JUDGMENT : Ali Zamin, J. 1. Heard Sri Rajendra Kumar Yadav, learned counsel for the appellant nos. 1 and 2, Sri J.N. Yadav, learned counsel for the appellant no. 3 and learned A.G.A. for the State. 2. This appeal has been preferred against the judgment and order dated 12.02.2002, passed in S.T. No. 160 of 1991 (State vs. Devendra Singh and others) by which the learned Additional Sessions Judge, Court No. 31, Firozabad, has convicted and sentenced each of the appellants to undergo imprisonment for life under Section 302 I.P.C. and to pay a fine of Rs. 10,000/- in default of payment of fine to undergo six months simple imprisonment and to undergo five years rigorous imprisonment under Section 201 I.P.C. and to pay fine of Rs. 5,000/- each in default of payment of fine three months simple imprisonment. 3. Prosecution case, in brief, is that in the intervening night of 19/20.01.1990 Raghuvir Singh, father of the informant Bachan Singh, was sleeping as usually in the Machan situated in the field, some unknown persons committed his murder and threw the dead-body in a well by tying his hands and legs. The dead-body was taken out from the well with the help of the villagers. Injury marks were found on the dead body. On the basis of written report (Ex. Ka-1), Chik F.I.R. (Ex. Ka-7) Case Crime No. 23 of 1990, under Sections 302, 201 I.P.C., Police Station Nagla Khangar, District Firozabad, was registered on 20.1.1990 at 11.50 a.m. Investigation of the case was entrusted to S.O. V.S. Singh (DW-6). The Investigating Officer reached the spot, on his instruction, S.I. Sri Harish Chandra Sharma (PW-4) prepared inquest memo (Ex. Ka-12) and relevant papers. After completion of inquest memo dead-body was dispatched for post mortem. 4. PW-7 Dr. H.M. Agarwal conducted post mortem on 21.01.1990 at 2.00 p.m. and prepared inquest report (Ex. Ka-16). According to post mortem, following injuries were found on the body of the deceased:- "(1) Incised wound of 3 x 1 x bone deep on Rt. cheek, opp. the tragus of Rt. ear (2) Incised wound of 2 x 1-1/2 cm on mandible deep on Rt. side face (3) Incised wound of 4 x 3 cm muscle deep on the Rt. side neck below mandible (4) Incised wound of 3 x 1 cm muscle deep on Rt. side neck 2 cm away from Inj. no. cheek, opp. the tragus of Rt. ear (2) Incised wound of 2 x 1-1/2 cm on mandible deep on Rt. side face (3) Incised wound of 4 x 3 cm muscle deep on the Rt. side neck below mandible (4) Incised wound of 3 x 1 cm muscle deep on Rt. side neck 2 cm away from Inj. no. 3 (5) Incised wound of 5 x 2 cm x deep structure of Rt. (oesophagus, trachea, blood vessels & nerves) side neck with cut of underneath structure below the angle of mandible Rt. side (6) Incised wound of 3 x 1 cm x bone deep and the back of head just near mastoid bone (7) Incised wound of L shape present on the back of head 3 cm with depth up to scalp (8) Incised wound of 2 cm x 2 cm x bone deep present on the back of neck, 3 cm down to injury no. 7 and 2 cm apart (9) contusion of 6 cm x 4 cm on the left cheek (10) Incised wound of 2 x 1-1/2 cm x muscle deep on back of left shoulder." 5. As per opinion of the doctor, death occurred near about 1-1/2 days before conducting post mortem and cause of death was found due to shock and excess bleeding as a result of antemortem injuries. 6. Investigating Officer prepared spot map (Ex. Ka-11) and took into his possession blood stained and plain earth from the place of incident and prepared inquest memo (Ex. Ka-12). He further took into his possession a quilt taken out from the well and prepared its recovery memo (Ex. Ka-13). A blood stained and earthen sickle was also taken into possession from the place of incident and recovery memo (Ex. Ka-14) was prepared. 7. After completing the investigation, Investigating Officer submitted the charge-sheet under Sections 302 and 201 I.P.C. against the accused-appellants, Devendra Singh, Ram Naresh @ Seth and Bhoora, before the Court of C.J.M. Firozabad, who committed accused persons to the Court of Session where Case Crime No. 23 of 1990, under Sections 302, 201 I.P.C., Police Station Nagla Khangar, District Firozabad, was registered as Session Trial No. 160 of 1991. It was made over to the Court of Additional Sessions Judge-II, Firozabad for trial, who framed charge against the accused persons under Sections 302 and 201 I.P.C. 8. It was made over to the Court of Additional Sessions Judge-II, Firozabad for trial, who framed charge against the accused persons under Sections 302 and 201 I.P.C. 8. To prove its case prosecution has produced seven witnesses; P.W. 1 Bachan Singh is the informant, P.W. 2 Agya Ram and P.W. 3 Janak Singh are witness of fact, P.W. 4 Harish Chandra Sharma prepared inquest of the dead-body, P.W. 5 Prem Singh prepared chik and F.I.R. P.W.-6 Vijendra Singh Investigating Officer, P.W. 7 Dr. H.M. Agarwal conducted post mortem are the formal witnesses. After prosecution evidence, statements of the accused persons were recorded under Section 313 Cr.P.C., in which, they pleaded that due to enmity the case proceeded against them. After recording statements of accused persons, Vinod Kumar has been examined as C.W. 1. 9. Learned Additional Sessions Judge, Firozabad, after hearing learned counsel for the parties and perusal of the record, has passed the impugned judgment and order as disclosed in para 2 of the judgment. 10. Learned counsel for the appellants submits that there is no eyewitness of the incident. Prosecution has produced P.W. 1 informant Bachan Singh and P.W. 2 Agya Ram as a witness of fact. P.W. 1 Bachan Singh has stated that Agya Ram told him after 39 days of the incident that murder of his father was committed by the accused persons whereas P.W. 2 Agya Ram has stated that he told Bachan Singh after two months of the incident. Agya Ram was present in the village but his statement was not recorded promptly by the I.O., therefore, his testimony is not believable. P.W. 3 Janak Singh has stated that Vinod Singh was Village Pradhan at the time of incident. He had gone to meet Vinod Singh and when he was sitting there, in his presence, accused Devendra Singh, Ram Naresh and Bhoora came and told that they have committed murder of Raghuvir Singh by sickle and tying him in a quilt and dhoti threw the body into a well. According to P.W. 2 Agya Ram he saw committing murder of Raghuvir by accused persons. They had threatened him not to disclose to anyone about the incident but he has stated that an information had spread in the village before telling by him about the incident to P.W. 1 Bachan Singh. According to P.W. 2 Agya Ram he saw committing murder of Raghuvir by accused persons. They had threatened him not to disclose to anyone about the incident but he has stated that an information had spread in the village before telling by him about the incident to P.W. 1 Bachan Singh. The witness has also stated that the accused persons told to Vinod that since he is Village Pradhan he should save them as police consider his request. They also stated that if their goats had not entered into the field of Raghuvir Singh then this quarrel would not have happened and Raghuvir Singh would not have been murdered. Vinod has been examined as C.W. 1 and he has denied knowledge as to who committed the murder of Raghuvir. He also submits that motive of the incident is alleged that goats of the accused persons had entered into the field of the deceased on account of which an altercation took place which was resolved also, thereafter incident was caused but entering of goats in the field is a matter of trivial nature, on the basis of which, causing the incident does not appear probable specially when matter was resolved. Therefore, he submits that impugned judgment and order is not sustainable and is liable to set aside. 11. Per contra, learned A.G.A. submits that as per evidence goats of the accused persons had entered into the field of deceased regarding which an altercation took place thereafter the deceased was murdered by the accused persons. Prosecution witness P.W. 2 Agya Ram and informant P.W. 1 Bachan Singh have proved it. Learned Additional Sessions Judge, considering the prosecution evidence, facts and circumstances of the case, has rightly convicted and sentenced the accused persons. No interference is required by this court. 12. According to the prosecution version, the deceased who was sleeping in the intervening night of 19/20-01-1990 in a machan situated in the field was murdered and information was given to this effect that some unknown persons had committed his murder and threw the dead-body into a well by tying his hands and legs. 12. According to the prosecution version, the deceased who was sleeping in the intervening night of 19/20-01-1990 in a machan situated in the field was murdered and information was given to this effect that some unknown persons had committed his murder and threw the dead-body into a well by tying his hands and legs. P.W. 1 in his cross-examination at page 19 of the paper book has admitted that Agya Ram had told him after 39 days of the incident that Devendra Singh, Ram Naresh and Bhoora committed the murder of Raghuvir Singh, whereas P.W. 2 Agya Ram has stated that he told to P.W. 1 Bachan Singh after near about two months of the incident. On page 23 of the paper book he has also stated that due to fear he did not tell the informant for two months of the incident. Thus, there is contradiction in the statement of P.W. 1 Bachan Singh and P.W. 2 Agya Ram about duration of disclosing information regarding the incident. 13. He has also stated that after 5-6 days of terahi a rumour spread in the village that the accused persons have committed murder of the deceased. He asked Agya Ram about it and Agya Ram consoling told him that there is a rumour in the village that accused appellants had committed murder of the deceased. Agya Ram weepingly told the informant not to disclose the information to anyone. P.W. 1 Bachan Singh does not state from whom he heard the rumour about commission of the murder by accused persons after 5-6 days of the terahi. He also does not state that when he heard the rumour he informed to investigating officer. As such the testimony of P.W. 1 Bachan Singh does not inspire confidence that P.W. 2 Agya Ram told him about the commission of the murder of the deceased by the accused persons. P.W. 2 Agya Ram has stated that the incident is at near about 12:00 to 1:00 hours of the night, on that day he was sleeping in his field and his uncle Raghuvir Singh was also sleeping in his field. He had seen in that night the accused appellant. When he flashed the torch he saw that Ram Naresh and Bhoora had pressed his uncle Raghuvir by lathi and Devendra Singh was cutting him with a sickle. He had seen in that night the accused appellant. When he flashed the torch he saw that Ram Naresh and Bhoora had pressed his uncle Raghuvir by lathi and Devendra Singh was cutting him with a sickle. Hands and legs of his uncle Raghuvir were tied by his dhoti. He has also stated that he asked the accused persons why they are doing so then the accused persons threatened that if you tell about the incident to anyone then he will also be killed in the same manner and they will also kill his family members. Thereafter, the accused persons threw the dead-body of Raghuvir in the well and put the quilt over him. The accused persons also left the sickle there which was found in the morning. He has also stated that before the incident at about 12:00 hours of the day the accused persons were grazing goats which entered into the field of Raghuvir and Raghuvir had forbidden them whereupon an altercation took place; he intervened in the matter and due to that reason the accused persons committed murder of his uncle Raghuvir. In cross-examination, he has stated that he told the Investigating Officer that he had casually slept in his field in that night. He has also stated that he showed his torch to the Investigating Officer. He has further stated that before he could tell anything to Bachan Singh a rumour had spread in the village that the accused persons had committed murder of the deceased. According to him he was the only eye witness of the incident, therefore, without his telling anybody no rumour could have spread. Since he is the nephew of the deceased therefore his conduct in keeping mum for two months does not appear natural. He has also stated that since the rumour had spread in the village that is why he told about the incident to Udai Singh and Bachan Singh sons of Raghuvir Singh, in that case, it is also possible that actually he did not see the incident and on the basis of rumour he told P.W. 1 Bachan Singh about the murder. 14. He has admitted that 'daroga' has recorded his statement after two months of the incident. 14. He has admitted that 'daroga' has recorded his statement after two months of the incident. Investigating Officer P.W. 6 Vijender Singh has also stated that on 20.3.1990 he recorded the statement of Agya Ram Singh, although he has stated that before 20.3.1990 he did not meet Agya Ram but he has stated that after dispatching the dead body he tried much to open the case by reading and involving informer, as per statement of P.W. 2 Agya Ram he was residing in the village at the time of incident. If the witness Agya Ram was residing in the village at the time of the incident then recording his statement after two months from the date of incident and the witness not telling about the same to the Investigating Officer assumes importance. The delay in recording the statement of this witness by the Investigating Officer and the witness not telling about the incident to the Investigating Officer also casts a serious doubt about his being an eyewitness of the occurrence which may suggest that the Investigating Officer was deliberately marking time with a view to decide about shape to be given to the case and eyewitnesses to be introduced. It will be profitable to refer the case of Shahid Khan vs. State of Rajasthan AIR 2016 SCC 1178 in which Hon'ble Supreme Court has held as under:- "The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced." 15. P.W. 2 Agya Ram has also stated that before the incident at about 12:00 hours the accused persons were grazing goats which entered into the field of deceased Raghuvir Singh and Raghuvir had told the accused not to graze goats in his field whereupon an altercation took place, he intervened and resolved it that is why the accused persons committed murder of Raghuvir. In cross-examination, he has stated that before the incident he did not tell anyone about grazing of the goats. He also did not tell to the daroga about grazing of the goats which indicates that the story of grazing goats by accused persons and entering of their goats into the field of deceased Raghuvir Singh is subsequently developed and first time disclosed before the court which actually did not exist, therefore, the story of grazing goats by the accused persons and entering of their goats into the field of deceased Raghuvir Singh and thereafter taking place of altercation between them is neither believable nor reliable. Furthermore, for the sake of argument, if it happened so and the matter was resolved by the witness Agya Ram, then this issue was not of such a grave nature that accused persons would commit murder of deceased Raghuvir Singh particularly when no reliable evidence has been brought on record to draw such an inference. 16. According to P.W. 3 Janak Singh accused persons confessed before Vinod Singh Pradhan of the Village that they committed murder of the deceased Raghuvir Singh but C.W. 1 Vinod has denied knowledge about the persons who committed the murder of the deceased-Raghuvir. In cross-examination by Additional District Government Counsel, he has specifically stated that he did not state before the Investigation Officer that many days before Devendra, Ram Naresh and Bhoora of his village came to him and said that you are Pradhan of the village and a wrong has been committed by them and save them they will be grateful to him. He has also stated that the accused persons did not tell him that their goats had entered into the field of Raghuvir Singh that is why in the intervening night of 19/20-01-1990 accused persons committed his murder by tying his hands and legs and threw the body into a well. Thus, the statement of P.W. 3 Janak Singh and C.W. 1 Vinod Kumar are contrary to each other. Therefore, statement of P.W. 3 Janak Singh does not inspire confidence. 17. Thus, the statement of P.W. 3 Janak Singh and C.W. 1 Vinod Kumar are contrary to each other. Therefore, statement of P.W. 3 Janak Singh does not inspire confidence. 17. P.W. 2 Agya Ram has stated that he had showed the torch to the Investigating Officer by which he had seen the accused persons in the intervening night of the incident but P.W. 6 Investigating Officer on page 37 of the paper book has stated that witness Agya Ram neither showed any torch to him nor he prepared any memo. Thus, on the point of showing torch to the Investigating Officer by which witness Agya Ram had seen the accused persons is also not consistent but contrary to each other. Therefore, witnessing of the incident by this witness in the light of torch is also doubtful. 18. Investigating Officer has stated that Agya Ram told him that he casually slept in his field in the night, whereas P.W. 2 Agya Ram has stated that he used to sleep in the field, thus, on the point of sleeping in the field of this witness, prosecution evidence is also contradictory. In view of statement of Investigating Officer (P.W. 6) his presence at the time of incident further creates doubt. 19. In view of the above discussion, we come to a conclusion that conduct of P.W. 2 Agya Ram keeping mum for a period of two months, despite being nephew of deceased, is not natural. Story of grazing goats by accused persons and entering of the goats into the field of deceased and they had an altercation with the deceased also does not inspire confidence. 20. On a conspectus of facts and circumstances of the case and close scrutiny of the evidences available on record, as discussed above, we find that the prosecution has failed to prove its case. Accordingly, the impugned judgment and order is not sustainable. 21. The appeal is, therefore, allowed. The impugned judgment and order mentioned above convicting and sentencing the appellants is set aside. Appellants are acquitted of the charges u/s. 302 and 201 IPC. Appellants are on bail. Their bail bonds are discharged. Each appellant shall file personal bond and two sureties in accordance with Section 437(A) Cr.P.C. to the satisfaction of the court concerned. 22. Office is directed to communicate this order to the court concerned forthwith and send back the record.