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2017 DIGILAW 1191 (ALL)

GANGA RAM v. STATE OF U. P.

2017-05-04

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : Hon'ble Bala Krishna Narayana, J. Hon'ble Arvind Kumar Mishra-I, J. The arguments of this case concluded on 04.05.2017. We then made the following order:- 1. Heard Sri Ajay Tiwari, learned Advocate holding brief of Sri Sangam Lal Kesarwani, learned counsel for the appellants, Sri Sagir Ahmad, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. assisted by Smt. Manju Thakur, brief holder for the State. 2. We will give reasons later. But we pronounce the operative portion here and now. 3. This criminal appeal is allowed. The impugned judgment and order dated 24.3.1989 passed by VII Additional District and Sessions Judge, Kanpur Dehat in S.T. No. 170 of 1985 (State vs. Ganga Ram and Others) convicting and sentencing the appellants under Section 302 I.P.C. P.S. Ghatampur, district-Kanpur Dehat to undergo life imprisonment is hereby set aside. 4. The appellants are acquitted of all the charges framed against them. 5. Appellants are on bail, they need not surrender. Their bail bonds are cancelled and their sureties discharged subject to their complying with section 430 Cr.P.C. 6. There shall be however no order as to costs. 7. Here are the reasons:- This criminal appeal has been preferred by appellants Ganga Ram, Munni Lal, Ram Swarup and Prabhu Ram against the judgment and order dated 24.03.1989 passed by VIIth Additional Sessions Judge, Kanpur Dehat in S.T. No. 170 of 1985 by which the appellants have been convicted and sentenced to imprisonment for life under Section 302 IPC. 8. Briefly stated the facts of this case are that on 07.05.1985 Atibal Singh son of Girja Nandan Singh, resident of Tilsada, P.S. Ghatampur, District Kanpur Dehat gave a written report Ext.Ka-27 at P.S. Ghatampur alleging therein that he was a resident of village Tilsada. In the last winter someone had demolished the 'medh' of his agricultural field which had resulted in the same getting inundated with water and when he tried to divert the water which had inundated his field into the adjoining channel, his co-villagers Ganga Kanchi etc. objected as a result there was a dispute and they had threatened the informant with dire consequences and ever since then they had stopped talking to the informant and harbouring animosity towards him. objected as a result there was a dispute and they had threatened the informant with dire consequences and ever since then they had stopped talking to the informant and harbouring animosity towards him. On 06.05.1985 Gurubux Singh and Harbux Singh sons of the informant went to the house of the Ganga Kanchi to hire his tractor for cultivating his field but Ganga Kanchi and told him that he would be paid his remuneration but he refused to come with them on which they told him that they would take him along with his tractor forcibly on which Gang Kanchi agreed to accompany his sons but threatened to settle his score with them later. Thereafter Ganga Ram son of Surajbali and Munnilal son of Shivram came with their tractor to the informant's field and started cultivating the same in the presence of his sons Gurubux Singh and Harbux Singh. Ganga Ram sent Gurubux Singh to the village for procuring some part of the tractor which had developed some defect in the presence of Sefal Dhobi. At about 10.00 p.m. Surajpal son of Jagdev Singh, Chandra Pal son of Chhakki Singh and Rajpal son of Nanhe Singh came to the informant's field from their thresher for drinking water and exactly at that time Ram Swarup son of Nanku armed with farsa and Prabhu son of Mahipal armed with tabbal also reached there from the side of Dhokalpur and exhorted Ganga to finish the work and all four of them, namely, Ganga, Ram Swarup, Prabhu and Munni advanced towards Harbux and started beating him on which the informant and his companions challenged them but Harbux fell on the ground. Ganga Ram and Munnilal had barchi and lathi in their hands. After assaulting Harbux they shouted that Gurubux must be returning from the village and he should also be finished of and thereafter they started walking towards the village followed by the informant and the witnesses and as soon as they reached near the peepal tree in the field of Surjan Kori the accused-appellants met Gurbux and after committing his murder they ran away towards the village. Due to darkness and fear the informant did not inform the police promptly. In the morning, leaving the dead bodies in the custody of the villagers he went to the police station to lodge the FIR of the incident which was scribed by Dinesh Chandra Dwivedi. Due to darkness and fear the informant did not inform the police promptly. In the morning, leaving the dead bodies in the custody of the villagers he went to the police station to lodge the FIR of the incident which was scribed by Dinesh Chandra Dwivedi. On the basis of the written complaint of the occurrence given by him at police station Ghatampur on 07.05.1985 at about 09.30. a.m., case crime no. 152 of 1985 under Section 302 IPC was registered against the appellants Ext.Ka-27, check FIR Ext.Ka-25 and relevant G.D. entry Ext.Ka-26 were prepared by PW-8 Head Constable Khemraj Singh. The investigation of the case was entrusted to PW-6 S.I.-Madhav Singh who visited the place of occurrence and after holding the inquest on the dead bodies of Gurubux and Harbus prepared their inquest reports Ext.Ka-3 and Ext.Ka-9 and other related papers Ext.Ka-4 to Ext.Ka-8 and Ext.Ka-10 to Ext.Ka-14. He also inspected the places of occurrence and prepared the site plans of the same Ext.Ka-15 and Ext.Ka-16. He also seized plain and blood stained earth, a packet of beedi and a scarf lying near the dead body of Gurubux Singh and the tractor trolley from the place of incident and prepared the recovery memos of the aforesaid articles Ext.Ka-15, Ext.Ka-16, Ext.Ka-17, Ext.ka-18, Ext.Ka-21 and Ext.Ka-22. 9. Thereafter he got both the dead bodies sealed and dispatched the same for conducting post mortem to the District Hospital, Kanpur Dehat. 10. The post mortem on the dead body of Gurubux Singh was conducted by PW-1 Dr. Sharad Mehrotra on 08.05.1985 at about 1.45 p.m.. He also prepared his post mortem report, which is on record as Ext.Ka-1. 11. The post mortem on the dead body of Harbux was also conducted by PW-1 Dr. Sharad Mehrotra on 08.05.1985 at about 1.00 p.m. He also prepared his post mortem report, which is on record as Ext.Ka-2. 12. The post mortem report of deceased Gurubux Singh which was prepared by PW-1 Dr. Sharad Mehrotra indicated following ante mortem injuries on his dead body :- "1. Lacerated 5 cm x 2 cm x bone cut right side skull, 9 cm above right ear. 2. Multiple incised wound left side face and front neck 17 cm x 13 cm ........ bone cut, transverse direction, carotid vessels cut, II, III, IV, V cervical vertebrae cut. 3. Lacerated 5 cm x 2 cm x bone cut right side skull, 9 cm above right ear. 2. Multiple incised wound left side face and front neck 17 cm x 13 cm ........ bone cut, transverse direction, carotid vessels cut, II, III, IV, V cervical vertebrae cut. 3. Incised wound 5 cm x 1-1/2 cm x 1-1/2 cm on left shoulder oblique. 4. Incised wound 1 cm x 1 cm x ½ cm on back of left arm, 4 cm above elbow joint. 5. Multiple incised wound 13 cm x 3 cm bone cut on the left hand. 6. Incised wound 8 cm x 3 cm x 4 cm on left scapular region oblique. 7. Incised wound 1-1/2 cm x ½ cm x ½ cm, 3-1/2 cm below the injury no. 5 on the left shoulder. 8. Contusion 10 cm x 6 cm on back of rt. elbow joint." 13. According to him death was caused due to shock and hemorrhage as a result of ante mortem injuries. The time of death was estimated to be about 1-1/2 day. 14. The post mortem report of deceased Harbux Singh which was prepared by PW-1 Dr. Sharad Mehrotra indicated following ante mortem injuries on his dead body:- "1. Incised wound 9-1/2 cm x 1-1/2 cm x bone deep on forehead above top of nose. 2. Incised wound 20 cm x 5 cm x bone deep on the right side neck, incised oesophagus trachea and carotid blood vessel and third spine. 3. Incised wound 3-1/2 cm x 1 cm x 3 cm on right shoulder. 4. Incised wound 2 cm x ½ cm. Incised wound 2 cm x ½ cm x 2 cm, ½ cm below injury no.2. 5. Incised wound 2 cm x 1 cm x 2 cm, 1 cm from injury no.4 on right shoulder, inverted. 6. Incised wound 2 cm x 1 cm x 2 cm, 2 cm below injury no.5 on right shoulder. 7. Incised wound 4 cm x 1 cm x bone deep on base of ring finger of the left hand and front side reverse. 8. Incised wound 2 cm x 1 cm x 3 cm on left leg calf muscle; 9 cm below left knee joint." 15. According to him death was caused due to shock and hemorrhage as a result of ante mortem injuries. The time of death was estimated to be about 1-1/2 day. 8. Incised wound 2 cm x 1 cm x 3 cm on left leg calf muscle; 9 cm below left knee joint." 15. According to him death was caused due to shock and hemorrhage as a result of ante mortem injuries. The time of death was estimated to be about 1-1/2 day. 16. Documents pertaining to the attachment of the properties of A-2 Ram Swarup and A-3 Munnilal for securing their presence before the Investigating Officer during the investigation were brought on record as Ext.Ka-22 and Ext.Ka-23. 17. The investigating officer after completing the investigation submitted charge sheet against all the accused under Section 302 IPC before C.J.M., Kanpur Dehat Ext.Ka-23. 18. Since the offence mentioned in the charge sheet was triable exclusively by court of Sessions, C.M.M., Kanpur Dehat committed the case for the trial of the accused to the court of Sessions Judge, Kanpur Dehat, where it was registered as S.T. No. 170 of 1985 and made over for trial to the court of VIIth Additional District & Sessions Judge, Kanpur Dehat, who on the basis of the material on record and after hearing the prosecution and the accused on the point of charge framed charge against the accused appellants under Section 302 IPC. The accused appellants abjured the charge and claimed trial. 19. The prosecution in order to prove its case against accused appellants examined as many as 9 witnesses of whom PW-2 Atibal Singh informant, PW-3 Chandra Pal Singh, PW-4 Raksha Pal Singh, PW-5 Surya Pal Singh and PW-7 Dinesh Chandra Dwivedi (scribed of the FIR) were examined as witnesses of fact while PW-1 Dr. Sharad Mehrotra, PW-6 S.I. - Madhav Singh, Investigating Officer of this case, PW-8 Constable Khemraj Singh and PW-9 Badlu Chaukidar of the village were produced as formal witnesses. 20. PW-1 Dr. Sharad Mehrotra who had conducted the post mortem on the dead bodies of Gurubux and Harbux and prepared their post mortem reports Ext. Ka-1 and Ext.Ka-2, in his evidence tendered during the trial proved the post mortem reports of the deceased Ext.Ka-1 and Ext.Ka-2 and further deposed that it was possible that both the deceased had died on 06.05.1985 at about 10.00 p.m.. He also deposed that the injury nos.1 and 8 found on the dead body of Gurubux could be caused by lathi whereas injuries no. He also deposed that the injury nos.1 and 8 found on the dead body of Gurubux could be caused by lathi whereas injuries no. 2 to 6 could be caused by sharp edge weapons, namely, tabbal, farsa and barchi. Qua the deceased Harbux he deposed that all the injuries found on his dead body except injury nos. 1 and 8 were caused by sharp edged weapon. He further deposed that neither any punctured wound nor any wound which could be caused by barchi was found by him on the dead body of Gurubux and the possibility of the injury no.8 being caused on account of the deceased falling on a hard surface and injury no.1 being caused as a result of the deceased colliding with a hard object could not be ruled out. He also deposed that it was possible that the injuries received by deceased Gurubux and Harbux were inflicted on them between 1 a.m. and 2 a.m. 21. PW-2 informant Atibal Singh died during the trial and neither his examination in chief could be completed nor he was crossed examined by the defense. 22. PW-3 Chandra Pal Singh in his evidence tendered during the trial supported the prosecution story as spelt out in the FIR. 23. Although PW-4 Rakhsa Pal Singh and PW-5 Surya Pal Singh were produced and examined by the prosecution as eye witness of the occurrence but they in their examination-in-chief denied having any knowledge about the identity of the persons who had committed the double murder. As a result on the request of the learned D.G.C. (Criminal) they were declared hostile. 24. PW-6 S.I. - Madhav Singh who had conducted the investigation and submitted charge sheet against the accused appellants, in his evidence recorded before the trial court disclosed the various steps taken by him during the investigation and further deposed that he had prepared the inquest reports of the deceased and proved the same and other related documents as Ext. Ka-3 to Ext.Ka-14. He also proved the site plans of the two places of occurrence Ext.Ka-15 and Ext.Ka-16, recovery memos of plain and blood stained earth, seizure/recovery memo of deceased's scarf and tractor trolly Ext.Ka-17 to Ext.Ka-20 and the charge sheet Ext.Ka23. 25. Ka-3 to Ext.Ka-14. He also proved the site plans of the two places of occurrence Ext.Ka-15 and Ext.Ka-16, recovery memos of plain and blood stained earth, seizure/recovery memo of deceased's scarf and tractor trolly Ext.Ka-17 to Ext.Ka-20 and the charge sheet Ext.Ka23. 25. PW-7 Dinesh Chandra Dwivedi, who had scribed the FIR proved the photostat copy of the written complaint of the occurrence Ext.Ka=27 and deposed that Ext.Ka-27 was written by him on the dictation of Atibal Singh and signed by him. 26. PW-8 Khemraj Singh proved the check FIR Ext.Ka-24 and G.D. entry Ext.Ka-26. 27. PW-9 Badlu Chaukidar of the village deposed that he had carried the dead bodies of the Gurubux and Harbux from the place of occurrence to the mortuary of the District Hospital, Kanpur Dehat. 28. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as concocted and the evidence produced against them as false and fabricated and they alleged false implication due to village politics. 29. The accused appellant filed a photostat copy of judgment of the Sessions Judge rendered in S.T. No. 187 of 1978 (State vs. Santosh Kumar and Others) as Ext.Ka-1 for proving that deceased Gurubux had been convicted and awarded life sentence under Section 302 IPC. The accused did not examine any witness in defense. 30. Learned VIIth Additional District & Sessions Judge, Kanpur Dehat after considering the submissions made by the learned counsel for the parties before him and scrutinizing the evidence on record, convicted all the accused-appellants and awarded aforesaid sentences. 31. Hence this appeal. 32. Learned counsel for the appellants submitted that the FIR in this case is ante timed. 33. It has also been submitted by the learned counsel for the appellant that the incident had taken place in the intervening night of 6/7.08.1985 and although no-one had seen the occurrence but after the dead bodies of Harbux and Gurubux were found in the morning, the written report of the incident was prepared by PW-2 Atibal Singh, father of the deceased after due deliberations and consultations falsely implicating the accused appellants due to admitted previous enmity between the informant and the accused-appellants. The inordinate delay of more than 11-1/2 hours in lodging the FIR of the occurrence in itself indicates that the delay was utilized by the informant for concocting a false story indicting the accused-appellants. The inordinate delay of more than 11-1/2 hours in lodging the FIR of the occurrence in itself indicates that the delay was utilized by the informant for concocting a false story indicting the accused-appellants. Vague explanation given by the informant in the written complaint of the occurrence for his having not lodged the FIR promptly is thoroughly unsatisfactory. The FIR as a result of the delay lost its spontaneity rendering narration of the incident recorded therein wholly doubtful and untrustworthy. He further submitted that the informant's claim that the accused-appellants first committed the murder of Harbux in the presence of the informant and other witnesses and they then proceeded to search Gurubux followed by the informant and the witnesses and committed the murder of Gurubux also near the peepal tree in the field of Suraj Kori in full view of the informant and other witnesses and then escaped towards the village is highly improbable and totally unreliable. The failure of the informant and the other witnesses, who claim themselves to be present at the place of occurrence to make any effort to save the victims from the alleged assault made on them by the accused-appellants and their remaining meek spectators to the gruesome happenings around them and then waiting for more than 11-1/2 hours to inform the police about the occurrence is not at all in consonance with the normal human conduct under the given circumstances and which creates a very serious doubt about the genuineness of their claim of their being the eye witnesses of the occurrence. He next submitted that the recorded conviction of the appellants and the sentence of life imprisonment awarded to them by the trial court on the basis of uncorroborated testimony of the so called solitary eye witness of the occurrence PW-3 Chandra Pal Singh, who is not only a close relative of the deceased Gurubux and Harbux but whose presence at the time and place of the incident extremely doubtful cannot be sustained. He next submitted that medical evidence does not corroborate the ocular version. 34. He lastly submitted that such being the state of evidence on record neither the recorded conviction of the appellants nor the sentence awarded to him can be sustained and are liable to be set aside. 35. He next submitted that medical evidence does not corroborate the ocular version. 34. He lastly submitted that such being the state of evidence on record neither the recorded conviction of the appellants nor the sentence awarded to him can be sustained and are liable to be set aside. 35. Per contra Sri J.K. Upadhyay learned AGA appearing for the State submitted that it is fully proved from evidence of PW-3 Chandra Pal whose presence at the time and place of the occurrence is fully established that Harbux and Gurbux were killed by the accused appellants at about 10 p.m. on 06.05.1985. He next submitted that it is settled law that a conviction can be based on the uncorroborated evidence of a solitary witness provided he is found to be a fully reliable witness. There is no evidence on record that the FIR in this case is ante timed. There is no conflict between the ocular version and the medical evidence on record. The prosecution has fully succeeded in proving by cogent evidence that the accused-appellants had committed the offence. This appeal lacks merit and is liable to be dismissed. 36. We have very carefully considered the submissions made by learned counsel for the appellants and learned AGA for the State, perused the record of this case as well as the law reports cited by the learned counsel for the parties. 37. Record of this case shows that the accused appellants were tried and convicted by the learned VIIth Additional District & Sessions Judge, Kanpur Dehat for having committed the murder of Gurubux Singh and Harbux Singh sons of PW-2 Atibal Singh informant by assaulting them with farsa, tabbal, barchi and lathis at about 1.00 a.m. on 07.05.1985. The murder of Harbux Singh was committed by them in the field of the informant while Gurubux Singh was murdered by them near the peepal tree in the field of Surjan Kori. The FIR of the incident was lodged on the next day i.e. on 07.05.1985 at about 9.30 a.m. at P.S. Ghatampur, District Kanpur Dehat. Distance between the police station and the place of occurrence as recorded in the check FIR is about 8 kms. The FIR of the incident was lodged on the next day i.e. on 07.05.1985 at about 9.30 a.m. at P.S. Ghatampur, District Kanpur Dehat. Distance between the police station and the place of occurrence as recorded in the check FIR is about 8 kms. The inquest on the dead body of the Gurubux Singh commenced on 17.05.1985 at about 12.13 hours and concluded at 14.15 hours while the inquest on the dead body of the Harbux Singh started at 14.45 hours and was completed at 16 hours on the same day. The aforesaid facts are evident from the inquest reports of the deceased which have been brought on record as Ext. Ka-3 and Ext.Ka-9 and proved by PW-6 S.I.- Madhav Singh. The post mortems on the dead bodies of Gurubux Singh and Harbux Singh were conducted at 1.00 p.m. and 1.15 p.m. by PW-1 Dr. Sharad Mehrotra. Their post mortem reports have been brought on record as Ext.Ka-1 and Ext.Ka-2. 38. The first question which arises for our consideration is that whether the FIR in this case is ante timed. It is noteworthy that the PW-2 Atibal Singh who had lodged written complaint of the occurrence died after partial recording of his examination-in- chief. The scribe of the FIR PW-7 Dinesh Chandra Dwivedi has in his evidence not disclosed the time at which he had scribed the written report of the occurrence Ext.Ka-27 on the dictation of PW-2 Atibal Singh. He however proved the signature of the Atibal Singh on the photostat copy of the written report Ext.Ka-27. 39. PW-8 Constable Khemraj Singh who was posted as Constable Moharrir at P.S. Ghatampur had prepared the check FIR and necessary G.D. entry proved the same as Ext.Ka-25 and Ext.Ka-26. He also deposed that check FIR Ext.Ka-25 was a verbatim reproduction of the recitals contained in the photostat copy of the written complaint and that he had recorded entry in G.D. vide Rapat No.13 at 9.30 a.m. on 07.05.1985. In his cross examination PW-8 deposed that on 07.05.1985 prior to the registration of the FIR of the incident and till 11.00 a.m. no other case was registered. In his cross examination PW-8 deposed that on 07.05.1985 prior to the registration of the FIR of the incident and till 11.00 a.m. no other case was registered. He denied the suggestion given to him by the defense counsel that the FIR of the case was registered when the Investigating Officer had returned to the police station after visiting the place of occurrence and the written report, photostat copy whereof was brought on record was prepared in his presence at the police station. No suggestion was given by the defense to PW-8 that the FIR was not registered at the time mentioned in the check FIR. Thus we do not find that the FIR in this case is ante timed. 40. The next question which arises for our consideration is that whether the prosecution case is liable to be thrown out as false and concocted merely on the ground of there being an inordinate delay of about 11-1/2 hours on the part of the informant in lodging the FIR although the distance between the place of occurrence and the police station is only 8 kms. and the explanation furnished by the informant for the delay in lodging the FIR being thoroughly dissatisfactory. 41. Before proceeding to scrutinize the oral evidence lead by the prosecution for deciding the aforesaid issue, we consider it proper to examine the case law on the aforesaid issue. 42. The Apex Court in the case of Apren Joseph alias Current Kunjukunju and Others vs. State of Kerala, AIR 1973 SC 1 , has observed as hereunder:- "Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained." 43. Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and Another vs. State of Punjab, AIR 2001 SC 3576 , is reproduced herein below:- "The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and Another vs. State of Punjab, AIR 2001 SC 3576 , is reproduced herein below:- "The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein." 44. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. 45. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. 45. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs. State of U.P. 1991 Suppl. (1) SCC 372; Tara Singh vs. State of Punjab, 1991 Suppl. (1) SCC 536; Jamna vs. State of U.P. 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: "It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report." 46. The Apex Court in Tara Singh and Others vs. State of Punjab, AIR 1991 SC 63 , the Apex Court in paragraph 4 of its judgment has observed as hereunder:- "4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the" report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned Counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by P.W.2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. In the report given by P.W.2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 P.M. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 A.M. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross- examination. There are no material contradictions or omissions which in any manner throw a doubt on their varasity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific over tacts arc attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed." 47. In State of Himachal Pradesh vs. Gian Chand, AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:- "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." 48. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." 48. Thus the legal position which emerges upon going through the catena of judgments of the Apex Court on the issue, referred to herein above, is that it is settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of the case delay in lodging the FIR can be one of the factors which may corrode the credibility of the prosecution version but delay in lodging the FIR cannot be a ground itself for throwing away the entire prosecution version as given in the FIR and later substantiated by the evidence, unless there are indications of fabrication. The Court has further to seek explanation for delay and check the truthfulness of the version to inquire and if the court is satisfied then the case of prosecution cannot fall on this ground alone. 49. We now proceed to examine the aforesaid question on the touch stone of the principle enunciated by the Apex Court in catena of its decisions and in the light of the evidence on record. 50. Admittedly the occurrence had taken place at about 10.00 a.m. in village Tilsada. The FIR of the incident was lodged on the next day at about 9.30 a.m. The distance between the place of incident and the police station is 8 km. as is evident from the check FIR Ext.Ka-21. The only explanation given in the written complaint of the occurrence Ext.Ka-27, which was scribed by PW-7 Dinesh Chandra Dwivedi on the dictation of PW-2 informant Atibal Singh is that due to darkness and fear he did not go to the police station on the same day. Unfortunately after recording three or four sentences of examination-in-chief of PW-2 informant Atibal Singh in which he had not stated anything material recording of his examination-in-chief was deferred but the same could not be completed as he died few days thereafter. Unfortunately after recording three or four sentences of examination-in-chief of PW-2 informant Atibal Singh in which he had not stated anything material recording of his examination-in-chief was deferred but the same could not be completed as he died few days thereafter. Even if we assume for the sake of argument that the explanation given in the FIR by PW-2 informant Atibal Singh for not lodging the FIR immediately after the occurrence is satisfactory, the same in our opinion will hold good only till the day break. The double murder had taken place during the summers. In the month of May there is sufficient light by 5 a.m. There is neither any reason nor any explanation for the informant having not left the place of occurrence for the police station to lodge the FIR even after the day break and reached the police station at 9.30 a.m. and then lodged the written complaint of the occurrence. There is also no mention either in the partial examination-in-chief of PW-2 Atibal Singh or in the evidence of any other witnesses as to how PW-1 Atibal Singh had gone from his village to the police station, whether on foot or by some vehicle. PW-3 Chandra Pal although claims himself to be the eye witness of the incident but even he in his examination-in-chief has neither disclosed the time at which the written report of the occurrence was scribed by PW-7 Dinesh Chandra Dwivedi on the dictation of PW-2 Atibal Singh nor the time at which he had left for the police station. However, he in his cross examination on page 53 of the paper book has deposed that he along with Atibal had left for the police station at about 6.00 - 7.00 p.m. and the written complaint of the occurrence was scribed after they had returned from the police station. 51. However, he in his cross examination on page 53 of the paper book has deposed that he along with Atibal had left for the police station at about 6.00 - 7.00 p.m. and the written complaint of the occurrence was scribed after they had returned from the police station. 51. Thus what transpires from the reading the evidence of PW-3 Chandra Pal Singh is that the prosecution has failed to come up with any satisfactory explanation for the inordinate delay of about 11-1/2 hours in lodging the FIR of the incident and that after the incident had been reported to the police station Ghatampur, police had visited the place of occurrence and thereafter the written report of the incident was scribed and hence under the aforesaid circumstances it is obvious that the report of the incident was scribed on the advise of and with the interference of the police personnel who had arrived at the place of incident before the lodging of the FIR upon receiving the information of the double murder. The original written complaint of the occurrence has not been brought on record. Only a photostat copy of the written report was filed and proved as Ext.Ka-27. No explanation has come forth from the prosecution for not filing the original written complaint of the occurrence before the trial court. The aforesaid omission on the part of the prosecution which hints at manipulation dents the authenticity of the FIR version. Thus in view of the above the credibility of the FIR in this case stands totally shattered. The possibility of delay of 11-1/2 hours in the lodging of the FIR having been utilized by the informant for concocting a false story implicating the accused-appellants and introducing a coloured version as a result of deliberation and consultation cannot be ruled out. 52. We now proceed to examine whether the conviction of the accused-appellants recorded by the trial court on the basis of uncorroborated testimony of the solitary witness PW-3 Chandra Pal Singh who is admittedly a close relative of the deceased and the informant can be maintained. 53. There is no dispute with the settled legal proposition that the conviction can be based on the evidence of a solitary witness provided he is found to be wholly reliable and his evidence unimpeachable. 53. There is no dispute with the settled legal proposition that the conviction can be based on the evidence of a solitary witness provided he is found to be wholly reliable and his evidence unimpeachable. Where the solitary witness appears to the court to be partially reliable then as a rule of prudent the court will look for corroboration. In the present case although the prosecution had examined four witness of fact including PW-3 Chandra Pal Singh but the recording of evidence of PW-1 Atibal Singh could not be completed as he died during the trial while PW-4 and PW-5 failed to support the prosecution case and were declared hostile on the request of DGC (Criminal) who had cross examined them with the permission of the court at great length but he could not elicit anything out from them which can be said to even remotely support the prosecution case. 54. PW-3 Chandra Pal Singh has admitted in his examination-in-chief on page 48 of the paper book that Atibal Singh was his khandani uncle and hence he was a relative of the deceased. 55. The question which arises is whether the presence of P W-3 Chandra Pal Singh at the place of occurrence at 10.00 a.m. on 07.05.1985 who is a chance witness has been satisfactorily proved and explained. The reason given by PW-3 in his examination-in-chief for his presence at the time and place of the occurrence is that on the date of the incident he had gone to the field of the Atibal Singh at about 10.00 a.m. where a tube well is installed for quenching his thirst. He was accompanied by Suraj Pal and Raksha Pal Singh (neither the Suraj Pal nor Raksha Pal have been examined by the prosecution) and while he and his companions were talking to Atibal Singh and the appellants Ganga Ram and Munni Lal were cultivating the informant's field with their tractor, Prabhu Ram armed with farsa, Ram Swarup armed with tabbal also arrived at the field of informant and exhorted Ganga to finish Harbux. The exhortation were repeated by appellant Ganga Ram and Munnilal who had lathis in their hands and thereafter all four if them assaulted Harbux with their weapons who fell on the ground and died on the spot and thereafter they proceeded towards the village shouting that they were now going to finish Gurubux. The exhortation were repeated by appellant Ganga Ram and Munnilal who had lathis in their hands and thereafter all four if them assaulted Harbux with their weapons who fell on the ground and died on the spot and thereafter they proceeded towards the village shouting that they were now going to finish Gurubux. He and Atibal raised cries for help and started following the assailants who met Gurubux Singh under the peepal tree in the field of Atibal Singh and on meeting him they assaulted him also leaving him dead and thereafter they escaped towards village. On page 55 and 56 of the paper book PW-3 Chandra Pal Singh in his cross examination has admitted that his field is at a distance of about 400 yards from the field and tube well of Atibal Singh and he works in his field in the morning as well as in the night. The fields of Suraj and Raksha Pal were at a distance of about 200 yards from his field in west. During the day time his nephews used to arrange water from their house but he did not keep any pitcher in the field so at night he used to go and drink water from nearby tube wells. There were 4-6 tube wells from where water could be arranged and on page 59 of the paper book he has further categorically admitted that there is a tube well in his field and also in the field of Raksha Pal Singh. 56. Thus in view of the aforesaid admission made by PW-3 Chandra Pal Singh on page 59 of the paper book it is proved that there is a tube well in the field of PW-3 Chandra Pal Singh also. Hence there was no reason for him to have walked a distance of 400 yards at about 10.00 p.m. along with Raksha Pal, who also had a tube wells in his field and Surya Pal for quenching their thirst from the water of tube well of Atibal Singh when they could be easily drunk water from the tube well of PW-3 Chandra Pal Singh or from the tube well of Raksha Pal whose field was barely 200 yards away from the field of PW-3 Chandra Pal. Hence the reason given by PW-3 Chandra Pal Singh for his being present at the time and place of occurrence does not appear to be convincing or feasible at all. 57. Thus, we find that there was no reason for PW-3 to be present in the field of PW-1 Atibal Singh at the time of the incident and he appears to be a got up witnesses. It is true that merely because witnesses are related to the complainant or deceased, their evidence cannot be thrown out if their evidence is found to be consistent and true, the fact of their being relatives cannot by itself be a ground to discard their evidence but in the present case after evaluating the evidence of PW-3 Chandra Pal with utmost caution, we have found his presence at the time and place of occurrence highly doubtful and hence the possibility of his being tutored witness who had given false evidence against the accused appellant because of his relationship with the informant and the deceased cannot be ruled out and his evidence about the incident cannot be termed as convincing and trustworhty. 58. PW-3 Chandra Pal in our opinion does not fall in the category of a wholly reliable witness and we do not find it safe to uphold the conviction of the accused-appellants recorded by the learned trial court on the basis of the testimony of solitary eye witness PW-3 Chandra Pal Singh in the absence of any corroboration of the facts deposed by him in his evidence by any other witness Semphal Dhobi, Surya Pal and Raksha Pal who were nominated as eye witnesses by the informant in the FIR and who would have been the best persons to prove the presence of PW-3 Chandra Pal Singh at the time and place of occurrence were surprisingly withheld by the prosecution during the trial. In the absence of any reason forthcoming from the side of the prosecution for withholding the aforesaid three material witnesses Semphal Dhobi, Raksha Pal and Surya Pal, we are left with no option but to draw an adverse inference against the prosecution that in case Semphal Dhobi, Raksha Pal and Surya Pal were examined they would not have supported the prosecution case as spelt out in the FIR, as it is not the case of the prosecution that the aforesaid eye witnesses of the occurrence had been won over. 59. 59. The weapons allegedly used by the accused-appellants for committing the double murder were never recovered by the Investigating Officer. The prosecution case is that accused-appellants had assaulted the deceased with farsa, tabbal, lathi and barchi, however the medical evidence on record does not fully corroborate the ocular version. It has come in the evidence of PW-1 who had conducted the post mortem on the dead bodies of the Harbux and Gurubux that none of the injuries found on the dead body of Gurubux could be caused by barchi or lathi. Although PW-1 Dr. Sharad Mehrotra has in his examination in chief deposed that it was possible that the deceased had died at about 10.00 p.m. but he in his cross examination has admitted that the possibility of the injuries found on the dead body of Harbux and Gurubax being inflicted on them between 1.00 a.m. and 2.00 a.m. could not be ruled out, a fact which shrouds the time of incident mentioned in the FIR as 10.00 p.m. with suspicion. 60. Thus, after having carefully considered the submissions made by learned counsel for the parties and scrutinized the evidence on record and perused the law reports cited by learned counsel for the parties, we hold that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts and in view of the above neither the recorded conviction of the appellants under Section 302 IPC nor the sentence of life imprisonment awarded to them can be sustained. The impugned judgment and order are liable to be set aside. 61. These are the reasons upon which we set aside judgment and order.