Mridula Mishra, J.
1. Appellants Madan Gopal Rai and Akshay Lal have been convicted by the 2nd Additional Sessions Judge, Gaya in Sessions Case No. 127/84/48 of 1984 for the offences under Section 307/34 of the Indian Penal Code by the judgment and order dated 21.12.1987 and have been sentenced to undergo rigorous imprisonment for life. Appellant No. 2 Akshay Lal has further been convicted under Section 27 of the Arms Act, and sentenced to rigorous imprisonment for five years.
2. The prosecution case in brief is that one Suresh Kumar Tirthani (PW 6) lodged fardbeyan (Ext. 3) on 31.7.1983 at 11 a.m. at Pilgrim Hospital, Gaya alleging therein that he is the brother-in-law of Sadhu Ram Tirthani (PW 4) and also worked as his employee. On 31.7.1983 at 7.45 a.m. he was playing with his nephew in front of his house when Rama Shankar Rai (since dead) and his Munshi Akshay Lal passed through that side on a scooter and after ten minutes Akshay Lal along with Rama Shankar Rai and Madan Gopal Rai arrived there and asked him as to why he laughed on seeing him. Suresh Kumar Tirthani responded that he was laughing with the child and that is no offence. His reply annoyed the accused persons and on apprehending trouble, he raised alarm on which Sadhu Ram Tirthani and Basdeo Tirthani arrived there. Suresh Kumar Tirthani handed over his nephew to Binod. Sadhu Ram Tirthani asked the accused Rama Shankar Rai as to why he was scuffling without any rhyme or reason on which Madan Gopal Rai caught the collar of Sadhu Ram Tirthani and gave him two or three slaps. Ram Shankar Rai ordered to kill him by firing and on his instigation Akshay Lal brought out country made pistol from his waist and fired two rounds out of which one bullet caused injury on the right side neck of Sadhu Ram Tirthani and the same bullet also hit Rama Shankar Rai causing injury to him. The second firing made by Akshay Lal hit the Pipal tree. After sustaining injury Sadhu Ram Tirthani fell down. The occurrence was witnessed by the inmates of the house and the workers of the crusher machine namely Badan Mistry (PW 3) and Rambrichh Paswan (PW 2) and others. Further it is said that Rama Shankar Rai was residing by the side of the house of Sadhu Ram Tirthani and the motive for the occurrence was the dispute relating to passage. Rama Shankar Rai had purchased a house and crusher machine from Sadhu Ram Tirthani and since then he was litigating with Sadhu Ram Tirthani for passage, but his brother-in-law (PW 4) had won the case.
3. On the basis of the aforesaid fardbeyan of Sadhu Ram Tirthani a formal FIR was drawn up at Gaya Kotwali Police Station as Kotwali P.S. Case No. 213 of 1983 under Section 307/34 of the Indian Penal Code, and 27 of the Arms Act. The police after investigation submitted chargesheet against accused Rama Shankar Rai (deceased) and the appellants. On the basis of the chargesheet cognizance was taken and the case, was committed to the Court of Sessions. The appellants were put on trial which ended in their conviction as stated above.
4. The defence of the accused appellants was that though occurrence as alleged by the prosecution has taken place, the present case was filed by the prosecution party only with a view to save their own skin and to create a defence in their favour as they were accused for committing murder of Rama Shankar Rai. True fact is that on the alleged date of occurrence i.e. on 3t.7.1983 at about 8.50 a.m. Rama Shankar Rai was sitting in front of his house Sadhu Ram Thirthani and Suresh Kumar Tirthani came there and abused Ram Shankar Rai, which was protested by Rama Shankar Rai on which Sadhu Ram Tirthani became furious and on his instigation Suresh Kumar Tirthani brought out a country made pistol and fired from the country made pistol causing injury to Ram Shankar Rai on his right shoulder as a result of which he fell down. He was taken to hospital where he was declared dead. In this connection Kotwali P.S. Case No. 212 of 1983 was instituted with respect to this occurrence against Sadhu Ram Tirthani and others on the basis of fardbeyan of Madan Gopal Rai the present case was instituted subsequent to that at 11 a.m. to create a defence in favour of the accused of Kotwali P.S. Case No. 212 of 1983.
5. The prosecution examined nine witnesses in support of the case out of whom PW 1 Bindeshwar Yadav, PW 2 Ram Brichh Paswan, PW 3 Badan Das and PW 4 Sadhu Ram Tirthani as well as PW 6 Suresh Kumar claimed to be the eye witnesses of the occurrence. PW 4 is the injured eye-witness as well as PW 6 is the informant of this case. PW 5 Dasrath Rai is a formal witness, PW 7 Gulshan Kumar is the I.O. of this Case. The prosecution has examined two doctors who are PW 8 Basant Kumar Singh. He had examined the injuries on the person of injured Sadhu Ram Tirthani. PW 9 Dr. Suresh Chandra, Civil surgeon is a witness on the point that the original bed head ticket from which injury report was copied is not available he also gave an explanation for non-availability of the bed head ticket. The defence also examined DW 1, Madan Gopal Rai and DW 2 Dr. Bijoy Kumar Singh who conducted the post-mortem examination over the dead body of deceased Ram Shankar Rai. The defence also proved the fardbeyan of Kotwali P.S. Case, No. 212 of 1983 (Ext. D) lodged by Rai and formal FIR Ext. E, as well as inquest report of Ramshankar Rai Ext.
6. PW 1 Bindeshwar Yadav said that he was milching the cow of Sadhu Ram Tirthani at 8 a.m. on the date of occurrence when Ramashankar Rai, Madan Gopal Rai and Akshay Lal came and started abusing Suresh. Sadhu Ram Tirthani also came at that time and tried to pacify them. Madan Gopal Rai caught his collar and gave 2-3 slaps. Ramashankar, who was standing in front of the Sadhu Ram (PW 4) and Akshay Lal who was behind Sadhu Ram opened fire at him and bullet hit Sadhu Ram and some bullet caused injury to Ramashankar who was trying to pacify raising his hands. Bullet caused injury on the neck of Sadhu Ram and piercing his neck it hit arm pit of Ramashankar. Sadhu Ram fell down at that place but Ramashankar moved for some distance and thereafter he also fell down. In his cross examination PW 1 has said that just after firing was made by the accused, he left for his residence. He did not go near the injured PW 4 or tried to lift him. PW 2 has admitted that he is Khalasi of Sadhu Ram Tirthani and works on his crusher machine. He has stated that Badhan Mistry and other labourers who work on crusher machine used to come at the residence of PW 4, at 6 O'clock for running crusher machine. On the date of occurrence also Badhan Mistry and other labourers had come at 6 O'clock and for one hour they operated the machine. Due to non supply of electricity the crusher machine was stopped and labourers went to their respective homes. Only PW 2 and Badhan Mistry remained there. Both of them were relaxing near the crusher machine when heard sound of firing. On hearing sound of firing he ran to the place of firing and saw Sadhu Ram PW 4 fallen near Pipal Tree in injured condition. Ramashankar Ram was also lying there at 150 steps away. PW 3 Badhan Das is the mechanic who used to work as operator of crusher machine of Sadhu Ram Tirthani. He has stated that he came at 6 o' clock for running crusher machine on the date of occurrence. He and Rambrichh PW 3 were near crusher machine and from there only he witnessed the altercation in between Akshay Lal, Ramashankar, Madan Gopal Rai and Suresh PW 6, He saw Akshay Lal firing at Sadhu Ram Tirthani, who received injury at his neck and fell down at one side and Ramshankar also fell down on the other side. He heard two sounds of firing and the person who fired was standing west to the truck parked there. He also stated that although the occurrence Rambrichh was with him.
7. Counsel appearing for the appellants has challenged the claim of PW 1, PW 2 and PW 3 to be an eye-witness to the occurrence. Regarding PW 1 it has been submitted that he is not named as an eye-witness in the FIR and from the evidence of PW 7 the IO, it transpires that the statement of PW 1, PW 2 and PW 3, was recorded under Section 161 Cr PC after seven days of the occurrence on 7.8.1983. PW 2, in his cross examination (para-9) has stated that both PW 3, and PW 2, were relaxing near the crusher machine as there was no electricity for running the crusher machine. All other labourers had already gone to their houses, but they did not go to their residence and were relaxing near the machine, from there only they heard the sound of two firing and on hearing the sound, they ran towards the place of occurrence and saw Sadhu Ram Tirthani in a fallen condition near the Pipal tree, PW 3 in paragraph 15, has admitted that Ram Brichh was with him during the entire occurrence. Since Rambrichh did not witness the occurrence then PW 3 who remained with PW 2 although he was not in a position to witness the occurrence. It is submitted that conclusion can be derived from their evidence that PW 1, PW 2 and PW 3 are not the eye witness and no reliance can be placed on their evidence as they have not witnessed the occurrence.
8. PW 6 Suresh Kumar is the informant of this case. He has stated that on the date of occurrence he was playing with his nephew in front of the house of Sadhu Ram Tirthani and at that very time Akshay Lal and Rama Shankar Rai passed on scooter. After some time Madan Gopal Rai end Akshay Lal and Rama Shankar arrived near him and asked him the reason for his laughing. He made reply which annoyed the three accused persons. They became furious and suspecting some danger he raised alarm on which Sadhu Ram Tirthani came and wanted to pacify the matter, but Madan Gopal Rai caught his collar and assaulted him with fists and slaps. Rama Shankar ordered to kill by opening fire and on his order Akshay Lal fired on Sadhu Ram Thirthani which hit his neck and that very bullet caused injury on the shoulder of Rama Shankar Rai who died. Akshay Lal also opened second fire, but did not hit any one, as it hit the Pipal tree. PW 6 has stated that at the time of opening fire Akshay Lal was standing at a distance of 1 1/2 hands from Sadhu Ram and Rama Shankar was standing infront of Sadhu Ram, The attention of PW 6 it was drawn towards his earlier statement recorded under Section 161, Cr PC that he did not mention before the police that PW 1 was milching the cow and was present at the place of occurrence. This contradiction has been corroborated by PW 7 who stated that PW 6, has not stated before him regarding the presence of PW 1 Bindeshwar Yadav, PW 6 further stated that Sadhu Ram was taken to hospital and there he was immediately taken for operation. His statement was recorded by the police at the Hospital. He has admitted that prior to recording of his fardbeyan by police he came to know about the institution of Kotwali P.S. Case No. 212 of 1983 for murder of Ramashankar against him, Sadhu Ram Thirthani and others.
9. PW 7 Gulshan Kumar is the Investigating Officer. He has stated that on 31.7.1983 he had gone to Pilgrim Hospital, Gaya in connection with investigation of Kotwali P.S. Case No. 212 of 1983 and there only he was handed over fardbeyan (Ext. 3) of Suresh Kumar by A.S.I. Rajendra Prasad. He made endorsement over the fardbeyan (Ext. 3/1) and immediately sent the fardbeyan through Shiv Mangal Sharma to Kotwali police station for instituting formal FIR and on that basis Kotwali P.S. Case No. 213 of 1983 was instituted. On being cross examined by the defence PW 7 admitted that he did not record statement of Sadhu Ram as he was unconscious and could record the statement of PW 4 on 15.8.1983. In his evidence PW 7 has also admitted that the dying declaration of PW 4, was recorded by the Executive Magistrate R.K. Tiwari which is recorded at paragraph 43 if the case diary of Kotwali P.S. Case No. 213 of 1983, He has also admitted that injury report of PW 4 was received by him on 3.8.1983 and he is also investigating Kotwali P.S. Case No. 212 of 1983 which was instituted on the fardbeyan of Madan Gopal Rai, PW 7 has also stated that he perused the documents relating to the litigation and enmity in between the parties, and injury report of Sadhu Ram was procured by him on 3.8.1983 though he visited the Pilgrim hospital on several occasions in between 31.7.1983 to 3.8.1983.
10. PW 4 Sadhu Ram Tirthani is the injured. He has stated that he had sold his land, crusher machine and right to excavate the stone from the Pahari to Ramashankar Rai. As per sale deed Ramashankar was provided 18 ft. wide road south to the land purchased by him but he never used that passage and forcibly wanted to make passage through the road in front of his house, which led to initiation of a proceeding under Section 144, Cr PC which was decided in his favour. Subsequently he won the proceeding. A proceeding under Section 147, Cr PC was also initiated by Ramashankar for passage which still continuing and a proceeding under Section 107, Cr PC was also contested by the parties during the pendency of 147 Cr PC proceeding. He stated that on hearing the alarm raised by Suresh he came and as soon as he came the accused persons slapped him. Even then he wanted to pacify them, but within 2-3 minutes of slapping the firing was made. He sustained injury from a distance of 2-1/2 ft. and he fell down. He had heard the sound of second firing. Same bullet which had caused injury to him also hit Ramashankar Rai. He admitted that his dying declaration was recorded by Magistrate, but denied the suggestion that before the Magistrate he had admitted that he regained his consciousness on 31.7.1983 itself at 10 a.m. He also denied that he had stated before the Magistrate that Ramashankar had ordered and then firing took place. He said that he had made this statement that Ramashankar was trying to separate the scuffling when he received bullet injury he said that he regained his consciousness in hospital on 1.8.1983 as he had become unconscious after receiving bullet injury. He denied the suggestion that he had not, sustained any injury and a false injury report was obtained from the doctor to create an evidence as he was made accused in Kotwali P.S. Case No 212 of 1983 and in connivance with the doctor and police a false case has been instituted.
11. PW 8, Dr. Basand Kumar Singh has stated that on 31.7.1983 at 8.10 a.m. he examined Sadhu Ram Tirthani at Pilgrim Hospital, Gaya and found wound of entry at the right side back of neck below the ear 1 1/2' x 1' x margin clean cut Ecchymosia and blackening of the skin around the wound with abrasion of the skin around the wound traversing anteriorly and forward and upward communicating with the wound of exit. He had reserved his opinion regarding the nature of injury for further investigation. He received the X-ray report on 15.5.1983 and seeing the X-ray report dated 6.8.1983 he gave his opinion that the nature of injury was simple. The X-ray report of neck lateral view did not show any bony injury or foreign article. PW 8 has stated that he had noted the injury on the bed head ticket at the time of examination of injured on 31.7.1983. Subsequently on 3.8.1983, he copied down the injury report from bed head ticket, but on query PW 8 stated that the bed head ticket of the patient is not present before him, and he has deposed on the basis of the report which he had copied on 3.8.1983 from the bed head ticket. The Court thereafter called for the bed head ticket.
12. PW 9 Dr. Suresh Chandra was examined by the prosecution to explain non production of bed head ticket as bed head ticket was not produced before the Court. PW 9 has stated that on 20.3.1985 he was posted as Deputy Superintendent in Pilgrim Hospital, Gaya when he had copied out the bed head ticket of Sadhu Ram Tirthani from original bed head ticket. The copied bed head ticket (Ext. 7) is in his pen and signature which was copied from original bed head ticket. He has further stated that original bed head ticket which was called for by the Court was searched out and in this regard a report has been submitted by the Vishram Sharma but it is not available. In his cross examination he denied that he has given any certificate that the bed head ticket has been copied by him from the original bed head ticket and the signature given on the bottom of the first page is not his signature. He stated that he did not know that who had signed it as responsibility for searching out the bed head ticket was attributed to a dresser who is incharge of all the bed head tickets, he denied the suggestion that the copy of the bed head ticket has not been copied from the original bed head ticket.
13. In the background of the prosecution evidence the appellants have challenged their conviction on following grounds.
(i) Non explanation of injury on accused is fatal for prosecution.
(ii) There was ho material as well as any injury report before the trial Court for conviction of the appellants under Section 307/34 of the Indian Penal Code.
(iii) In the background of admitted enmity and institution of Kotwali P.S. Case No. 212 of 1983, no credence should have been attached to the evidence of interested and partisan witnesses for conviction.
(iv) Trial Court committed error by convicting the appellants when it disbelieved the prosecution to the extent that the firing made by Akshay Lal did cause injury to Sadhu Ram on one side and Ramashankar Rai on the other side and came to a definite finding that both received injuries by two firings.
(v) There is inordinate unexplained inordinate delay in sending FIR to the Magistrate which created doubt against the reliability of prosecution story.
14. In support of the first point, counsel for the appellants has stated that the prosecution story is that Akshay Lal had fired from country made pistol on Sadhu Ram Tirthani which caused injury on his neck and that very bullet piercing the neck of Sadhu Ram Tirthani hit Ramashankar Rai as a result of which he died. Considering this story of the prosecution the evidence of PW 8 is very relevant. PW 8 had examined injury of PW 4 and found it to be simple as it did not cause any bony injury. PW 8 has also stated that the direction of the fire arm was from the back as the wound of entry denoted the distance from which the injury has been caused was more than 1 metre or less than four ft. DW 2 Dr. Vijay Kumar Singh who had conducted the post-mortem on the dead body of Ramashankar Rai. When asked about the probability of same bullet causing injury to PW 4 as well as deceased Ramashankar has stated that a bullet or pellet can reflect from the first object to another object causing injury to both object but the velocity of the first object before deflection depends upon the type of the injury on the first object. The muscle is a weaker resistance than the bony part of the body. If the bullet strives the bony part of the body, it may reduce the speed and velocity of the bullet, DW 2 has also stated that he found bullet embedded in the tissues of right lung of deceased which was recovered sealed and handed over to the constable. The doctor (DW 2) also stated that he did not find blackening of the fire arm in the injury of Ramashankar Rai which indicate that the injury was caused by fire arm from a long distance. The injury was massive and 1t caused fracture of 3rd rib and the bullet had also passed entire through right lung. In view of the injury report of Sadhu Ram Tirthani and the post-mortem report of Ramashankar Rai, it seems impossible that the same bullet which hit Sadhu Ram also hit Ramashankar Rai. If same bullet would have caused injury to PW 4 then it would have lost its velocity and the massive injury which has been caused to Ramashankar would not have been possible. It indicated that two different firings caused injury to Ramashankar and Sadhu Ram Tirthani. The trial Court has also reached to this definite finding. Since the trial Court has disbelieved the story of prosecution in that case it was the responsibility of the prosecution to explain the injury on the person of Ramashankar Rai, who was also an accused in the FIR of Kotwali P.S. Case No. 213 of 1983. Since no explanation has been given by the prosecution regarding the injury on the person of the accused, it is fatal for prosecution. The reliance has been placed on two decisions reported in 1993 SCC (Crl) 882 Dwarka Prasad v. State of U.P. and AIR 1991 SC 1065 State of Rajasthan v. Madho and Anr., wherein it has been held that guilt of the accused is to be judged on the basis of the facts and the circumstances of the case. In any particular case the injuries found on the person of the accused being serious In nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution. In another case the injuries disclosed being superficial, by themselves may not affect the prosecution case. The version disclosed by prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstance of that particular case, including promptness with which the first information report was lodged on behalf of the prosecution. But if first information report Has not been lodged promptly and there is no reasonable explanation for delay, the witness who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation even injuries on the person of the accused, which are not very serious in nature assumes importance for the purpose of consideration. In the present case the injuries of serious nature received by the accused in course of same occurrence would indicate that occurrence took place in some other manner. In such a situation genesis leading to occurrence assumes great importance in reaching ultimate decision. It is here that the need to explain the injuries of fatal nature received by the accused in the course of same occurrence arises when explanation given, correctness of explanation is liable to be tested. In the present case that explanation has been disbelieved by the trial Court which makes out a ground for disbelieving the prosecution case. In all cases if the prosecution fails to explain the injury on the person of the accused cannot be held to be fatal, but in the present case when such serious injury was caused to one of the accused that he lost his life and the story for explaining the injury has been disbelieved by the trial Court, in such cases it was the responsibility of the prosecution to explain it. I am of the view that and on account of this failure on the part of prosecution to explain the fatal injury on the accused has vitiated the prosecution case.
15. Regarding the second point, the argument advanced by the appellants is that from evidence of PW 8 and PW 9, it is apparent that there was no material before the trial Court for coming to the conclusion that the injury which was received by PW 4 was sufficient to cause his death making out a case of their conviction under Section 307/34 IPC and 27 Arms Act, as such the appellants are liable for their acquittal under Section 307/34 of the Indian Penal Code, and Section 27, Arms Act. PW 8, has stated that on 31.7.1983 he examined PW 4 and after examination he recorded the injury on the bed head ticket which he found on his person. Subsequently he copied the injury mentioned in the bed head ticket on separate sheet of paper. The injury report which was produced in Court was copied by him from bed head ticket. Then considering this evidence the original bed head ticket was called for by the trial Court which was also not produced and for explaining the non production of the original bed head ticket, PW 9 was examined. He also stated that on 20.3.1985 he was posted as Deputy Superintendent in Pilgrim Hospital, Gaya. He copied out the bed head ticket from original bed head ticket and put his signature. The copy of the bed head ticket copied from original bed head ticket has been marked as Ext. 7 and regarding original bed head ticket he stated that it was searched but it was not found. The certificate which has been produced that on search the bed head ticket has not been found is marked as Ext. 8. The certificate has been disowned by PW 9 that he has given any such certificate. Considering these evidence it cannot be said that the injury report and the bed head ticket which were produced before the Court were genuine documents and the injury which has been shown on the injury report was the actual injury which was found by PW 8 on the person of PW 4 on 31.7.1983. Since the original documents have not been produced before the Court, the conviction of the appellants under Section 307/34, IPC, on the basis of secondary evidence is against the evidence on record. Considering the evidence, produced by prosecution to prove the offence under Section 307/34, IPC and 27 of Arms Act. I am of the view that non production of original injury report and original bed head ticket, created doubt against those prosecution story that PW 4, received injury sufficient in ordinary course of nature to cause death from the firing made by the appellant Akshay Lal in furtherance of common intention of appellant Madan Gopal Rai.
16. In support of the 3rd ground taken by the appellants it is submitted that the enmity in between the parties is admitted in the FIR and also in the evidence of the prosecution witnesses. PW 4 the injured as well as PW 6 and PW 7. The informant (PW 6) has stated in the FIR that the occurrence has taken place on account of the continuing dispute in between the parties relating to the passage of the Ramashankar's purchased land. PW 7 the 10 has also stated that he perused the documents relating to dispute and enmity between the parties. PW 4 the injured has stated in detail about the different litigations being contested in between the parties. He has stated that Sections 144, 145, 147 and 107, Cr PC proceeding had ' been contested in between the parties and the proceedings relating to passage in 147 Cr PC proceeding was still subjudice PW 4 also stated about a sanha filed by the brother of PW 4 against other accused persons and a criminal case instituted against them in which they have been acquitted, PW 6 admitted that he knew about institution of Kotwali P.S. Case No. 212 of 1983. Prior to institution of Kotwali P.S. Case No. 213 of 1983. He stated that on the fardbeyan of Madan Gopal Rai Kotwali P.S. Case No. 213 of 1983 was instituted in which Sadhu Ram Tirthani, PW 4, brother of PW 4 and others were accused, under Section 302 of the IPC. In the background of admitted enmity and pendency of a criminal case against the witnesses of the case, the conviction of the appellants relying on the evidence of such interested and partisan witness is not safe and sustainable specially when the prosecution has not come with clean hands and tried to conceal the real story.
17. The appellants have also stated that the trial Court has committed error by convicting the appellants under Section 307/34, IPC, when it disbelieved the prosecution case to the extent that the single firing made by Akshay Lal caused injury to Sadhu Ram Tirthani and Ramashankar Rai. The trial Court came to a definite finding that fatal injury received by Ramashankar Rai and injury received by Sadhu Ram Tirthani were from two different firings. Since the prosecution story in this respect has totally been disbelieved by the trial Court in such a situation the appellants should not have been convicted for the 3rd story which was not the prosecution story.
18. Another point raised by the appellants is regarding the delay in reaching the FIR before the CJM PW 7 has stated in his evidence that on 31.7.1983 at 10 a.m. when he reached Pilgrim Hospital in connection with the investigation of Kotwali P.S. Case No. 212 of 1983 he was handed over a copy of the fardbeyan recorded by Rajendra Kumar, he immediately sent the copy of fardbeyan to Kotwali police station through Shiv Mangal Sharma for registering formal FIR and on that basis Kotwali P.S. Case No. 213 of 1983 was instituted at 11.15 a.m. but the copy of the FIR was produced before the CJM on 6.8.1983. The IO has not given any explanation for such delay. The delay in all case is not important but considering the background of this case the inordinate, and unexplained delay in sending the FIR in the Court has much relevance. In the present case the IO, was cross examined and attention of PW 7 was drawn regarding his partisan and interested behaviour towards the prosecution side. It was suggested that he was related to the informant and others PW 7 though denied it but the way he conducted investigation indicated that he was trying to help the prosecution side. The FIR was registered on 31.7.1983 itself, but it was kept at the police station. During injured PW 4 for complete 14 days. Though the dying declaration of PW 4 was recorded by the Magistrate R. Tiwary on 1.8.1983 and in his statement before the Magistrate PW 4 had admitted that he regained his consciousness at 10 a.m. on 31.7.1983 itself. The injury report of PW 4 was not procured intentionally till 3.8.1983. Possibility is that procurement of injury report was delayed till the post-mortem of Ramashankar Rai was conducted and its report was prepared so that considering the post-mortem report, the injury report of PW 4 could be prepared. Though PW 4 was conscious and in a position to make his statement, it was not recorded till, 15.8.1983 and during this period the investigation of other case proceeded. PW 7 has admitted that he was investigating both Kotwali P.S. Case No. 212 of 1983 and Kotwali P.S. Case No. 213 of 1983. In this background no production of FIR before the Magistrate for complete 7 days is sufficient to cast doubt on the reliability of prosecution specially when no explanation has been assigned for the inordinate delay and for non-production of FIR recorded on 31.7.1983 till 6.8.1983. Reliance has been placed by the appellants on AIR 1980 SC 638, Mamdanal Augusti v. State of Kerala, and (1994) 5 SCC 1888 Maharaj Singh v. State of UP, wherein it has been held that the delay in sending the FIR is fatal for prosecution.
19. The appellants have also submitted that in this background the conviction of the appellants under Section 307/34 of the IPC and sentencing them RI for life and conviction under Section 27, Arms Act, as well as sentencing RI for life is disproportionate. I find substance and force in the argument advanced by the counsel for the appellants specially on this ground that when trial Court disbelieved the story that same bullet which caused injury to PW 4 also hit Ramashankar and came to a definite finding that the prosecution story regarding the firings made by Akshay Lal causing injury to PW 4 as well as Ramashankar Rai causing his death is incorrect then their conviction under Section 307/34, and 27, Arms Act, is not sustainable. The story which has been put by the prosecution before the accused to meet and defend themselves if disbelieved by the Trial Court in that case there should not have been any conviction of the appellants for any 3rd story which was not put before the accused for their defence. The delay in producing the FIR is also unexplained. This delay has not been explained by the prosecution when production of the FIR before the Court immediately after its institution is mandatory under Section 157, Cr PC. The witnesses are also admittedly interested as there is long standing enmity in between the parties and the most important reason for enmity is the institution of Kotwali P.S. Case No. 212 of 1983 in which the informant as well as PW 4 and other family members were made accused. Cumulative effect of all these grounds raise suspicion in the mind that the present case has been instituted as a counter blast in order to create defence in favour of accused of Kotwali P.S. Case No. 212 of 1983 i.e. the prosecution party.
20. Without going into the merit of Kotwali P.S. Case No. 212 of 1983 in sum and substance I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubt and the evidence which is on the record is not sufficient for conviction of the appellants under Section 307/34 IPC. Accordingly the appeal is allowed and the appellants are acquitted of their charge. The appellants are on bail, they are discharged from liabilities of their bail bonds.
Manohar Lal Visa, J.
21. I agree.