JUDGMENT : Kanwaljit Singh Ahluwalia J. 1. Heera Singh son of Kishan Singh, by caste Gurjar on 09.04.1985 at around 07:30 A.M. in Village Helak, Police Station Kumher District Bharatpur was murdered as a result of gun shot injuries by an unlawful assembly, consisting of seven accused-persons, namely Bachchu son of Babu @ Babu Singh, Babu @ Babu Singh, Bheem and Narayan sons of Baljeet, Kedar son of Narayan, Siya @ Siyaram son of Narayan and Himmat @ Dhillu son of Bheem respectively. 2. In the alleged occurrence, Durag Singh (PW-4) and Ramkishan (PW-9) sustained simple injuries caused by blunt weapon also. 3. The above said seven accused-persons, in a case arising out of First Information Report bearing No.50/1985 registered at Police Station Kumher for offences punishable under Sections 147, 148, 149, 323 and 302 of the Indian Penal Code, were tried in Sessions Trial Case No. 21/1985, by the Court Additional District & Sessions Judge, No.1, Bharatpur. 4. The said Court, vide its impugned judgment dated 01.09.1988, acquitted all the accused of offences punishable under Sections 147 and 148 of the Indian Penal Code. The accused Bheem, Babu @ Babu Singh, Narayan, Siya @ Siyaram and Himmat @ Dhillu were acquitted of offence punishable under Section 302 read with Section 149 of the Indian Penal Code. However, the trial Court found Bheem, Narayan and Babu @ Babu Singh guilty of offence punishable under Section 323 of the Indian Penal Code and released them on probation for a period of six months for causing injuries to Durag Singh (PW-4) and Ramkishan (PW-9) respectively. 5. The present accused - Kedar was convicted for offence punishable under Section 302/34 of the Indian Penal Code and vide a separate order of even date, was sentenced to undergo life imprisonment. 6. During trial, the principal accused - Bachchu son of Babu @ Babu Singh died on 29.07.1998 and the trial Judge, after taking the Death Certificate on record on 06.09.1998 dropped the proceedings, qua him as having abated. 7. Instant appeal has been preferred by Kedar son of Narayan in order to assail the impugned judgment of conviction dated 01.09.1988 rendered by the Court of Additional District & Sessions Judge, No.1, Bharatpur, whereby the appellant was convicted for commission of offence punishable under Section 302/34 of the Indian Penal Code. 8. 7. Instant appeal has been preferred by Kedar son of Narayan in order to assail the impugned judgment of conviction dated 01.09.1988 rendered by the Court of Additional District & Sessions Judge, No.1, Bharatpur, whereby the appellant was convicted for commission of offence punishable under Section 302/34 of the Indian Penal Code. 8. In the appeal, so filed, it has also been prayed that the sentence awarded upon the appellant by the order of even date, be also set aside. 9. In the instant case, the criminal proceedings were set into motion on the basis of written-report (Exhibit-P/1) submitted by Papaiya Singh (PW-3) before Sonpal (PW-11), who on 09.04.1985 was In-charge of Police Station Kumher District Bharatpur. 10. A.S.I. Sonpal (PW-11) in the Court deposed that on 09.04.1985 at 09:00 A.M. he received a wireless information from Police Station Nadbai that one person has been murdered in Village Helak. Upon receipt of such information, he along with Ramsahai and Shivsingh, Constables reached at Village Helak and found that dead-body was lying in the field and the people had gathered there at the spot. Complainant - Papaiya Singh (PW-3) presented written-report (Exhibit-P/1) on the basis of which subsequently a formal First Information Report (Exhibit-P/20) bearing No.50/1985 was registered. 11. The said written-report (Exhibit-P/1), when translated into English reads as under :- “To, The In-charge Saheb, Police Station, Kumher Sir, It is submitted that today i.e. on 09.04.1985 at around 06:30 A.M. my brother - Heera from his house was going to Devnarain Temple, which is situated outside Village to hear the ‘bhajjans’. When my brother reached in the Village of Harisingh Gurjar then from the back side, Bachchu son of Babu, Babu, Narayan, Bheem sons of Baljeet, Kedar, Siya sons of Narayan and Himmat son of Bheem, by caste Gujar were running towards the Temple of Devnarain, situated at Village Helak. Bachchu was armed with twelve-bore gun. Bheem was armed with gun. Kedar was armed with country-made-pistol, whereas others were armed with lathies. They asked Heera where is enemy going, they warned him and said that today your time has come. My brother - Heera turned backwards and asked them as to what has happened and as to why you want to kill me then Narayan and Bachchu told that Bachchu, Kedar, and Bheem what are you seeing, fire gun shot. They asked Heera where is enemy going, they warned him and said that today your time has come. My brother - Heera turned backwards and asked them as to what has happened and as to why you want to kill me then Narayan and Bachchu told that Bachchu, Kedar, and Bheem what are you seeing, fire gun shot. Upon their saying so, Bachchu from a double-barrel-gun and Kedar from country-made-pistol fired shot upon my brother. After receipt of fire shots and pellets, my brother Heera fell at the spot. Seeing alleged occurrence, I raised noise and reached there running, Ballo Lambardar, Ranjeet, Shyam, Vanni son of Pees, Chandaro and other persons going from there have seen the alleged occurrence. In the morning, before occurrence at around 06:00 A.M., my sons Durg and Ramkishan were caused lathi injuries by above said persons. My brother Heera due to receipt of pellets has become unconscious. My brother died at spot due to receipt of gun shot. The above said persons with the common intention have opened the attack upon my brother and had killed him by firing a shot. I am presenting a report. The legal action be taken.” From the above written-report (Exhibit-P/1), following facts are discernible :- “A. The alleged occurrence has taken into two parts; earlier in the morning at 06:00 A.M. Durg Singh (PW-4) and Ramkishan (PW-9) were caused injuries with the blunt weapon by the accused. B. Later-on on 09.04.1985 at around 06:30 A.M. all accused came armed with weapon, out of which Bachchu was armed with double-barrel-gun, Bheem was armed with gun. Ramkishan was armed with single barrel gun and Kedar was armed with country-made-pistol. C. The gun shot fired by Bachchu and Kedar had hit deceased and he received gun shot and pellets injuries on the various parts of the body.” 12. Having noted the contents of the above said written-report (Exhibit-P/1) on the basis of which a formal First Information Report (Exhibit-P/20) was registered, we shall refer to the evidence led by the prosecution, in brief, by giving its gist. 13. Suffice it to say that the prosecution, in all examined thirteen witnesses, namely Ranjeet (PW-1), Ramcharan (PW-2), Papaiya Singh (PW-3), Durg Singh (PW-4), Ballo (PW-5), Kalua (PW-6), Kamal Singh (PW-7), Dr. Bhopal Singh (PW-8), Ramkishan (PW-9), Durga Prasad (PW-10), Sonpal (PW-11), Hari Singh (PW-12) and Mitthan Singh (PW-13) respectively. 14. 13. Suffice it to say that the prosecution, in all examined thirteen witnesses, namely Ranjeet (PW-1), Ramcharan (PW-2), Papaiya Singh (PW-3), Durg Singh (PW-4), Ballo (PW-5), Kalua (PW-6), Kamal Singh (PW-7), Dr. Bhopal Singh (PW-8), Ramkishan (PW-9), Durga Prasad (PW-10), Sonpal (PW-11), Hari Singh (PW-12) and Mitthan Singh (PW-13) respectively. 14. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. and in defence, accused examined four Doctors, namely Dr. Bhopal Singh Choudhary (DW-1), Dr. Suresh Chand (DW-2), Dr. J.P. Pathak (DW3) and Dr. V.L. Gupta (DW-4) respectively. Ranjeet (PW-1) in the Court stated that about six months ago on 09.04.1985 at 07:00 A.M. he was going to the temple of Devnarain to hear the ‘bhajjans”. He was going through the fields of Banni. He saw that Heera was also going to the temple through the field of Chandro. Bachchu, Babu, Himmu @ Himmat, Bheem, Narayan, Siya, and Kedar, the present accused-appellants were also going to the temple. Bachchu was armed with gun. Kedar was armed with country-made-pistol. Bheem was also armed with gun and remaining others were armed with lathies. Babu and Narayan said that the enemy is going and he be killed. Bachchu fired a shot from his gun towards Heera. The second shot was fired by Kedar. The shot from gun of Bachchu had hit Heera in his armpit, chest and on the neck. He died at the spot. When the shot was fired, Ballo, Vanni, Chandro, Papaiya and Ramcharan were present. Thereafter, accused decamped from the spot. We reproduce here following portion from the examination-in-chief of Ranjeet (PW-1) as under :- ^^cPpw ds gkFk esa canwd] dsnkj ds gkFk esa dV~Vk] Hkhe ds gkFk esa cUnwd] ckfd;ksa ds ikl ykfB;ka FkhA ckcw o ukjk;.k us dgk fd nq'eu tk jgk gS ekj nks ;g ckr gh ghjk ds fy, dgh FkhA cPpw us ghjk dh rjQ canwd pykbZa ghjk fxj iM+kA nwljh canwd dsnkj us pykbZ cPPkw dh canwd pykus ls ghjk ds cxy Nkrh vkSj xnZu ij yxh ghjk ogha ej x;kA (emphasis supplied) xksyh pyh rc cYyks] cUuh] pUnzks] iifg;k] jkepju] ogha FksA** 15. This witness – Ranjeet (PW-1) denied the suggestion that he, along with Ramkishan, Papaiya, Durga Singh, Ramcharan, Kalua, Virendra, Arjun and Pooran had stopped the accused, who were going to the temple and had given injuries to Narayan, Babu and Bheem. This witness – Ranjeet (PW-1) denied the suggestion that he, along with Ramkishan, Papaiya, Durga Singh, Ramcharan, Kalua, Virendra, Arjun and Pooran had stopped the accused, who were going to the temple and had given injuries to Narayan, Babu and Bheem. The witness has specifically denied as incorrect that three accused have received injuries in the occurrence. We reproduce here following portion from the examination-in-chief of this witness as under :- ^^;g xyr gS fd eSusa jkefd'ku] iifg;k] nqxkZflag] jkepju] dyqvk] ohjsUnz] vtquZ o iwju us eqyfteku dks eafnj esa tkus ls jksdk vkSj ukjk;.k occw o Hkhe ds lkFk ekjihV dhA ;g xyr gS fd bu rhuksa eqyftekuksa dks dksbZ pksVsa vkbZa gksa ;g xyr gS fd ge yksax izgyknh] Hkokuh dks ekjus ds fy, muds ihNs nkSMsA ;g xyr gS fd ;g nksauksa yM+fd;ka viuas /kj esa /kql xbZ gks vkSj jkefd'ku] jkethyky] dyqvk] ohjsUnzflag o dey muds ihNs /kj esa /kqls gks vkSj mUgksusa ogka eql- jkeifr o y{Nks dks ekjk gks ;g xyr gS fd eql- jkeifr o yPNks dks pksVs vkbZ gksaA** 16. Ramcharan (PW-2) in the Court deposed that at the time of alleged occurrence, he was milching his sheep. He had seen accused going towards his Nohra. Bheem and Bachchu were armed with gun. Kedar was armed with country-made-pistol. Others were armed with lathies. The witness stated that his father - Heera was going towards Devnarain temple. He heard gun shot and ran towards the spot and saw that his father was lying in the field of Laxman. His father had suffered injuries in the armpit, chest and on the neck. The witness stated that on his asking, Durg informed him that Kedar and Bachchu after murdering Heera ran towards the Village. The witness stated that Papaiya telephonically informed about the alleged occurrence to the Police 17. Papaiya Singh (PW-3) is first informant of the alleged occurrence. He has also almost reiterated the same version given in the written-report (Exhibit-P/1) with improvement that after shot was fired by Bachchu, present appellant – Kedar had also fired a shot. 18. Durg Singh (PW-4) also stated that all the seven accused came armed with blunt weapons. Bheem and Bachchu were armed with guns. Kedar was armed with country-made-pistol. Remaining accused were armed with lathies. This witness stated that the first shot was fired by Bachchu and the second shot was fired by Kedar with double-barrelgun. 18. Durg Singh (PW-4) also stated that all the seven accused came armed with blunt weapons. Bheem and Bachchu were armed with guns. Kedar was armed with country-made-pistol. Remaining accused were armed with lathies. This witness stated that the first shot was fired by Bachchu and the second shot was fired by Kedar with double-barrelgun. After receiving gun shot injury, Heera died at the spot. 19. Ballo (PW-5) has not supported the prosecution case and was declared hostile. 20. Kalua (PW-6) in the Court stated that Bachchu from double-barrel-gun and Kedar from country-made-pistol had fired shots and the said shots hit Heera Singh. Thereafter, the accused decamped from the spot. 21. Kamal Singh (PW-9) is the witness regarding the recovery of the weapon. 22. Dr. Bhopal Singh (PW-8), being Medical Jurist, General Hospital, Bharatpur, on 09.04.1985 at 06:00 P.M., had conducted autopsy on the dead-body of Heera Singh and in the Post Mortem Report (Exhibit-P/9) had noted following external injuries :- “External examination. The person was fairly built. The rigor mortis was present. Post-mortem staining was present on the back. The dust particulars were present over the body. Injuries (1) The multiple guns-shot wounds were present over the parts mentioned below, each had 0.2 cm diameter and 0.2 cm x 0.3 diameter. The pallets entered the body as individual pallet producing separate openings in an area of 30” in diameter without causing blackening scorching or tattooing of the surrounding skin. 1. four found gunshot wounds on right arm outer side. 2. Ten oval gunshot wounds on right chest. 3. One oval gunshot wound on right fore-head. 4. One oval gunshot wound on the outer side of right eye. 5. Oval three gunshot wounds on right scapular region. 6. Two oval gun shot wounds on right shoulder joint. 7. Three oval gunshot wounds on right hip. The injuries are ante-mortem and the duration of the injury was within 12 hours. Direction of the injury was from right side to left side from about 100. No external injury was seen on cirvicle region as well as around the neck.” 23. On internal examination, Doctor has found fracture with dislocation of the second cervical vertebrae present with compression and laceration of the cord. 24. Doctor opined that the cause of death of Heera Singh was shock and haemorrhage due to gunshot injury, including cervical dislocation. No external injury was seen on cirvicle region as well as around the neck.” 23. On internal examination, Doctor has found fracture with dislocation of the second cervical vertebrae present with compression and laceration of the cord. 24. Doctor opined that the cause of death of Heera Singh was shock and haemorrhage due to gunshot injury, including cervical dislocation. The Doctor has also proved simple injuries on the person of Durg Singh (PW-4) and Ramkishan (Pw-9) respectively. 25. Ramkishan (PW-9) has also deposed that seven accused came armed with respective weapons. Bachchu had fired shot from double-barrel-gun. Thereafter, Kedar had also fired shot from the country-made-pistol and the same was also hit the deceased. 26. We need not notice the testimony of the other witnesses and the defence evidence of the four witnesses examined in defence, to prove injuries on the person of three accused, as it is admitted case of the prosecution that the occurrence in the present case has taken in two parts: on 09.04.1985 first in the morning at 06:00 A.M. then lateron at 06:30 A.M. Durg Singh (PW-4) and Ramkishan (PW-9), as per ld. trial Judge, received injuries in the first occurrence. Thus, ld. trial Judge has convicted individually three accused, namely Bheem, Narayan and Babu @ Babu Singh for commission of offence punishable under Section 323 I.P.C. 27. Regarding the injuries suffered by the acquitted accused, ld. trial Judge, received injuries in the first occurrence. Thus, ld. trial Judge has convicted individually three accused, namely Bheem, Narayan and Babu @ Babu Singh for commission of offence punishable under Section 323 I.P.C. 27. Regarding the injuries suffered by the acquitted accused, ld. trial Judge held as under :- ^^vc vkxs ikapos iz'u ij fopkj fd;k tkrk gS A bl lEcU/k esa fo}ku vfHkHkk"kd lixbZ dk rdZ gS fd vfHk;qDrx.k i{k ds Hkheflag ds 'kjhj ij nks lk/kkj.k pksVsa o ,d xEHkhj pksV 9&4&85 dks lqcg 6 ctdj 50 feuV ij] 12 ?kaVs iqjkuh] okow ds 'kjhj ij 9&4&85 dks lqcg lkr cts] 12 ?kaVs iqjkuh] pkj lk/kkj.k pksVs] vfHk;qDr ukjk;.k dks 11&4&85 dks lqcg ukS cts 48 ls 60 ?kaVk iqjkuh rhu xaEHkhj pksVsa o nks lk/kkj.k pksVsa] Jh jkeifr dks 11&4&85 dks lqcg ukS ct dj nl feuV ij 48 ls 60 ?kaVk iqjkuh rhu lk/kkj.k pksVsa o ,d xaEHkhj pksV] lwtk jke vfHk;qDr dks 12&4&85 djs 'kke dks lkr cts rhu ls pkj fnu iqjkuh] nks lk/kkj.k pksV ,oa Jherh yPNks dks 12&4&85 dks lqcg lkr ctdj nl feuV ij rhu ls pkj fnu iqjkuh nks lk/kkj.k pksVsa vkuk lixbZ LFkkfir djus esa lQy jgh gSA Hkhe flag ds 'kjhj ij ,d xEHkhj] nks lk/kkj.k] okow ds 'kjhj ij rhu lk/kkj.k ukjk;.k ds 'kjhj ij rhu xaEHkhj o ikap lk/kkj.k vkSj ,d xEHkhj lwjtk jke ds 'kjhj ij o nks lk/kkj.k pksVs yPNksa ds 'kjhj ij vkuk pksVs vkus dh ckr dh LFkkiuk MkŒ Hkksiky flag] MkŒ ikVd] MkŒ oh ,e xqIrk] o MkŒ lqj'k pUnz ds c;kuksa ls izn'kZ MhŒ 8 ls izn'kZ MhŒ 17 rd i<s tkus ls LFkkfir gks tkrh gSA bu lHkh pksVksa dk le; Hkh ?kVuk ds le; ds vkl ikl gh vkrk gSA vfHk;kstu ds lHkh ekSf[kd lk{khx.k vius vkidks izR;{kn'khZ xokgku dgrs gSA ijUrq muls buds ckjs esa Li"Vhdj.k ekaxk x;k gS ij mUgksusa dksbZ Li"Vhdj.k ugha fn;kA fo}ku vfHkHkk"kd dk ;g dguk gS fd ,sls Li"Vhdj.k ds vHkko esa ;g dgk tk ldrk gS fd vfHk;kstu ds mDr xokgku us vlyh ?kVuk dsSls gqbZ vkSj D;k gqbZ mldks fNik fy;k gSsA vr% ,slh fLFkfr esa ;g dgk tk ldrk gS fd mUgksusa U;k;ky; ds le{k lPph dgkuh ugha j[khA vr% mudh lk{; fo'oluh; ugha ekuh tkrh gSA nwljh rjQ ifjoknh ds fo}ku vfHkHkk"kd dk ;g dguk gS fd vfHk;qDr x.kksa }kjk [kkbZ pksVksa dk Li"Vhdj.k nsus ds fy, vfHk;kstu ges'kk dRrZO;k/khu ugh gSA ;fn vfHk;qDr }kjk vijk/k fd;k tkuk vfHk;kstu lansg ls ijs lhfer dj nsrh gS rks vfHk;kstu ds fy, vo'; ugh gS fd og vfHk;qDrx.kksa dh pksVks dk Li"Vhdj.k nsaA fo}ku vfHkHkk"kd us bl lEcU/k fØeuy yk tujy 1988 ist 925 ij mf?k`r uthj ij fo'okl fd;k gSA** 28. The ld. trial Judge further held that the testimony of Ranjeet (PW-1), Kalua (PW-6), Durg Singh (PW-4) and Ramkishan (PW-9) is partially correct and, thus, ld. trial Judge extended the benefit of doubt to accused - Babu @ Babu Singh and Narayan, so far exaggeration, qua their part and participation of other accused is concerned. The ld. trial Judge further held that the testimony of Ranjeet (PW-1), Kalua (PW-6), Durg Singh (PW-4) and Ramkishan (PW-9) is partially correct and, thus, ld. trial Judge extended the benefit of doubt to accused - Babu @ Babu Singh and Narayan, so far exaggeration, qua their part and participation of other accused is concerned. We reproduce here following portion from the impugned judgment of the trial Judge as under :- ^^nksuksa i{kksa }kjk fof/k fo:) lEesyu ds lEcU/k esa tks rdZ fn, gS mu ij geus xkSj iwoZd /;ku fn;k bl ckjs esa ge bl jk; ds gS fd vfHk;kstu us ftu xokgku dks ifjf{kr fd;k gS muesa ls dsoy j.kthr] dyqvk] nqxZflag] jkefd'ku dh lk{; dks geus vkaf’kd :i ls lgh ekuk gSA vfHk;kstu okow vkSj ukjk;.k dks fof/k fo:) lEesyu dk lnL; crkus ds fy, ;g fof’k"V dgkuh lkeus ysdj vk;h Fkh fd mUgksusa oPcw o dsnkj dks cUnwd pykus dks dgk rFkk lkFk gh eSa ;g dgkuh ysdj vk;h Fkh fd os e`rd ds ihNs vk;s vkSj ?kVuk ds le; gfFk;kj cUn FksA tgka rd vfHk;kstu dh bl dgkuh dk fd okow vkSj ukjk;.k us cUnwd pykus ds fy, mdlk;k dk lEcU/k gS mlds ckjs esa iwoZ esa foospu ds nkSjku U;k;ky; ;g eku pqdk gS fd bu xokgku us ,slh lEiwf"V ugh dh gS ftlls ;g dgkuh lansg ls ijs LFkkfir ekuh tk ldsA gj xokg us bl dgkuh ds leFkZu esa viuh viuh ckrsa dgh gSA ,slh egRoiw.kZ dgkuh dks ugha ekuus ds ckjs esa ckdh dh dgkuh fopkj ds fy, jg tkrh gS og ;g gS fd vfHk;qDrx.k Hkhe] ukjk;.k] okow] lh;kjke vkSj fgEer e`rd ds ihNs vk;s vkSj muds ikl ml le; ykBh vkSj cUnwd FkhA bl dgkuh dk leFkZu dyqvk] juthro jkefd”ku o nqxZflag djrs gSa ijUrq pwafd mDr xokgku dh lk{; dks bu rF;ksa ds ckjs esa dksbZ Lora= ‘kks= ls lEiw.kZ iqf"V ugh gksrh gS rFkk u gh muds }kjk gfFk;kjkas dk iz;ksx djuk ik;k tkrk gS vkSj u gh ghjkflag ds fo:) mudh dksbZ fof’k"V nq’euh ik;h tkrh gSa vr% ,slh fLFkfr esa ;g ugha ekuk tk ldrk fd os ghjkflag dh gR;k ds mns’; esa Hkkxhnkj gksA ;g LoHkkfod gS fd ;fn fdlh ds dksbZ fj’rsnkj fdlh ls O;euL;erk ds dkj.k ihNs ihNs tk;as vkSj mu fj’rsnkjksa ds ihNs dksbZ O;fDr ykBh ysdj pyk tk;s rks mlls ;g ugh ekuk tk ldrk gS fd tks vk’; muds fj’rsnkjksa dks gS ogh vk’; mudk Hkh gSa ifjek.kLo:i ;g dgk tk ldrk gS fd vfHk;kstu ;g LFkkfir djus esa vlQy jgh fd vfHk;qDrx.kksa us fof/k fo:) lEesyu cuk;kA rnkuqlkj fopkjk/khu iz’u dk mRrj udkjkRed fn;k tkrk gSA** 29. In the present case, occurrence has taken place on 09.04.1985 at 06:30 A.M., the written-report (Exhibit-P/1) was submitted to the Police by Papaiya Singh (PW-3) on 09.04.1985 at 11:00 A.M., the case was registered on 09.04.1985 at 02:00 P.M. and the special report reached at Illaqa Magistrate on next date i.e. on 10.04.1985 at 11:00 A.M., thus, there is a delay in reaching of the special report. 30. The Supreme Court in the case of Bijoy Singh & Anr. vs. State of Bihar [ (2002) 9 S.C.C. 147 ], while considering the effect of delay in reaching of special report, 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. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the “may be” and “must be”. The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission.” 31. 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.” 31. In the light of the observations, made by the Supreme Court in the case of Bijoy Singh (supra), we cannot rule out that in the present case, testimony of eyewitness suffers from embellishment, and as result of after thought, improvements have crept in their evidence. Thus, by applying rule of prudence, we shall sift the grain from the chaff. 32. Taking into consideration the observations made by the Apex Court and the delay in reaching of the special report, we are of the view that the Court must be on guard and circumspect to accept prosecution case. 33. Thus, the delay in reaching of the special report is sufficient for us to infer that the prosecution witnesses in consultations with the Investigating Agency have resorted to widening the net so far naming the accused is concerned. The first shot has been fired admittedly by Bachchu from double-barrel-gun. 34. From the injuries noticed by Dr. Bhopal Singh (PW-8) on the person of deceased Heera Singh, it cannot be ruled out that they were caused by one gun shot. 35. The prosecution, in the present case, has proved on record the report of the State Forensic Science Laboratory Rajasthan, Jaipur (Exhibit-P/18). The double-barrel-gun, which was used by Bachchu was sent to the State Forensic Science Laboratory Rajasthan, Jaipur, along with twelve-bore special cartridge case and two lead pellets. 36. The entire report of the State Forensic Science Laboratory Rajasthan, Jaipur (Exhibit-P/18) is reproduced herein below :- “Packet A contained one 12-bore DBBL gun No.7401283 (Indian Ordinance Factory) marked W/1. Packet B contained one 12-bore K.F. special cartridge case, marked C/1. Packet C contained two lead pellters and one piece of bone. Brief Details of examination. (1) Barrels residues from submitted 12-bore DBBL gun (W/1) were analysed and combustion products of powder charge detected. (2) Stereo and comparison microscopic examination were made involving one 12-bore crime cartridge case (C/1) from packet B with 12-bore test cartridge cases fired from submitted 12-bore DBBL gun (W/1) in order to compare characteristic marks present on them. (1) Barrels residues from submitted 12-bore DBBL gun (W/1) were analysed and combustion products of powder charge detected. (2) Stereo and comparison microscopic examination were made involving one 12-bore crime cartridge case (C/1) from packet B with 12-bore test cartridge cases fired from submitted 12-bore DBBL gun (W/1) in order to compare characteristic marks present on them. Result of examination (1) One 12-bore DBBL gun (W/1) from packet ‘A’ is a serviceable firearm and had been fired some time before, it was received in the Laboratory. (2) Based on microscopic examination, it is the opinion that one 12-bore cartridge case (C/1) from packet B has been fired from the right barrel of submitted 12-bore DBBL gun (W/1). (3) The size of one lead pellet contained in packet ‘C’ could be No.4. However, no opinion could be given on the second damaged lead pellet.” 37. The country-made-pistol allegedly used by the appellant was not sent to the State Forensic Science Laboratory Rajasthan, Jaipur. 38. From the special cartridge of twelve-bore gun seized by the Investigating Agency, it is apparent that the shot fired by the double-barrel-gun had proved fatal. The deceased had died due to the shot fired by double-barrel-gun and same is corroborated from the report of the State Forensic Science Laboratory Rajasthan, Jaipur (Exhibit-P/18). 39. Thus, to us, the role assigned to the present appellant-Kedar is blemish and he was introduced later due to delay, as accused, as a result of consultations and deliberations. 40. We cannot become oblivious of the fact that the prosecution witnesses have been partly believed and their testimony has been doubted regarding the exaggeration given by co-accused, namely Babu @ Babu Singh, Narayan and Bheem Singh, that being so, we cannot place implicit reliance upon witnesses regarding firing of second shot assigned to Kedar. 41. There is also no evidence that the shot fired by Kedar had hit deceased, as Ranjeet (PW-1) has stated that the shot fired from Bachchu had hit on the armpit, chest and on the neck of Heera Singh. Therefore, from the examination-in-chief of Ranjeet (PW-1), which we have reproduced herein above, even though firing of shot, is attributed to Kedar but the said shot had not hit the deceased. 42. Therefore, from the examination-in-chief of Ranjeet (PW-1), which we have reproduced herein above, even though firing of shot, is attributed to Kedar but the said shot had not hit the deceased. 42. Therefore, we cannot rule out that the witnesses have widened the net and by exaggeration has inflated the number of accused by assigning a mere firing of shot to Kedar from a country-made-pistol. Thus, the case is made out for us to sift the grain from the chaff. 43. Taking into account the delay in reaching of the special report and the fact that the witnesses were partially believed and their testimony was not accepted, qua Narayan, Babu @ Babu Singh to whom exhortation is assigned and Bheem Singh, who was also present at the spot armed with single barrel gun, we are of the view that it is not safe to place implicit reliance upon the witnesses, so far firing of second shot is attributed to appellant – Kedar. Hence, by extending the benefit of doubt, we shall acquit appellant – Kedar. 44. Consequently, the present appeal preferred by appellant–Kedar is accepted. The impugned judgment of conviction pronounced and the order of sentence, qua the appellant are set aside by granting benefit of doubt. The appellant is acquitted of the charges formulated. 45. We find from the entire record that immediately after admission of the appeal, the sentence awarded upon the appellant–Kedar was suspended and he was ordered to be released on bail, hence, we order that the bail bonds and the surety bonds furnished by the appellant shall stand discharged. 46. However, the trial Court to comply with the provisions of Section 437-A Cr.P.C. shall call the appellant.