JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Present appeal has been filed by Ramji alias Ramjilal and Shiv Singh, to challenge the impugned judgment dated 31.3.2005 rendered by the Court of Addl. Sessions Judge No. 3 (Fast Track), Dholpur, whereby appellants have been convicted for offence u/sec. 148, 452, 307/149 and 302/149 IPC. In the appeal the appellants have also assailed the order of sentence of even date whereby appellants were sentenced as under:- "u/sec. 148 IPC: Three years rigorous imprisonment u/sec. 452 IPC: Seven years rigorous imprisonment and to pay a fine of Rs. 1000 and in default of payment of fine to undergo one month simple imprisonment. U/sec. 307/149 IPC: Ten years rigorous imprisonment and to pay a fine of Rs. 5000 and in default of payment of fine to undergo six months simple imprisonment. U/sec. 302/149 IPC: Life imprisonment and to pay a fine of Rs. 5000 and in default of payment of fine to undergo six months simple imprisonment. All sentences were ordered to run concurrently." 2. Criminal proceedings in the present case were set into motion on the basis of written report (Ex. P. 1) presented by Gunna Meena (P.W. 2) before Ranjit Singh (P.W. 10), who was then posted as SHO Police Station Sarmathura. SI, Ranjit Singh (P.W. 10) deposed before the Court that on 3.11.2003 when he was posted at Police Station Sarmathura, Gunna Meena (P.W. 2) appeared before him and had presented written report to him. It will be apposite here to reproduce the English translation of written report (Ex. P. 1), as under:- "To SHO sahab, Police Station Sarmathura. Sir, It is submitted that I am a resident of Manpura. Today on 3.11.2003 at about 10:00 P.M., I after having taken my dinner was preparing to retire for sleep, then Nihala, Narain Singh S/o. Gansibbu, Sriniwas son of Narain Singh, Atra son of Nihal Singh, caste Meena resident of Deewanpura, and Ramji S/o. Lalaram caste Meena resident of Manpur and Shiv Singh Meena resident of Paveni, came. Nihal Singh was armed with a country made pistol, whereas others were armed with guns. All started giving abuses. I restrained them not to abuse. Due to fear I was going inside my house and my wife Bhanwarpati was close to the door. Then Nihal fired a gunshot which abrasing my left armpit and rib, had hit my wife Bhanwarpati at the chest. All started giving abuses. I restrained them not to abuse. Due to fear I was going inside my house and my wife Bhanwarpati was close to the door. Then Nihal fired a gunshot which abrasing my left armpit and rib, had hit my wife Bhanwarpati at the chest. My wife died at the spot. Hearing noise of gunshots and the cries my brother Mangilal and nephew Ramlakhan came to the spot running. Seeing them, Nihal went to the roof of my house. My brother caught hold of Nihal. Nihal in order to commit murder, fired another shot at my brother Mangilal. Thereafter scuffle ensued and accused alighted from the roof and ran towards the jungle. I have brought dead body of my wife to police station. I am presenting report. Legal action be taken." 3. A perusal of the above written report reveals that all the shots have been fired by Nihal. Though it is stated that other accused also were armed with guns, no overt role is attributed to the present two appellants. 4. Learned counsel for the appellants had filed an application u/sec. 391 Cr.P.C. for placing on record subsequent judgment whereby principal accused Nihal was tried and acquitted. Said application was allowed by the coordinate Bench. A perusal of the judgment rendered by the Trial Court subsequent to the conviction of the present appellants reveals that Nihal was acquitted by the Trial Court primarily for the reason that witnesses to the present case have not deposed against Nihal. They turned hostile to the prosecution and deposed that the accused were having muffled faces, hence they had not seen them. 5. Mr. Ashwin Garg, learned counsel for the appellants, has contended that since the principal accused has been acquitted u/sec. 149 IPC cannot be applied qua the appellants. 6. We are unable to accept this argument. Any subsequent event or deposition of the witnesses cannot be taken into consideration. As per sec. 145 of the Indian Evidence Act, only previous statement made by the witness can be used to confront the witness. The subsequent statement made by the witness is not admissible in evidence. 6. We are unable to accept this argument. Any subsequent event or deposition of the witnesses cannot be taken into consideration. As per sec. 145 of the Indian Evidence Act, only previous statement made by the witness can be used to confront the witness. The subsequent statement made by the witness is not admissible in evidence. Hence we shall proceed to do appraisal of the evidence led in the present case without taking into consideration subsequent statement of the witnesses before the Trial Court on oath or judgment where the witnesses have not named the present appellants or principal accused Nihal. 7. As is evident in the present occurrence Bhanwarpati, wife of complainant Gunna Meena (P.W. 2) had died and Gunna Meena (P.W. 2) had received an injury. Even though it is stated in the FIR that Nihal had fired a shot at Mangilal, Mangilal received no injury in the occurrence. We need not refer to the medical evidence as it is not disputed by learned counsel for the appellants that Bhanwarpati had died due to receipt of gunshot injury and Gunna Meena (P.W. 2) had also received one injury on the chest due to firing of gun. Admittedly, injury received by Bhanwarpati leading to her death and injury suffered by Gunna Meena (P.W. 2) are attributed to Nihal, principal accused, who absconded and has later been acquitted in subsequent trial because witnesses had turned hostile to the prosecution. As per the FIR both the appellants have not played any overt role in the occurrence. 8. Gunna Meena (P.W. 2) in the Court stated that the appellants were armed with gun and they fired the shots but he specifically stated that shot fired by Nihal had hit him and his wife. Admittedly, alleged shots fired by the appellants have caused no injury in the occurrence. 9. Learned counsel for the appellants has drawn our attention to the testimony on Mangilal (P.W. 3) brother of Gunna Meena (P.W. 2). As per Gunna Meena (P.W. 2) Mangilal had gone on the roof and had a scuffle with Nihal, principal accused, acquitted later. Mangilal appeared in the Court as P.W. 3 and has reiterated as to what was stated by Gunna Meena (P.W. 2). However, in cross-examination, this witness admitted that it was wrongly recorded in his police statement (Ex. D. 2) recorded u/sec. 161 Cr.P.C. that other accused were empty handed. Mangilal appeared in the Court as P.W. 3 and has reiterated as to what was stated by Gunna Meena (P.W. 2). However, in cross-examination, this witness admitted that it was wrongly recorded in his police statement (Ex. D. 2) recorded u/sec. 161 Cr.P.C. that other accused were empty handed. We reproduce the following portion of his cross-examination as under:- ^^iqfyl c;ku bZ,Dl Mh&2 dk Hkkx , ls ch eqyfteku dk [kkyh gkFk gksuk xyr fy[kk gS eSusa rks lc ij cUnwds gksuk fy[kk;k FkkA^^ 10. The witness in further cross-examination also admitted that even though he had stated that the present appellants were armed with gun but as to why the same was not stated in his police statement, the witness could not offer any explanation. We reproduce the following portion from the cross-examination of Mangilal (P.W. 3):- ^^ukjk;u flag] f'koflag o jkethyky ij cUnwds Fkh ;g ckr eSusa iqfyl dks crk;h Fkh ysfdu iqfyl c;ku bZ,DlMh&2 esa D;kasa ugh fy[kh eS ugha dg ldrk gwA^^ 11. Ramlakhan (P.W. 4) S/o. Mangilal (P.W. 3), another eyewitness, in his cross-examination also admitted that even though he stated to the police that other accused also fired shots, but as to why the same was not recorded in his police statement (Ex. D. 3), he could not offer any explanation. The witness stated in Court as under:- ^^tc firkth Nr ij p<+s mlls igys Nr ls xksyh py jgh Fkh ;g ckr eSusa iqfyl dks fy[kk;h Fkh ysfdu iqfyl c;ku bZ,DlMh&3 esa ;g ckr D;ksa ugh fy[kh irk ugha gSA uhps ls vkSj yksxks us esjs firkth ij xksyh pyk;h ;g ckr eSusa iqfyl dks crk;h Fkh ysfdu ;g ckr iqfyl c;ku bZ,Dl Mh&3 esa D;ks ugha fy[kh gS irk ugha gSA uhps ls dqN yksxks us dgk fugky dks NksM+ nks ugha rks xksyh ekj nsaxs ;g ckr eSus iqfyl dks crk;h Fkh ysfdu iqfyl c;ku esa D;ksa ugha fy[kk irk ugha gSA^^ 12. Having heard Mr. Ashwin Garg, learned counsel for the appellants and Mr. Having heard Mr. Ashwin Garg, learned counsel for the appellants and Mr. Aladeen Khan, learned Public Prosecutor, we are of the firm view that since in FIR and in the statement of witness Gunna Meena (P.W. 2), his brother Mangilal (P.W. 3) and his son Ramlakhan (P.W. 4) in Court it is stated that present appellants have also fired shots, but since appellants have not caused any injury and no specific role is attributed to them, we shall lay great emphasis on statements of Mangilal (P.W. 3) and Ramlakhan (P.W. 4), Ex. D-2 and D-3 respectively to hold that appellants are victim of over implication. It is admitted case of prosecution that Nihal only had caused injury to Gunna Meena (P.W. 2) and Bhanwarpati, deceased. So far the appellants are concerned, no injury is attributed to them and they have not played any specific role in the occurrence. As per the witnesses they were only standing at the place of occurrence along with Nihal, armed with guns and had fired shots, however, the shots fired by them did not hit anybody. 13. We cannot accept the assertion of the witnesses as gospel truth as both Mangilal (P.W. 3) and Ramlakhan (P.W. 4) have been confronted with their police statements where it is not stated that appellants were armed with a weapon or had fired a shot in the occurrence. 14. In the present case, occurrence took place on 3.11.2003 at 10:00 P.M. Written report was presented by Gunna Meena (P.W. 2) on 3.11.2003 at 11:30 P.M. Special report in the present case reached Ilaka Magistrate on 4.11.2003 at 04:49 P.M. Apparently there was a delay in reaching of the special report. 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, Supreme Court has observed as under:- "6. This Court in Meharaj Singh (L/Nk.) vs. 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.) vs. 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 D.B. Cr. Appeal No. 25/2006 12/20 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 Cr.P.C. 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 Cr.P.C. is shown to have been received by the Magistrate on 27-8-1991. (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 Cr.P.C. 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 Cr.P.C., 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 Cr.P.C. 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 D.B. Cr. Appeal No. 25/2006 13/20 existing between the complainant and the accused party. There is some substance in such a submission." 15. Considering the delay in reaching of the special report we are of the view that it cannot be ruled out that the complainant party has inflated the number of accused, and the appellants are victim of over implication. Since in the occurrence Gunna Meena (P.W. 2) and his wife Bhanwarpati had received injuries only due to the one shot fired by Nihal, as a matter of abundant caution we shall extend benefit of doubt to the present appellants, taking into consideration the facts and circumstances enumerated by us above. 16. As a result of the above discussion, the present appeal is accepted. 16. As a result of the above discussion, the present appeal is accepted. Conviction pronounced and sentences recorded qua the appellants by the Trial Court are set aside they are acquitted of the charges by extending benefit of doubt.