JUDGMENT : B. P. DHARMADHIKARI, J. 1. Appellant Deepak @ Anna Sitaram Kate in Criminal Appeal No.560/2012 happened to be accused No.1 while his parents happened to be accused Nos.2 and 3 in Sessions Case No.95/2010 on the file of Extra Joint District Judge and Additional Sessions Judge, Baramati. That Court vide Judgment delivered on 27/3/2012 acquitted accused No.2 and 3 and punished accused No.1 for offence punishable under section 302 of IPC and sentenced him to suffer life imprisonment. For offence under section 307 of IPC he has been sentenced to suffer RI for 10 years. Accused No.1 Deepak has challenged his conviction in Appeal No.560/2012 while the State of Maharashtra has challenged acquittal of accused Nos.2 and 3 in Criminal Appeal No.640/2013. 2. Deceased Sachin was cousin of Deepak i.e. his father Navnath is the brother of accused No.2. Injured Rukhmini is the wife of Navnath and the mother of deceased Sachin. The case of prosecution is agricultural field belonging to father Sampat of Sitaram and Navnath was partitioned between them by Sampat. Sitaram always felt that he got less share and hence there used to be quarrel between him and Navnath. 3. Murder of Sachin has taken place on 4/9/2010. Report to police is lodged by Rukhmini (PW-1). Prosecution claims that complainant Rukhmini had gone to her field on that day and at that time accused No.1 was administering pesticides to his crops and hence Navnath told accused No.1 to be cautious. This led to some altercation. In the evening she returned home and at 7.00 p.m. was sitting along with her husband and deceased in the house. Accused No.1 Deepak came near their house and called Sachin outside. Accordingly, Sachin went out and she followed him. Deepak questioned Sachin why he was taking bullocks on bund of his land. He took out a weapon like sattur from belt of his pant and inserted it in the stomach of her son. Her son Sachin shouted. She therefore proceeded further but Deepak gave blow of sattur on her head. When Deepak assaulted on stomach of Sachin, accused Nos. 2 and 3 were holding him. Her son fell down on ground. Complainant Rukhmini and Sachin were then taken to Ashwini hospital of Doctor Inamdar at Akluj where he was declared dead. Her report was recorded in the hospital. 4. When Deepak assaulted on stomach of Sachin, accused Nos. 2 and 3 were holding him. Her son fell down on ground. Complainant Rukhmini and Sachin were then taken to Ashwini hospital of Doctor Inamdar at Akluj where he was declared dead. Her report was recorded in the hospital. 4. We have heard learned counsel Pendse instructed by learned counsel Akshay Gosavi for the appellant Deepak in Criminal Appeal No.560/2012 and for respondent Nos.1 and 2 (Appellant) in criminal Appeal No.640/2013. Mrs.Mhatre, learned APP has argued for the State of Maharashtra in both the matters. 5. Learned counsel Pendse has submitted that the State Government could not prove the printed FIR and it therefore cannot succeed in getting conviction of any accused. He has taken us through evidence of PW-1-Rukhmini (complainant), PW-2-Navnath, PW-3 Bhagwan, PW-4- Dattatray in attempt to show that these persons cannot be accepted as credit-worthy witnesses. Their evidence is mutually inconsistent and contrary to the case of prosecution. According to him Trial Court has rightly disbelieved them and exonerated respondent Nos.1 and 2 i.e. the parents of Deepak. Very same reasons needed to be applied while considering material alleged to be against accused No.1 Deepak. 6. He submits that PW-1-Rukhmini claims that she followed her son immediately and therefore witnessed the incident. However, her statement that accused Nos.2 and 3 had caught hold of Sachin and accused No.1 Deepak inserted Sattur in abdomen of Sachin is not accepted and accused Nos.2 and 3 are acquitted. He has drawn our attention to spot panchanama Exhibit 28 and deposition of these witnesses with contention that actual place of occurrence specified in spot panchanama is not supported by Rukhmini. She denies the occurrence in the courtyard of accused persons and hence she cannot be relied upon at all. He further adds that in any case deceased Sachin entering the courtyard of Deepak therefore makes him an aggressor. 7. Pw-1- Rukhmini claims that her husband Navnath was the first person who arrived at the spot. Police could have recorded statement of Navnath immediately but that was not done. Statement of Navnath has been recorded on next date and this shows an opportunity to improve and conspire to implicate falsely the accused persons. Navnath was not injured in any way and he went to Ashwini hospital where Indapur police came. Police could have recorded statement of Navnath immediately but that was not done. Statement of Navnath has been recorded on next date and this shows an opportunity to improve and conspire to implicate falsely the accused persons. Navnath was not injured in any way and he went to Ashwini hospital where Indapur police came. He along with police carried dead body to government hospital Akluj for post mortem. Inquest panchanama of body was drawn between 20.35 to 21.35 at Rural hospital. The body was identified by PW-2- Navnath hence at that juncture, after 21.35 hours within reasonable time, the Indapur police could have recorded statement of Navnath. In this backdrop, he has invited our attention to the fact that statement of PW-1-Rukhmini at Exhibit 22 is shown to be recorded on 3.30 hours and on the basis of this statement prosecution claims that FIR was registered. However, printed FIR has not been proved by prosecution which mentions the date of recording FIR as 5/9/2010. The time of receipt of information in police station is mentioned to be 19 hours i.e. 7.00 p.m. in the evening. This FIR is forwarded to office of JMFC as per section 157 Cr.P.C. on 5/9/2010 only. Learned counsel states that Exhibit 22 mentions date and time of occurrence of crime to be 4/9/2010 at 19.15 hours. 8. Printed FIR could not have been received by the Court of J.M.F.C. after 7.00 p.m. on 5/9/2010 and because of these defects and to avoid further cross examination, prosecution choose not to exhibit the FIR. 9. Investigating Officer PW-11 could have recorded statement of PW-2--Navnath much earlier and it was not necessary for him to record statement of PW-1- Rukhmini at 2.45 a.m. in Ashwini hospital. He claims that FIR is not sent to J.M.F.C. at all and actual recording of FIR is after giving complainant and PW-2-Navnath an opportunity to fabricate the case against accused persons. 10. He has also commented upon evidence of PW-1-Rukhmini and PW-2-Navnath in attempt to show that presence of PW-1-Rukhmini at spot is itself doubtful. He submits that neither PW-1-Rukhmini nor PW-2- Navnath are eye witnesses. 11. Pw-3 speaks of a quarrel going on between three accused persons on one side and Sachin and his family members on the other side. PW-1-Rukhmini or PW-2-Navnath do not support any such quarrel. He submits that neither PW-1-Rukhmini nor PW-2- Navnath are eye witnesses. 11. Pw-3 speaks of a quarrel going on between three accused persons on one side and Sachin and his family members on the other side. PW-1-Rukhmini or PW-2-Navnath do not support any such quarrel. This witness points out insertion of Sattur by accused No.1 in abdomen of Sachin and then a blow on head of Rukhmini. Police did not record his statement though he was available in Ashwini hospital. His evidence also shows that till people gathered at the spot all three accused persons were there and they were standing on spot when deceased Sachin and his mother left the spot in jeep and proceeded to hospital. 12. Learned counsel Pendse argues that PW-4-Dattatraya does not speak of any act/role played by accused No.1, 3 or any quarrel. This witness also claims that police recorded his statement at Ashwini hospital and took his signature. Police has not produced any such statement on record. 13. Evidence of PW-5 Yogesh is also assailed by pointing out that though prosecution claims that he is eye witness, he has not seen actual assault. He speaks of altercation between Navnath and accused No.2. When he went to the spot he saw Sachin already lying on ground with his intestine protruding outside the body and Rukhmini already had head injury. He saw accused no.1-Deepak standing there armed with Sattur while accused Nos.2 and 3 were standing with him. According to him this witness also therefore does not support the case of prosecution. 14. He claims that the prosecution therefore has failed to bring on record proper material and genesis of crime. Our attention is invited to evidence of PW-8. He states recovery of blood stained T-shirt at the instance of accused No.1 under section 27 of the Evidence Act from heap of firewood cannot be accepted as spot panchanama does not mention any such stack of wood. He argues that Investigating Officer asked Talathi to draw a map of spot after said recovery and hence non mention of such heap of firewood is fatal to the case of prosecution. This recovery is from open space and hence cannot be used to the prejudice of accused No.1. 15. He submits that it is not the case of prosecution that accused persons were absconding and they were always available at their residence. This recovery is from open space and hence cannot be used to the prejudice of accused No.1. 15. He submits that it is not the case of prosecution that accused persons were absconding and they were always available at their residence. They have been arrested from their house. Recovery of motorcycle under section 27 of the Evidence Act and evidence of PW-9-Bharat in its support is therefore irrelevant. 16. Pw-7-Dr. Kulkarni was medical officer who treated Rukhmini in Ashwini hospital. He does not depose that she had any grave or serious injury which threatened her life. Rukhmini was discharged on 6/9/2010 only. Certificate Exhibit 49 shows some interpolation effected in Ashwini hospital to suit the prosecution. His evidence does not show that Investigating Officer PW-11 could not have recorded her statement before 2.45 a.m. 17. While commenting upon evidence of PW-10-Dr. Korake on post mortem, learned counsel Pendse submits that deceased Sachin had CLW on head and there was no incised wound. This witness therefore does not support alleged eye witness who claims blow of sattur on head of deceased. 18. Lastly, he invites our attention to deposition of PW-11- Vilas Dhaigude, Investigating Officer to show that accused persons were arrested on 9/9/2010 and they were not absconding. He pointed out that when this witness visited spot after recording statement of PW-1-Rukhmini he did not learnt anything about Sachin and Rukhmini sustaining injuries and their shifting to hospital. This Investigating Officer did not inquire about health of witness PW-1-Rukhmini at Ashwini hospital and also did not prove printed FIR. The fact that Exhibit 22 has been prepared later on becomes apparent as on next date at spot, Investigating Officer does not get any information of alleged attack. Learned counsel submits that he could have registered FIR immediately after getting information about the crime. He further adds that Akluj police reached Ashwini hospital as that hospital was in their jurisdiction. Akluj police also did not register the FIR. They could have registered the zero FIR and thereafter could have transferred it to their counter part at Indapur after inquest. As PW-2-Navnath was not knowing anything, his statement was not recorded. Learned counsel states that by not proving printed FIR important right of accused persons has been violated. Accused persons were made accused some time on 8/9/2010 and thereafter they were arrested. 19. As PW-2-Navnath was not knowing anything, his statement was not recorded. Learned counsel states that by not proving printed FIR important right of accused persons has been violated. Accused persons were made accused some time on 8/9/2010 and thereafter they were arrested. 19. While concluding his arguments learned counsel Pendse relies upon paragraph No.5 of cross examination of PW-1-Rukhmini to submit that deceased Sachin had other enemies and hence involvement of third person in the offence cannot be ruled out. This angle has not been investigated into and hence the circumstantial evidence is not sufficient to hold accused No.1 guilty of murder. 20. Learned APP submits that PW-1-Rukhmini the mother is a natural witness and because of incident in the afternoon, she followed her son out of house. She has been injured and hence her deposition cannot be ruled out. Only omission in her deposition is about accused leaving weapon Sattur at the spot and that is not fatal to her assertion on oath that accused Nos.2 and 3 had caught hold of deceased and facilitated attack on abdomen of Sachin by their son Deepak. The entire evidence of PW-1- Rukhmini ought to have been relied upon by the Trial Court as it is, and as such, acquittal of accused Nos.2 and 3 is unsustainable. 21. She submits that recovery of blood stained T Shirt from heap of firewood at the instance of accused No.1 under section 27 of the Evidence Act connects accused No.1 with blood as detected on T Shirt. Similarly, accused No.2 while in custody made disclosure and accordingly motorcycle used by them to run away from spot was found out. This piece of evidence brings on record criminal mind of all accused persons and hence accused Nos.2 and 3 should have been punished by the Trial Court. 22. Our attention is invited to the map of spot. She submits that murder has taken place infront of house of PW-1-Rukhmini and PW-2- Navnath. Deceased Sachin had not gone in the courtyard of accused persons and had not entered the portion infront of their house. 23. She pointed out that there is no delay in lodging FIR. The occurrence is within jurisdiction of Indapur Police Station and as deceased and injured were taken to Ashwini hospital, that hospital informed police at Akluj since hospital is in that jurisdiction. 23. She pointed out that there is no delay in lodging FIR. The occurrence is within jurisdiction of Indapur Police Station and as deceased and injured were taken to Ashwini hospital, that hospital informed police at Akluj since hospital is in that jurisdiction. Akluj police therefore visited Ashwini hospital and then carried out inquest also. Not recording of statement of PW-2-Navnath by Akluj police cannot be seen as material lacunae. 24. Pw-11-Investigating officer after getting information was the first one who went to spot and thereafter went to Akluj. He found that PW1-Rukhmini was admitted and under treatment he could have recorded her statement at 2.45 a.m. After coming back from Akluj he recorded a formal FIR in printed format. Non exhibiting that FIR is therefore not fatal. 25. Answering the contention that registration of FIR is deliberately delayed and thereafter FIR scribed ante time, Learned APP pointed out that Exhibit 63 has not been disputed by defence and that document is a special report sent by Investigating Officer to his superior at 4.30 a.m. on 5/9/2010 itself. This FIR mentions name of all three accused and hence contention that after fabrication of story on 5/9/2010 or after making them accused on 9/9/2010 FIR was prepared, is misconceived. The mention of date 5/9/2010 with time as 19 hours in column 3(b) of printed FIR is not material but an error which does not have any impact on merits of controversy. 26. She relies upon evidence of PW-1-Rukhmini, PW-2-Navnath, PW-4 as also evidence of PW-5 to submit that all these witnesses are consistent and hence acceptance of their evidence only to arrive at a finding of guilt of accused No.1 is unwarranted Accused Nos.2 and 3 also should have been found to be guilty on the basis of their deposition. The parents of accused No.1 did not prohibit assault and hence the Trial Court should not have acquitted them. She relies upon the judgment of Hon'ble Apex Court reported in the case of Goudappa and Others vs. State of Karnataka, (2013) 3 SCC 675 to submit that the facts in said matter before Hon'ble Apex Court and facts of matter at hand are identical and hence all accused persons should have been punished. 27. She relies upon the judgment of Hon'ble Apex Court reported in the case of Goudappa and Others vs. State of Karnataka, (2013) 3 SCC 675 to submit that the facts in said matter before Hon'ble Apex Court and facts of matter at hand are identical and hence all accused persons should have been punished. 27. She has also invited our attention to the impugned judgment delivered by Extra Joint District Judge and Additional Sessions Judge, particularly paragraph No.32 in it, to contend that the Trial Court has not recorded any reason for acquittal of accused Nos.2 and 3. 28. In brief reply arguments, learned counsel for accused persons submits that as the fact of accused Nos.2 and 3 holding hands of deceased is not mentioned in FIR, it was not necessary to put the same to Investigating Officer. It is pointed out that spot was visited by Investigating Officer on 5/9/2010 and spot panchanama was completed between 9.00 a.m. to 9.45 a.m. 29. Paragraph Nos.5, 7 and 8 in the Judgment of Hon'ble Apex Court reported in Bijoy Singh and Ors. vs. State of Bihar, (2002) AIR SC 1949 , are relied upon to explain the importance of section 157 of Cr.P.C. in the scheme of investigation of offence. Judgment of Hon'ble Apex Court reported in Marudanal Augusti vs. State of Kerala, (1980) AIR SC 638, is also relied upon for this purpose. In the present matter, there is no FIR before Trial Court and its forwarding to concerned Court of J.M.F.C. in terms of section 157 of Cr.P.C. is not established, benefit thereof must be given to accused persons. In view of inconsistent version of eye witnesses and absence of any cogent material to explain genesis, trial Court has rightly acquitted accused Nos.2 and 3. There is error in not extending very same logic to accused No.1. 30. As PW-1 Rukhmini and PW-2-Navnath are parents of deceased we find it appropriate to look into evidence of PW-3 Bhagwan. He knows family of accused as also deceased and their houses are infront of his house. He claims that on 4/9/2010 at about 7.00 p.m. he was standing infront of his house when quarrel was going on between accused Nos.1 to 3 on one hand and deceased Sachin and his parents on the other hand. He knows family of accused as also deceased and their houses are infront of his house. He claims that on 4/9/2010 at about 7.00 p.m. he was standing infront of his house when quarrel was going on between accused Nos.1 to 3 on one hand and deceased Sachin and his parents on the other hand. He states that accused Nos.2 and 3 caught hold of Sachin and accused No.1 inserted Sattur in the abdomen of Sachin. PW-1-Rukhmini standing behind Sachin proceeded further to rescue him. Deepak gave blow on head of PW1-Rukhmini. Sachin was then lying on ground. 31. His cross examination shows that when Dr. Inamdar of Ashwini hospital declared Sachin dead, Indapur police has reached there. Indapur Police made inquiries with him regarding injuries sustained by Sachin but they did not record his statement. Inquest panchanama was drawn in Government hospital at 8.30 p.m. Father of Sachin viz., Navnath was with this witness till post mortem was over. This witness claims that he was first to arrive at the spot and before him members of two families were present there. He stated that till other people gathered at spot all accused persons were there. Accused persons were at spot till they put Sachin and his mother in jeep. He states that somebody in the crowd had gone to get the jeep. 32. His further cross examination shows that he could not explain why fact of his standing infront of his house did not appear in his police statement. He also could not explain why fact of quarrel between two families did not appear therein. He has denied that he was giving false evidence. 33. Pw-4 also states that both families reside infront of his house and they have dispute over agricultural land. On 4/9/2010 at 7.00 p.m. he was standing infront of house, accused No.1 called Sachin from his house and Sachin came out. Deepak asked him why Sachin was taking bullock on his bunds. Then he removed sattur from his waist and inserted it in the abdomen of Sachin. When PW-1- Rukhmini proceeded to save him, Deepak gave blow of sattur on her head. 34. His cross examination shows that when he reached hospital at Akluj, Indapur police reached the hospital of Dr. Inamdar. He narrated the incident to police and they recorded his statement in the hospital. His signature was also obtained. When PW-1- Rukhmini proceeded to save him, Deepak gave blow of sattur on her head. 34. His cross examination shows that when he reached hospital at Akluj, Indapur police reached the hospital of Dr. Inamdar. He narrated the incident to police and they recorded his statement in the hospital. His signature was also obtained. Police met him again on next day. He deposed that he did not inform police that Deepak called Sachin outside his house. He did not give details of Sattur to police as he did not see it since he had lifted Sachin in jeep. He denied the suggestion that house of deceased is located infront of his house. 35. Thus, this witness who in examination-in-chief accepts placement of his house opposite house of complainant and accused, denies it in cross examination. He submits that police recorded his statement in hospital and he signed on it. Such statement, if recorded or not, this position is not placed before Investigating Officer to explain. This witness does not speak anything about accused Nos.2 and 3 and he also states that he had not seen sattur. 36. Prosecution is relying upon evidence of PW-5-Yogesh as an eye witness. He deposes that house of accused and deceased are infront of his house and they are from his relations. On 4/9/2010 at 7.00 p.m. he was infront of his house and altercation was going on between Navnath (PW-2) and accused No.2-Sitaram. He went to spot where altercation was going on and he saw Sachin lying on ground with his intestine outside and Sachin also had received head injury and PW-1-Rukhmini also had head injury. He saw accused No.1 Deepak standing armed with Sattur and accused Nos.2 and 3 were standing near him. Jeep arrived and they put Sachin and his mother in it and took them to Akluj in hospital of Dr. Inamdar. His statement was recorded by Police on next day. He also identified sattur in the Court. 37. His cross shows that when he reached the spot crowd had not gathered. He stated that he did not inform police that accused persons went away in darkness. He denied portion marked "A" in his statement. He learnt about the details from complaint filed by the mother of deceased. 38. Thus, PW-3 and PW-5 both pointed out quarrel or altercation already going on. He stated that he did not inform police that accused persons went away in darkness. He denied portion marked "A" in his statement. He learnt about the details from complaint filed by the mother of deceased. 38. Thus, PW-3 and PW-5 both pointed out quarrel or altercation already going on. According to PW-3 all accused persons and family of deceased were quarreling while according to PW-5 altercation was between Navnath and Sitaram. PW-4-Dattatray did not give any role at all to accused Nos.2 and 3. Similarly, PW-5 is silent about their role or presence in his examination in chief. PW-3-Bhagwan states that during quarrel, sattur was inserted in abdomen by accused No.1. He does not point out any call given by accused No.1 Deepak to Sachin to come out. PW-4-Dattatray pointed out said call and stated that after Sachin came out, accused No.1 made inquiry about Sachin's taking cattle on bund and assaulted with sattur. PW-5 hears altercation between the father of accused and the father of deceased, goes to the spot and finds deceased Sachin in injured condition and PW-1-Rukhmini also injured. Thus, these three witnesses who claim to be standing outside at 7.00 p.m. on 4/9/2010 are not coming up with consistent version. PW-3-Bhagwan speaks of a blow by Deepak on abdomen of Sachin. He does not state anything about blow on head of Sachin. PW-4- does not speak of any blow on head of Sachin. PW-5 finds Sachin lying on ground with stomach and head injury. These three witnesses are therefore inconsistent with each other. 39. In this backdrop, further evidence of Navnath (PW-2) needs to be perused. He states that at 7.00 p.m. he was sitting with Sachin, wife of Sachin and PW-1-Rukhmini. Deepak called his son by using name "Abadya". His son went outside the house and PW-1-Rukhmini followed him. Accused inquired why deceased was taking cattle on his bund and after altercation between his son and accused No.1, Accused No.1 inserted weapon like sattur in abdomen of Sachin. Accused Nos.2 and 3 caught hold of Sachin and then accused No.1 gave blow on head of Sachin by sattur. Sachin shouted and PW-1-Rukhmini rushed to help him. At that time Deepak gave a blow of sattur on her head. Neighbours gathered and injured were then carried to Ashwini hospital of Dr.Inamdar. 40. Accused Nos.2 and 3 caught hold of Sachin and then accused No.1 gave blow on head of Sachin by sattur. Sachin shouted and PW-1-Rukhmini rushed to help him. At that time Deepak gave a blow of sattur on her head. Neighbours gathered and injured were then carried to Ashwini hospital of Dr.Inamdar. 40. His cross examination reveals that he did not see whether blood was lying on spot where his son was lying. He lifted his son and kept him in jeep. At that time blood was oozing from body of Sachin. Clothes worn by him were on his person for about 2 days and police did not seize those clothes. His cousin brother Pandurang Kate drove jeep. They reached the hospital of Inamdar, Indapur police arrived there. Thereafter he and police took dead body to Government Hospital Akluj for post mortem. He did not remember whether Indapur police made any inquiry about the incident or whether he was present at the time of inquest panchanama to identify dead body. He deposed that till 5/11/2010 he did not state anything to anybody regarding the incident. 41. According to him second blow was given on head of Sachin by sharp edge of sattur. PW-1-Rukhmini was in standing position after receiving the blow. After seeing his son unconscious and injuries to his wife, he shouted. After giving three blows all accused persons left the spot. He did not intervene till accused persons were present. After hearing his shout people came there. He accepted, that regarding alleged altercation in the morning on 4/9/2010 no police complaint was lodged. 42. Thus, this witness speaks of second blow by sharp edge of sattur on head of deceased and his shouting after accused persons left the spot. He submits that people arrived at spot after he shouted. Evidence of PW-1-Rukhmini shows that she followed her son outside the house when Deepak gave call to Sachin. 43. This evidence of PW-2-Navnath therefore again militates with evidence of eye witnesses who claimed that they arrived at spot after hearing voice of quarrel or altercation. Their evidence interse is already commented upon by us. This witness therefore shows that PW-3, PW-4 and PW-5 arrived there after accused persons left the spot. This is inconsistent with the version of PW-3, PW-4. PW-5 only states that when he arrived at the spot the attack was already over. 44. Their evidence interse is already commented upon by us. This witness therefore shows that PW-3, PW-4 and PW-5 arrived there after accused persons left the spot. This is inconsistent with the version of PW-3, PW-4. PW-5 only states that when he arrived at the spot the attack was already over. 44. Deposition of PW-1-Rukhmini is most important. After talking about incident in the morning she states that in the evening accused No.1 Deepak came near her house and gave call to her son Sachin. Sachin went out and she followed him. Deepak then inquired from Sachin why he was taking cattle on the bund of his land. Accused Nos.2 and 3 caught hold of Sachin and accused No.1 inserted sattur in his abdomen, his intestine came out. Deepak then gave blow of sattur on head of Sachin and also on her head and threw away said sattur and ran towards house. His parents accused Nos.2 and 3 followed him. She made hue and cry and then persons living nearby gathered. On 5/4/2010 at 2.45 a.m. police recorded her statement. She also stated that one earlier FIR was filed at about 7.30 p.m. immediately after the incident. 45. Her cross examination shows that PW-2-Navnath came to spot after hearing her shouts and at that time she was sitting on ground with her son. Her husband came first and thereafter other persons arrived at the spot. She denied that accused persons ran away taking advantage of darkness. She denied that Akluj police were at Inamdar hospital when they reached the same. She denied that Akluj police made any inquiry with her. She denied that PW-11 Investigating Officer Dhaigude and police constable Gadade came to hospital of Dr.Inamdar at about 9.00 p.m Remaining portion of her cross is regarding location of her house and earlier disputes of deceased with others. Though according to accused her cross examination on location of her house and spot shows that the actual spot of occurrence is infront of house of accused, we find no substance in this submission. Between spot of occurrence and tin shed of accused persons there is 9 feet tall wall. The defence that deceased was aggressor as he came on the side of house of accused is untenable. 46. Between spot of occurrence and tin shed of accused persons there is 9 feet tall wall. The defence that deceased was aggressor as he came on the side of house of accused is untenable. 46. The last paragraph of cross examination of PW-1-Rukhmini shows that she had told police about accused Nos.2 and 3 holding her son and then accused No.1 inserting sattur. She also told police that accused No.1 went away from the spot leaving sattur. She could not explain why these facts were not appearing in FIR. She could not explain why fact that she was sitting with her family in the evening did not appear in FIR. 47. The alleged omission about her informing police that accused Nos.2 and 3 had caught hold of Sachin and then Deepak inserted sattur has not been put to the Investigating Officer. Moreover her report Exhibit 22 shows that sattur was inserted in abdomen of her son, taken out and then intestine came out. She shouted and went to intervene but Deepak gave a blow on head of her son at that time accused Nos.2 and 3 were holding her son. Her son shouted and fell down. At that time Deepak gave blow of sattur on her head. Villagers gathered. 48. Thus, deposition of this witness shows that after she shouted her husband came out with the result her husband did not see attack. Her statement at Exhibit 22 reveals that Crime No.201/2010 was registered under section 302, 307, 504, 506 read with 34 on the basis of this statement. The time of incident is recorded as 19.15 hours on 4/9/2010 FIR is shown to be registered at 3.30 a.m. on 5/9/2010. Inquest Panchanama Exhibit 29 shows that body was identified by PW-2-Navnath on 4/9/2010 at 20.35 hours. His statement however was not recorded by Indapur police or by Akluj police immediately. PW-11 Investigating Officer had gone to spot and as deposed by witness, had also come to hospital of Dr. Inamdar. He also contacted PW-2-Navnath. However, he did not record any statement of PW-2-Navnath. He preferred to record statement of PW-1- Rukhmini at 2.45 a.m. on 5/9/2010. On that basis, prosecution claims that FIR was registered at 3.30 hours. Deposition of Investigating Officer PW-11 shows that he never made any inquiry with Dr. Inamdar or any other doctor about health or consciousness of PW-1-Rukhmini. However, he did not record any statement of PW-2-Navnath. He preferred to record statement of PW-1- Rukhmini at 2.45 a.m. on 5/9/2010. On that basis, prosecution claims that FIR was registered at 3.30 hours. Deposition of Investigating Officer PW-11 shows that he never made any inquiry with Dr. Inamdar or any other doctor about health or consciousness of PW-1-Rukhmini. It is not the case of PW-11 that PW-1-Rukhmini was not available till 2.45 a.m. His deposition shows in paragraph No.4 that he did not learnt in inquiry from people on spot that deceased Sachin and his mother sustained injury and they were shifted to hospital. This statement made by him is verified by learned APP and learned counsel for accused from Marathi evidence of PW2-Navnath and found to be correct. Thus, when this witness visited the spot, he did not get any information about alleged attack. 49. In this situation, when at the hospital he saw dead body or learnt about inquest, why he preferred not to record statement of PW-2- Navnath is not explained. Further why he was required to wait till 2.45 a.m. stands unexplained. There were other eye witnesses and one of them claims that he explained the incident to police. We therefore find substance in the contention of learned counsel Pendse that Investigating Machinery allowed time to lapse so as to permit the other side to prepare fabricated story. 50. Prosecution claims that on 9/9/2010 accused persons were arrested. They are shown to be arrested in Police station and it is not the case that they were absconding. It is also claimed that at the instance of accused one T'shirt was seized from heap of firewood and it was having blood stains. After this discovery of T'shirt he wrote a letter to Tahsildar to draw a map of spot. Though the map of spot is drawn thereafter and strangely it does not show any stack of firewood. Alleged discovery of motorcycle by accused No.2 does not assume importance because eye witnesses state that accused persons were standing at spot even when deceased and injured PW-1-Rukhmini were put in jeep and were being moved to hospital of Dr.Inamdar. 51. Judgment reported in the case of Bijoy Singh (supra) shows that delay in lodging FIR often results in embellishment which is creature of afterthought. 51. Judgment reported in the case of Bijoy Singh (supra) shows that delay in lodging FIR often results in embellishment which is creature of afterthought. Procedure in Section 157 Cr.P.C. is only external check on the working of police machinery and it is required to be strictly followed. Delay in compliance renders the whole case of prosecution doubtful and the Trial Court is put as a guard to find out whether there is any change in version because of deliberations. Delay is required to be explained by prosecution. Observations in paragraph No.8 show obligation on the part of office of Magistrate receiving copy of FIR not only to mention date but also time of receipt thereof. Hon'ble Apex Court finds that in facts before it, prosecution failed to explain delay in sending copy of report to the Magistrate. 52. The observation of Hon'ble Apex Court in the judgment reported in the case of Marudanal (supra) shows that entire fabric of prosecution case would collapse if the FIR is found to be fabricated or brought into existence long after occurrence. Hon'ble Apex Court states that any number of witnesses could be added in that event without there being anything to check authenticity of their evidence. In present matter PW-11 is not coming forward to prove the exhibited FIR. Copy of un-exhibited FIR submitted to Trial Court by police shows that the police station got information at 19.00 hours on 5/9/2010. The FIR is registered on 5/9/2010 itself and it has got outward number which according to the State shows that it was dispatched in the Trial Court. On its first page on top there is receipt of office of Magistrate. This receipt only mentions date without any time and it is not clear whether it is receipt of office of Magistrate. 53. Mentioning of time 19 hours on 5/9/2010 in clause 3(b) of FIR cannot be viewed as accidental mistake. There is no such defence by the State. In this backdrop, the statement of Investigating Officer that he did not get any information on spot or then omission to record statement of eye witnesses in Ashwini hospital creates suspicion. Whether the FIR was registered on 5/9/2010 or it has been ante dated cannot be examined. There is no such defence by the State. In this backdrop, the statement of Investigating Officer that he did not get any information on spot or then omission to record statement of eye witnesses in Ashwini hospital creates suspicion. Whether the FIR was registered on 5/9/2010 or it has been ante dated cannot be examined. Check provided in the shape of section 157 of Cr.P.C. on investigation has fallen to ground here as till date copy of FIR served upon office of JMFC has not seen the light of day. 54. Insofar as conviction of accused No.1 under section 307 is concerned, PW-7-Dr. Kulkarni has stated that the patient was conscious and oriented since her admission on 4/9/2010. She also was discharged on 6/9/2010. He has accepted the overwriting in Exhibit 49. We need not go into those details. Deposition of Doctor shows that in clinical notes injury to PW-1-Rukhmini was described as CLW contused lacerated wound and it was later on scored off and substituted by words "sharp cut". This deposition therefore shows that PW-1-Rukhmini had not suffered any grievous hurt or injury which could have been sufficient in ordinary course of nature to cause or result into death. It also puts question mark on inaction of PW-11 to record immediately her statement. 55. The discussion above therefore shows inability on the part of prosecution to explain the genesis of crime and role of accused persons in it. On compliance with section 157 of Cr.P.C. being demonstrated accused would have got an opportunity to cross examine Investigating Officer to bring on record relevant material. Letter at Exhibit 63 sent to his superior by Investigating Officer cannot be seen as compliance under section 157. We therefore find investigation faulty and insufficient. When according to PW-1-Rukhmini deceased had other enemies, involvement of other person also needed to be ruled out. There are no steps in that direction. We therefore find no substance in appeal against acquittal filed by the State Government. Criminal Appeal No.640/2013 is dismissed. Accused No.1 is given benefit of doubt and is acquitted of charge punishable under section 302 as also under section 307 of IPC by giving benefit of doubt. There are no steps in that direction. We therefore find no substance in appeal against acquittal filed by the State Government. Criminal Appeal No.640/2013 is dismissed. Accused No.1 is given benefit of doubt and is acquitted of charge punishable under section 302 as also under section 307 of IPC by giving benefit of doubt. Accordingly, we pass the following order: i. The Criminal Appeal No.640/2013 is dismissed and Criminal Appeal No.560/2012 is allowed and the Appellant- Deepak @ Anna Sitaram Kate is given benefit of doubt and acquitted of charge punishable under section 302 of IPC and of charge under section 307 of IPC; ii. The judgment and order of his conviction dated 27/3/2012 in Sessions Case No.95/2010 passed by Extra Joint District Judge and Additional Sessions Judge, Baramati is hereby quashed and set aside; iii. The appellant- Deepak @ Anna Sitaram Kate be set at liberty if his custody is not required by the State Government in any other matter; iv. Muddemal property be dealt with as directed by the trial Court after the appeal period is over.