killed by some unknown person. No one has seen the occurrence and subsequently when the family member came to know then with consultation and in connivance with PW-2 the appellant was falsely implicated for murder of his own brother. He submitted that there is no evidence regarding dispute in between the parties i.e. his two brothers the appellant and deceased, hence there was no reason or occasion to all of sudden start dismantling the dole (mairh) and to assault his brother causing fatal injuries. He submitted that there are material contradictions in the statement of the witnesses and that is not supported with medical report. He also contended that neither there was recovery of any blunt object from the spot nor cloths, khurpi, phawra from the place of occurrence which clearly shows that the prosecution story is concocted. Further none of the witnesses of alleged recovery of weapon of assault was examined. He contended that it is also natural that if the informant, the wife of the deceased was present at the place of the incident why she did not huge or even touch the body of her husband. No step was taken to send him immediately to the hospital to save his life, even PW-3 son of the deceased also did not hug/touch the dead body of his father. No step was taken to send him immediately to the hospital to save his life, even PW-3 son of the deceased also did not hug/touch the dead body of his father. These conducts are also unnatural and shows that they were not present at the place of the incident. 11. Learned counsel for the appellant also submitted that according to PW-1, the informant Hanifa, PW-2 Ummed Ali was also present at the place of the incident and he also asked the appellant not to dig the dole (demarcation line by mud) in between two fields. But according to PW-2 after hearing cry “Bachchao Bachchao” he reached to the place of the incident and saw the appellant Azmat Ali while running away from the place of the occurrence with bhala (spear). He also contended that if PW-2 & 3 were eye-witnesses of the incident of occurrence and were present in the village, then why their statements were not recorded by the investigating officer on the same day, which creates doubt and as such their statement are not reliable and conviction and sentence on that basis is liable to be set aside in view of the judgment of the Apex Court reported in AIR 1997 SC 392. He also contended that due to her conduct and her relationship with PW-2, neither collateral of her husband nor any other villager accompanied her to the police station for lodging of the First Information Report and she went to the police station alongwith chowkidar. According to medical report the stomach was found empty so in the early morning he was killed by unknown person. The appellant was falsely implicated. The prosecution failed to prove its case beyond reasonable doubt, hence the impugned judgment and order of conviction is liable to be set aside. He further contended that though the prosecution failed to prove its case beyond reasonable doubt and the appellant is innocent. However, even if the appellant is found guilty then case will not travel beyond Section 304 I.P.C. because all of sudden quarrel took place. The deceased was assaulted with single blow. There was no repetition. 12. Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that there is no delay in lodging of the First Information Report. The distance of the police station is about 9 km from the place of the occurrence. The deceased was assaulted with single blow. There was no repetition. 12. Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that there is no delay in lodging of the First Information Report. The distance of the police station is about 9 km from the place of the occurrence. The incident had taken place at 7.00 a.m. and according to witnesses she remained there at the place of the incident for about 1-1/2 hours. She went alongwith chowkidar for lodging of the First Information Report which was lodged and registered at 10.00 a.m. The presence of the PW-1 and 3, wife and son of the deceased are natural in their sugarcane field alongwith the deceased. There is no material contradiction in their statement. PW-1, PW-2 and PW-3 have fully supported the prosecution case without any material contradiction. The presence of PW-2 Umed Ali is also natural as he was also working in his field which was adjacent to the agricultural field of the appellant Azamat Ali. The story set up by the prosecution in respect of the relation of PW-1 and PW-2 is not supported by any reliable evidence because no evidence was led by the defence on that point. There is no contradiction in the statement of PW-1, PW-2 and PW-3. According to PW-1, Umed Ali PW-2 was present at the place of the incident because his field was adjacent to the field of the appellant, the brother of the deceased and the field of the deceased and the appellant are adjacent divided by dole (demarcation line) constructed by mud. According to PW-2, he was present there in his field and after her cry, he rushed towards the place of occurrence so he was near the place of incident and has ample opportunity to see the occurrence. It is a broad day light incident and the statement of PW-1 is fully corroborated by the medical report. There is no contradiction. It was explained by the witnesses that when he raised bhala to assault the deceased, he raised arm to save him and by the same blow the injury was caused on hand when he pierced ‘Bhala’ into chest, and according to doctor also, in that situation injury No. 2 & 3 could be caused by single blow. 13. The argument of the appellant is against the evidence on record. 13. The argument of the appellant is against the evidence on record. The prosecution proved the case beyond reasonable doubt and the trial Court has rightly held guilty for committing murder of his own brother and rightly the sentence for life imprisonment under Section 302 I.P.C. was awarded and as such the present appeal is liable to be dismissed. 14. Considered the submissions of counsels for the parties. 15. According to the submissions of counsel for the appellant no one has seen the incident. It appears that when the deceased went to attend the call of nature, he was killed and subsequently after consultation and direction of the police the First Information Report was lodged. In the present case Smt.Hanifa, PW-1, wife of the deceased is claiming to be an eye-witness. According to PW-1 she alongwith her husband, the deceased Turab Ali went at their sugarcane field and when the accused appellant, the brother of the deceased started digging and dismantling the dole, (demarcation line/boundary) constructed by mud then her husband asked not to dismantle the same otherwise, how he will irrigate his agricultural field and the appellant pierced bhala on his chest. She also claimed that her minor son was also present at the place of the incident. Her son child witness was examined as PW-3. However, according to her she was digging grass. Her husband was having phawra for digging and picking grass in sugar cane field. 16. According to the witnesses blood was oozing. He was wearing only underwear and he had removed shirt and Banian and kept the same there but from the spot neither khurpi nor phawra nor blood was found and nor clothes were recovered from the place of the occurrence so the place of the incident could not be fixed and proved that the incident took place at the same place, where the dead body was found. Whether the incident was witnessed by PW-1 and other witnesses or not, it has to be examined considering her statement and the statement of PW-2 Umed Ali who was also shown to be present at the place of the incident and P.W.-3(minor son). According to the statement of PW-3, son of the deceased, before the appellant assaulted Umed Ali also raised objection. According to the statement of PW-3, son of the deceased, before the appellant assaulted Umed Ali also raised objection. But according to PW-2 Umed Ali after hearing alarm ‘Bachchao Bachchao’ he rushed towards the place of the incident and saw that the appellant was running from the place of the occurrence with ‘Bhala’ and Turab Ali was lying dead who had received injuries on his left chest and blood was oozing. The wife and son of the deceased Turab Ali were also present at the place of the incident. He also stated that dole was found dismantled. Dole in between two agricultural fields have been dismantled but the investigating officer did not find and noted the cutting of ‘Dole’ in between two fields which was a cause of assault and altercation according to statement of PW-1 and the version of the First Information Report. 17. In the First Information Report she stated that all the three sons were present at the place of the incident which was not mentioned in the First Information Report and it was not the case of the prosecution. In the statement she stated that she has three sons and one daughter. All were present at the place of occurrence at the time of incident. However, in the First Information Report it was not mentioned that the accused appellant ran away with phawra also and even this was not told to the sub inspector in the statement under Section 161 Cr.P.C. so there was improvement in the statements. The Khurpa, Phawada and clothes of deceased were also not recovered from the place of the incident. This was not stated in the statement of PW-1, the informant (wife of the deceased) that when she or her husband (deceased) raised alarm ‘Bachchao Bachchao’ then PW-2 Umed Ali and others witnesses reached at the place of the incident. First time it was stated, even it was not mentioned in the statement under Section 161 Cr.P.C. However, it was stated by PW-1 in her statement that Umed Ali also asked not to cut the ‘Dole’ which is contradictory to the version mentioned in the First Information Report. 18. First time it was stated, even it was not mentioned in the statement under Section 161 Cr.P.C. However, it was stated by PW-1 in her statement that Umed Ali also asked not to cut the ‘Dole’ which is contradictory to the version mentioned in the First Information Report. 18. The allegation made by the appellant is that PW-1 Hanifa, wife of the deceased developed relation with PW-2 Umed Ali regarding which objection was raised by her husband(deceased) as well as the appellant and she was asked not to meet and visit the house of Umed Ali. In cross-examination she denied such relation but she admitted that sometime she used to visit the house of Umed Ali and he also used to visit her house which was completely denied by PW-2 in his statement. He tried to conceal the correct facts. According to defence case, PW-1 and PW-2 might have been involved in the incident and subsequently falsely implicated the appellant. 19. So for as PW-3 Farmuddin is concerned, he was aged about 10 years at the time of statement and was aged about 8-9 years at the time of incident but this child witnesses supported the prosecution versions. According to the statement of PW-3 he was present at the place of the incident. When her mother and he raised alarm then Umed Ali PW-2 ran towards the place of occurrence and Azmat Ali ran away from the place of incident. However according to P.W.-1 informant, P.W.-2 Umed also reached there and asked not to cut the ‘Dole’. It is very surprising in the present case that witness who was present in the village at the place of incident but admittedly his statement was not recorded on the same day rather his statement was recorded after 5-6 days. This creates doubt. However according to P.W.-1 informant, P.W.-2 Umed also reached there and asked not to cut the ‘Dole’. It is very surprising in the present case that witness who was present in the village at the place of incident but admittedly his statement was not recorded on the same day rather his statement was recorded after 5-6 days. This creates doubt. On the delay in recording the statement under Section 161 Cr.P.C. on this point the counsel for the appellant-amicus curiae relied the judgment of Apex recorded 1997 SSC Crl.1179 equivalent 1997 (11) SCC 199 State of U.P. in Para -5 that the such contradiction becomes relevant when the investigating officer did not record the statement of any of the witness named in the First Information Report on the first day on which he arrived at the place of occurrence about 3.30 p.m. Non recording of such statement on the date of occurrence despite sufficient opportunity to record creates doubt about authenticity of the contents of the First Information Report and also the testimony of the eye-witnesses. 20. According to counsel for the appellant P.W.-3 is a child witness and tutored witness though he was not present at the place of the incident. In the present case PW-1 is wife of the deceased and PW-3 is son of the deceased and it is very unnatural that according to their statements incident took place in their presence, but they did not try to hug and touch the deceased. Turab Ali in emotion or even to take any steps to save him. Whether he was alive and immediately medical aid was required or not but their conduct is unnatural which creates doubt regarding their presence on the place of occurrence. Though PW-3 was present at the place of the incident but his statement was not recorded by the investigating officer on the same day rather the same was recorded after five days. When the incident took place according to prosecution case PW-2 and other villagers reached at the place of the incident but none accompanied with PW-1 Hanifa when she went to lodge the First Information Report at the police station and only chowkidar Zumman went alongwith her. When the incident took place according to prosecution case PW-2 and other villagers reached at the place of the incident but none accompanied with PW-1 Hanifa when she went to lodge the First Information Report at the police station and only chowkidar Zumman went alongwith her. According to counsel for the appellant this also creates doubt regarding conduct and character of PW-1 and her behaviour towards the deceased so none of the villagers and even collateral accompanied her but no evidence was adduced by the defence in respect of her behavior and character. 21. The recovery of bhala was shown on the pointing out of the appellant from kothari of third person. 22. Apart from that the presence of the blood shown on the ‘Bhala’ was disintegrated, hence there was no evidence to establish the use of ‘Bhala’ alleged to have been recovered on pointing out of the appellant because in the present case even none of the witnesses have been examined to prove the alleged recovery of bhala on pointing out of the appellant. The doctor S.C.Tripathi who conducted the post-mortem examination stated that much blood would have been oozed from injuries No. 2 and 3 but there is no recovery of blood from the place of the incident. Injuries might have been caused at 4-5 a.m. and also on 5.7.1987 at about 7.00 a.m. The injury No. 2 which was punctured wound was backward cavity deep and was downward. Such injury can be caused only after the deceased fell down or the accused was standing at higher place from the place of the deceased. The appellants and the deceased are real brothers. Admittedly reason and motive was very week. There is no evidence that such quarrel took place Earlier with regard to the demarcation line (boundary constructed by mud) and all of sudden he started digging the same and when the objection was raised he assaulted his brother causing fatal injury. This story also becomes doubtful particularly when the investigating officer did not find and noted the digging of dole (mairh) constructed by mud. 23. In view of the aforesaid discussion, the prosecution story become doubtful. It appears that no one has seen the incident. Subsequently the First Information Report was lodged implicating the appellant with support of PW-2 Umed Ali. This story also becomes doubtful particularly when the investigating officer did not find and noted the digging of dole (mairh) constructed by mud. 23. In view of the aforesaid discussion, the prosecution story become doubtful. It appears that no one has seen the incident. Subsequently the First Information Report was lodged implicating the appellant with support of PW-2 Umed Ali. The prosecution was required to prove its case beyond reasonable doubt, hence the appellant is entitled for benefit of doubt. Considering the contradiction and the facts as discussed above it will not be safe to held the appellant guilty to convict and sentence for life imprisonment. 24. In view of the aforesaid discussion the impugned order of conviction and sentence dated 28.2.1983 passed in S.T. No. 333/82 is hereby set aside accordingly this appeal is allowed. The bail bond and sureties stand discharged provided appellant furnish fresh bail bond and sureties in compliance of Section 437-A Cr.P.C. before the trial Court at earliest. 25. Let this order be communicated to the Court concerned to ensure compliance of the order.