JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Udal has instituted the present appeal, bearing D.B. Criminal Appeal No. 1422/2016 to assail the impugned judgment dated 4.10.2016 rendered by the court of Special Judge SC/ST (Prevention of Atrocities) Cases, Dholpur. The said court vide impugned judgment dated 4.10.2016 held the appellant Udal guilty of offences under Sections 148 and 302/149 IPC. However, the trial court recorded the acquittal of the appellant Udal for the offence under Section and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act (hereinafter to be referred as ‘SC/ST Act’). 2. Having convicted the appellant for the above said offences, the trial court vide a separate order of even date, sentenced the appellant as under:- U/s.148 IPC-to undergo three years S.I. and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo additional three months S.I. U/s.302/149 IPC-to undergo life imprisonment and to pay a fine of Rs.30,000/-, in default of payment of fine to further undergo additional six months S.I. All the sentences were ordered to run concurrently. 3. Siyaram (P.W.3) on 30.07.2006 at 7:05 AM at Community Health Center Bari, had presented a written report (Exhibit-P/6) before Prem Bahadur Singh (P.W.14), who was then posted as SHO, Police Station Sarmathura. 4. On 30.7.2006, Prem Bahadur Singh (P.W.14) was posted as SHO, Police Station Sarmathura. On the said date, Siyaram (P.W.3) presented a typed written report (Exhibit-P/6). The said written report through Constable Vinod (not examined) was sent to the police station for recording of formal FIR. This witness in the court stated that the dead body was handed over to the father of the deceased vide Supurdginama (Exhibit-P/7). He had also prepared inquest/panchayatnama (Exhibit-P/5) and had taken the dead body into possession vide memo Exhibit-P/4. He being investigating officer, has also taken into possession one pant, vest, bushirt and safi, stained with blood vide Exhibit-P/1. 5. We may notice here that Siyaram (P.W.3) in the present case submitted a typed written report. The said typed written report (Exhibit-P/6), when translated into English, reads as under:- To, SHO Police Station Sarmathura, Subject:- lodging of the report. Sir, it is submitted that the applicant is resident of Village Kachhpura, Police Station, Sarmathura. Applicant was present in his mining plot No. 8 in the revenue jurisdiction of Tarwa. The said typed written report (Exhibit-P/6), when translated into English, reads as under:- To, SHO Police Station Sarmathura, Subject:- lodging of the report. Sir, it is submitted that the applicant is resident of Village Kachhpura, Police Station, Sarmathura. Applicant was present in his mining plot No. 8 in the revenue jurisdiction of Tarwa. In the evening of 29.07.2006 at about 06:00 PM, Girraj aged 25 years son of the applicant was present along with 30 to 40 persons. At that time Dacoit Samunder Singh son of Patiram Gurjar resident of Birja Thana, Sarmathura, Ramveer resident of Bairpura, Thana Basedi and Kamal Moroli, Thana Dang Basai and 3 to 4 other persons armed with guns came. Immediately on arrival, they said that they are members of Prakash and Hariya gang. They declared that mining activity be stopped. When the complainant refused to do so, then Kamal Dacoit fired a shot upon Girraj. The said shot hit him on the hand. Second shot was fired by Ramveer which directly hit in the chest. Due to shots fired Girraj son of the applicant died at the spot. The occurrence was witnessed by the applicant, Lakhan, Jeetu, and other persons. Other persons who were standing there had also witnessed the occurrence. All Dacoits after firing the shots had left the spot. Therefore, sir, it is requested that after registration of the case assailants be arrested and legal action be taken against them and they be got punished. Date: 30.7.2006 Sd/- Siyaram s/o Kishanlal Meena by caste Meena, r/o Village Kachhpura, Police Station Sarmathura, Tehsil Bari.” 6. Mr. Anil Upman, leaned counsel appearing for the appellant Udal has laid much emphasis on the fact that the written report (Exhibit-P/6) was got typed and thus, same was submitted after result of consultations and deliberations. We find that in the FIR (Exhibit-P/24) even though accused have been named as Dacoit, the investigating agency has not submitted the charge sheet under any of the provisions pertaining to robbery and dacoity. The trial court had also not formulated the charge of dacoity. A perusal of the order framing charges by the trial court also reveals that the appellant Udal was charged for the offences under Sections 148, 302/149 IPC and 3(2)(v) of SC/ST Act. Therefore, even though the complainant had described the accused as Dacoit, no investigation was carried to this effect. A perusal of the order framing charges by the trial court also reveals that the appellant Udal was charged for the offences under Sections 148, 302/149 IPC and 3(2)(v) of SC/ST Act. Therefore, even though the complainant had described the accused as Dacoit, no investigation was carried to this effect. Even the provisions of Dacoity Affected Area Act, have not been invoked. The only reason for the accused to go to the spot which has surfaced during the case of the prosecution is that the accused intended Siyaram to close his mining activity. In the written report (Exhibit-P/6) only three persons have been named, i.e. Samundar Singh, Kamal Singh and Ramveer. 7. We are informed that during the interrogation, the investigating agency, came to the conclusion that 3 to 4 unnamed persons named in the written report (Exhibit-P/6) leading to registration of FIR (Exhibit-P-24) bearing No. 224/2006 registered at Police Station Sarmathura, were Hariya @ Hari Singh, Lakhan, Udal and Bhura. 8. In the present case, the investigating agency had not resorted to the provision of Section 299 Cr.P.C., but had submitted piecemeal charge-sheets against accused persons, as and when they were apprehended. First charge-sheet was submitted against the co-accused Ramveer. He was tried in Sessions Case No. 17/2007 and he was convicted and sentenced vide judgment dated 05.11.2008. 9. The accused Kamal Singh, who was named in the FIR (Exhibit-P/24) and allegedly fired a shot, during the investigation was declared proclaimed offender, we are informed by the learned counsel for the parties that during the pendency of the appeal, Kamal Singh has died. 10. The co-accused Samundar Singh who was another person named in the FIR was tried in Sessions Case No. 21/2009 and the Court of Special Judge SC/ST (Prevention of Atrocities) Cases, Dholpur, vide impugned judgment dated 23.04.2010 convicted him for offences under Sections 148, 302/149 IPC. However, he was acquitted of offence under Section 3(2)(v) of SC/ST Act. The trial Judge vide separate order of even date had convicted Samundar Singh as under:- U/s.148 IPC-to undergo three years R.I. U/s.302/149 IPC-to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo one year additional R.I. 11. Aggrieved against his conviction and sentence, the co-accused Samundar Singh has filed the present appeal bearing D.B. Criminal Appeal No. 347/2010. 12. Aggrieved against his conviction and sentence, the co-accused Samundar Singh has filed the present appeal bearing D.B. Criminal Appeal No. 347/2010. 12. Lakhan Singh not named in the FIR was subsequently apprehended. He was tried by the court Special Judge, SC/ST (Prevention of Atrocities) Cases, Dholpur, in Sessions Case No. 35/2008. The said court on 23.01.2009 recorded acquittal of Lakhan Singh. The judgment dated 23.01.2009 has been assailed by the State of Rajasthan by filing D.B. Criminal Leave to Appeal No. 124/2011. Siyaram the complainant has also filed D.B. Criminal Revision Petition No. 690/2009 to assail the acquittal of Lakhan Singh for offence under Section 3(2)(v) SC/ST Act. 13. Hariya @ Hari Singh was also separately tried by the court of Special Judge, SC/ST (Prevention of Atrocities) Cases,, Dholpur, in Sessions Case No. 32/2010 and vide a separate judgment dated 13.09.2012 Hariya @ Hari Singh was acquitted. The said judgment has been challenged before us by the complainant Siyaram by filing D.B. Criminal Appeal No. 908/2012. 14. The present appellant Udal, who was not named in the FIR, had absconded and was later apprehended. He was also tried by the court of Special Judge, SC/ST (Prevention of Atrocities) Cases in Sessions Case No. 01/2015. The said court vide impugned judgment dated 04.10.2016 held Uddal guilty of offences under Sections 148 and 302/149 IPC. 15. Since all the accused have been tried separately, we shall decide appeal against conviction filed by the respective accused and appeal against acquittal filed by the complainant and leave to appeal filed by the State of Rajasthan, separately but simultaneously. 16. In the written report leading to registration of FIR (Exhibit-P/24), it has been specifically stated that two shots were fired, one by Kamal and another by Ramveer, resulting into death of Girraj son of the complainant Siyaram (P.W.3). Girraj as a result of firearm injuries, died at the spot. His dead body was brought to the Community Health Center, Bari. 17. Dr. Rajesh Mittal (P.W.12) on 30.07.2006 at 08:00 AM had conducted autopsy on the dead body of Girraj. In the Post Mortem Report (Exhibit-P/12) Dr. Rajesh Mittal had noted following injuries:- (1) Entrance wound 6x6 cm, through and through, bone fragmented and muscles fragmented at right arm at level or just elbow. (2) Entrance wound 6x6 cm at right side, the level or just below at chest post-axillary line which goes medially towards sic. In the Post Mortem Report (Exhibit-P/12) Dr. Rajesh Mittal had noted following injuries:- (1) Entrance wound 6x6 cm, through and through, bone fragmented and muscles fragmented at right arm at level or just elbow. (2) Entrance wound 6x6 cm at right side, the level or just below at chest post-axillary line which goes medially towards sic. (i) Right humerous bone fragmented. (ii) 7th and 8th Rib right side fragmented. 18. A perusal of both the injuries reveal that there are two entrance wounds. Thus it is proved from the medical evidence that two shots were fired in the occurrence. In the post Mortem Report, it is noted that five pieces of fragmented bullet were found inside the body. We also find that the right humorous bone and 7th and 8th rib of right side due to impact of shots fired, were fragmented. As per opinion of the doctor, the cause of death was bleeding and shock due to injuries caused to vital organ by firearm. 19. In the present case to secure conviction of the appellant, prosecution has relied upon evidence of four eye witnesses namely Siyaram (P.W.3), Radheshyam (P.W.5), Lakhan Singh (P.W.9) and Jitendra (P.W.17). 20. Siyaram (P.W.3) in the court deposed that nine years ago, on 29.7.2006, he was present in his mining plot No.8, situated at Tarwa. At about 5:45 – 6:00 PM, he along with his son Girraj was supervising the work done by the labourers. At that time, six to seven dacoits came. They were armed with weapons. Dacoits namely Kamal Singh, Ramveer, Samunder Singh, Hari Singh, Udal, Bhura and Lakhan came and they gave abuses and threatened to close the mine. They disclosed that they belong to gang of Hariya and Prakash. This witness stated that he and his son raised protest. Then Kamal Singh fired a shot which hit on the hand of Girraj. Second shot was fired by Ramveer. The said shot hit in the right rib of Girraj. Other accused were armed with weapons. They had encircled the plot. This witness stated that he had lodged the written report (Exhibit-P/6) and he had also attested the inquest/panchayatnama (Exhibit-P/5). 21. In cross-examination, Siyaram (P.W.3) stated that he had presented the written report on the next day in the hospital. This witness further admitted that on the day of occurrence itself, in the evening, police arrived at the spot. This witness stated that he had lodged the written report (Exhibit-P/6) and he had also attested the inquest/panchayatnama (Exhibit-P/5). 21. In cross-examination, Siyaram (P.W.3) stated that he had presented the written report on the next day in the hospital. This witness further admitted that on the day of occurrence itself, in the evening, police arrived at the spot. The police left to chase the dacoits. He along with child came to the hospital. This witness further deposed that police in the night had arrived at the hospital. The police for whole night remained in the hospital. He had submitted the report at 7:00 – 8:00 AM. This witness stated that when the police arrived at the spot, and for the whole night had stayed at the hospital. He had not presented the report to the police. In cross-examination, this witness stated as under: ^^;g lgh gS fd fjiksVZ izn’kZ ih&6 esa mny ds uke dk gokyk ugha gSaA esjk iqfyl c;ku izn’kZ Mh&1 esa mny dk uke ugha fy[kk;k FkkA ;g lgh gS fd eSaus iqfyl esa nh x;h izFke lwpuk fjiksVZ izn’kZ ih&6 ,oa iqfyl c;ku izn’kZ Mh&1 esa ;g ugha crk;h fd eSa cnek’ku ftuds uke ugha crk;s mudks lkeus vkus ij igpku ldrk gwWaA eSaus tks rgjhj nh Fkh mlesa eSaus Hkkxus okys cnek’ku dh dB] dkBh] mez o vU; igpku ugha fy[kk;h Fkh iqfyl okyksa us iwNk Fkk vkSj u eSaus crk;h Fkh iqfyl c;ku eSa eSaus crk;h FkhA^^ 22. Siyaram (P.W.3) in the cross-examination further admitted that when inquest/panchayatnama was prepared, then also he had not disclosed the name of the accused. ^^;g lgh gS fd iapukek cuk rc Hkh eSaus fdlh vfHk;qDr dk uke ugha fy[kk;k FkkA^^ Siyaram (P.W.3) further admitted that in the written report (Exhibit-P/6), presented by him, and in his statement (Exhibit-D/1) recorded under Section 161 Cr.P.C., name of the accused is not mentioned. ^^;g lgh gS fd MdSr deyflag] jkeohj o Hkwjk ds lkFk mny vk;k Fkk ;g rF; izn’kZ ih&6 o iqfyl c;ku izn’kZ Mh&1 esa vafdr ugha gSA^^ 23. Lakhan Singh (P.W.9) deposed in the court that on 29.7.2006, he had gone to the mine of Siyaram (P.W.3) contractor. At that time, Siyaram, Girraj, Jitendra and Radheyshyam were present. In the evening at about 5:30 PM, seven to eight persons came armed with guns. The said persons included Ramveer, Kamal Singh Gurjar and Samunder Singh. Lakhan Singh (P.W.9) deposed in the court that on 29.7.2006, he had gone to the mine of Siyaram (P.W.3) contractor. At that time, Siyaram, Girraj, Jitendra and Radheyshyam were present. In the evening at about 5:30 PM, seven to eight persons came armed with guns. The said persons included Ramveer, Kamal Singh Gurjar and Samunder Singh. The said persons were known to him. Samunder Singh had given a threat that mine be stopped. Siyaram (P.W.3) raised a protest. Then Kamal Singh fired a shot on Girraj son of Siyaram. The co-accused Ramveer fired another shot on the chest of Girraj. Samunder Singh was also armed with gun. This witness further deposed in the court that at the time of occurrence, Udal was also present at the spot armed with gun. In cross-examination, Lakhan Singh (P.W.9) admitted to be correct that in statement (Exhibit-D/3), recorded under Section 161 Cr.P.C., name of Udal is not mentioned. We shall reproduce the following portion from the testimony of this witness, as under:- bl ekeysa esa iqfyl us esjk c;ku fy;k FkkA ;g lgh gS fd esjs iqfyl c;ku iz0Mh0 3 esa mnyflag ds uke dk gokyk ugha gS] eSaus rks iqfyl dks crk;k FkkA Lakhan Singh (P.W.9) also admitted to be correct that in the statement (Exhibit-D/3) recorded by police under Section 161 Cr.P.C., only name of Samunder Singh, Ramveer and Kamal Singh has been specified. This witness in the cross-examination further admitted that Siyaram (P.W.3) is his real brother. 24. To similar effect is statement of Jitendra (P.W.17). 25. Badri Prasad (P.W.4) in the court stated that after hearing gun shots, he arrived at the spot, mining plot of the complainant Siyaram (P.W.3). This witness in the cross-examination, stated that Udal was not known to him. He had not met him earlier. This witness further admitted to be correct that he had not identified the accused before Magistrate. The exact words stated by this witness are as under:- ^^mny ls esjk esy&tksy] ?kjk vkuk&tkuk ugha gSA eSa mls igys ls ugha tkurk gwWaA ;g lgh gS fd iqfyl us eftLV~sV ds le{k mny dh f’kuk[rh dk;Zokgh Hkh ugha djk;hA^^ 26. Radheshyam (P.W.5) in the court deposed that police had prepared the site plan in his presence. Police had also lifted blood stained earth and soil for purposes of sample. 27. We have heard Mr. Radheshyam (P.W.5) in the court deposed that police had prepared the site plan in his presence. Police had also lifted blood stained earth and soil for purposes of sample. 27. We have heard Mr. Anil Upman, the learned counsel appearing for the appellant Udal, Mr. N.S. Dhakad, learned Public Prosecutor and Mr. Ganesh Meena, counsel appearing for the complainant Siyaram Meena. 28. Mr. Anil Upman, the learned counsel for the appellant has contended that no overt role has been assigned the appellant Samunder Singh. It is further contended before us that all the prosecution witnesses have stated that first shot was fired by Kamal Singh and the second shot was fired by co-accused Ramveer. The shot fired by Ramveer had hit on the chest of Girraj, which proved fatal. The learned counsel for the appellant has submitted that Udal has not been named in the FIR and in the statement of the witnesses recorded under Section 161 Cr.P.C. 29. The learned counsel for the appellant has contended that the name of the appellant was introduced during the course of investigation. Learned counsel further contended that no test identification was held and the prosecution for the first time has identified the appellant Udal in the trial and therefore, identification of the accused in the court has no value. 30. We have perused the Post Mortem Report (Exhibit-P/12). There are two entrance wounds. One on the arm and another on the chest. Thus, it stands proved that in the occurrence, two shots were fired. 31. From the perusal of the above written report (Exhibit-P/6), it is apparent that the occurrence had taken place on 29.07.2006 at 06:00 PM. The written report (Exhibit-P/6) was presented on 30.07.2006 at 7:05 AM. The case was registered at Police Station Sarmathura on 30.07.2006 at 08:15 AM. The special report reached Illaqa Magistrate on 31.07.2006. 32. The Hon’ble Supreme Court 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, has observed as under:- “6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. 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. 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. 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.” 33. We have given due consideration to the rival submissions advanced by the learned counsel for the parties. 34. It is admitted fact that the appellant was not named in written report (Exhibit-P/6) leading to registration of the FIR (Exhibit-P/24). As per the witnesses, the appellant was only present at the spot armed with gun. He has not used the weapon. He has not exhorted his co-accused to cause injury to the deceased. In the written report (Exhibit-P/6), and in the statement of the witnesses, it is stated that Kamal Singh, Ramveer and Samunder Singh were accompanied by three to four unknown persons. It is incumbent for the prosecution to establish the identity of the unknown persons. He has not exhorted his co-accused to cause injury to the deceased. In the written report (Exhibit-P/6), and in the statement of the witnesses, it is stated that Kamal Singh, Ramveer and Samunder Singh were accompanied by three to four unknown persons. It is incumbent for the prosecution to establish the identity of the unknown persons. It has been held in numerous judgments that even though identification of the accused first time in the dock, is a substantive evidence, but no value can be attached to the same as witnesses are bound to identify the solitary accused standing in the dock. In the present case, the appellant Udal was not tried along with other accused. We are of the considered opinion that Siyaram (P.W.3) in the written report (Exhibit-P/6) had left the window open to name three to four persons, which were described in the written report as unidentified persons. No evidence has come on record as to how witnesses came to know that three to four persons, who had escaped from the spot, included the present appellant Udal. 35. In the written report (Exhibit-P/6), leading to registration of FIR (Exhibit-P/24) and statements recorded under Section 161 Cr.P.C., witnesses have given no description of the features or identification mark from which it could be gathered that the person who ran from the spot was the present appellant Udal. 36. In the instant case, no Test Identification Parade has been held. The witnesses for the first time in the court have identified the appellant after nine years of the occurrence. Thus, it is not safe to rely upon such identification. We can safely say that the complainant party had widened the net. For the two injuries caused, they had attributed exhortation to Samunder Singh, who has been acquitted today by a separate judgment of even date. So far the present appellant is concerned, no role has been assigned to him. Thus, it cannot be ruled out that the present appellant is victim of over implication by the complainant party. We cannot ignore the arguments raised by the learned counsel for the appellant that since the appellant Udal has not been named in the written report (Exhibit-P/6), delay in reaching of special report to Illaqa Magistrate, assume importance. 37. Thus, it cannot be ruled out that the present appellant is victim of over implication by the complainant party. We cannot ignore the arguments raised by the learned counsel for the appellant that since the appellant Udal has not been named in the written report (Exhibit-P/6), delay in reaching of special report to Illaqa Magistrate, assume importance. 37. Taking into account that no Test Identification Parade has been conducted, and the appellant Udal has not been named in the written report (Exhibit-P/6), leading to registration of FIR (Exhibit-P/24), and subsequent statements of the witnesses recorded under Section 161 Cr.P.C, especially when no overt role is assigned to the appellant in the occurrence, the witnesses have only attributed exhortation to the appellant, we are of the view that it cannot be ruled out that due to delay in lodging of the written report, the complainant in order to widen the net has introduced the present appellant as accused. Thus, the court will be circumspect to sift the grain from the chaff. 38. As a result of above discussion, we accept the appeal on behalf of accused appellant Udal. He is extended benefit of doubt and is acquitted of charges and judgment of conviction and order sentence qua him is set aside 39. In view of above, we order that the appellant Udal be released forthwith, if in custody and not required in any other case. 40. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Udal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and surety bonds of the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Supreme Court.