S.S. Dewan, J.
1. Kamaljit Singh aged 25 years and Piare Lal aged 20 years, residents of Hoshiarpur were brought to trial for committing the murder of Jag-dish Rai. Both of them stand convicted under Section 302 read with Section 34 Indian Penal Code and each of them has been sentenced to life imprisonment and a fine of Rs. 1,000, in default to undergo rigorous imprisonment for one year. Piare Lal filed Cr. Appeal No. 1113 of 1977 against the same judgment and as such this judgment will dispose of both the appeals.
2. The prosecution story, in short, is that Ram Parkash Manchanda (P. W. 5) was the neighbour of Jagdish Rai deceased. The deceased used to reside with his father and brother Om Parkash. On the fateful day, i. e., 25-12-1976 at about 8.15 p. m. Ram Parkash p. W. was present in his house. He heard noise outside in the street when somebody was raising alarm 'Bachao, Bachao'. Hearing this he came out of his house and saw two persons, both the accused were grappling with' Jagdish Rai deceased. The street light was on at the time of occurrence. On seeing this, he went to the spot and spoke out as to who was grappling with Jagdish Rai. While he did so, he heard the fire report and soon after both the accused made good their escape. Jagdish Rai slumped on the ground and in the meanwhile Jiwan Dass, father and Om Parkash brother of the deceased came out of their house and they carried Jagdish Rai to the hospital on a cot with the aid of two other persons. Ram Parkash went to Police Station City, Hoshiarpur and lodged the F.I.R. Ex. PG with S. I. Jaikaran Dass at 8.30 p. m. Diwan Dass remained at the spot to guard the place of occurrence.
3. Sub-Inspector Jaikaran Dass (P. W. 14) is the investigating officer. He went to the place of occurrence at about 9.05 p. m. and prepared its visual plan Ex. PN/1. He lifted blood-stained earth and also recovered jhola (Ex. P.11) and left fellow of shoe (Ex. P10) from the spot. Jagdish Rai succumbed to his injuries in the hospital. S. I. Jaikaran Dass went to the hospital, held inquest Ex. PC and sent the dead body to the mortuary for autopsy. During the investigation one Ashok alias Kara and Ghambal Singh were arrested and interrogated. The accused were searched for but they were not available. They were, however, arrested on 15-1-1977 and 1-4-1977 respectively. Test identification parade for identifying the accused was arranged on 21-1-1977 and 12-4-1977 but they refused to be identified. On interrogation by the investigating officer, Piare Lal suffered disclosure statement leading to the recovery of right fellow of shoe (Ex. P. 13) from the specified place of concealment. On interrogation by the A. S. I. Kewal Krishan (P. W. 15), Piare Lal suffered disclosure statement Ex. PO and he got recovered a pistol (Ex. P14), one empty cartridge (Ex. P16) and a live cartridge (Ex. P. 15) from the specified place of concealment and the same were taken into possession vide memo Ex. PO/1.
4. Dr. K. K. Sharma (P. W. 2) conducted autopsy on the dead body of Jag-dish Rai on 26-12-1976 at 10.40 p. m. and found the following injuries:
(1) Wound of entry : Lacerated penetrating wound with inverted edges over the anterior aspect of left arm measuring 0.8 cms. x 0.8 cms. in size, 3 cms. lateral to anterior axillary fold and 10 cms. below the top of the left shoulder L e,, the tip of the acromion process.
(2) Wound of exit : Lacerated irregular wound with averted margins 2 cms. x 1.5 cms. size, penetrating, over the back of right chest 5 cms. below and in the line with the interior angle of the right scapula.
(3) Surgical emphysema was present over the left side of chest wall over the lateral side of chest below the left axilla. Stomach contained about 2 ozs. of semi-digested food and large intestines contained faecal matter. Death was opined to be due to shock and haemorrhage resulting from injuries which were sufficient to cause death in the ordinary course of nature. The probable tune that elapsed between injuries and death was instantaneous and between death and post-mortem within 12 to 24 hours. After completion of the investigation, the accused were challaned and committed.
5. The prosecution examined 19 witnesses including Ram Parkash Manchanda (P. W. 5) and Jiwan Dass (P. W. 6) who deposed to the Jacts recapitulate ed above. Inspector Iqbal Singh (P. W. It) arid A. S. I. Kewal Krishan (P. W. 15) deposed to the investigation part of the prosecution case.
6. When the .accused were examined under Section 313, Code of Criminal Procedure, they denied the prosecution allegations and pleaded false complicity in this case. Ram Parkash (D. W. 1) and Jaiwanti (D. W. 2) were examined by the accused in defence.
7. The trial court on the basis of the material placed before it convicted and sentenced the accused as indicated above and hence the appeals at their instance.
8. The facts enumerated above make it clear that the crucial question that has to be determined in this case is whether the evidence of P. W. 5 Ram Parkash and P. W. 6 Jiwan Dass, father of Jagdish Rai deceased can be relied upon for the purpose of convicting the appellants. They along with Om Parkash, brother of the deceased are the only three witnesses who, according to the prosecution, actually witnessed the murder of Jagdish Rai and saw the appellants. According to Ram Parkash P. W-, he heard the noise outside in the street when somebody was raising alarm 'Bachao, bachao'. Hearing this he came out of his house and saw that two persons were grappling with Jagdish Rai and on seeing this he spoke out as to who was grappling with Jagdish Rai and in the meanwhile he heard the fire-report and soon after both the assailants made good their escape. The witness maintained that Jagdish Rai slumped on the ground and became unconscious and in the meanwhile Jiwan Dass and Om Parkash came out of their house and arrived at the spot. Ram Parkash claimed to have seen this incident in the street light from a distance of about 8/10 feet. Jiwan Dass P. W, has made prevaricating statements. He states that he identified Jagdish Rai deceased at the spot and before that he was not sure of the person with whom the culprits were grappling. He stated for the first time at the trial that the electric light was on at the alleged time of occurrence. Ram Parkash P. W. stated 'that after the occurrence, the assailants led away towards the North whereas according to Jiwan Dass P. W. the assailants fled away towards the West. This serious conflict in the evidence : on this point raises a grave doubt even - about the presence of these witnesses at the spot. How strange It is that they saw' the assailants but made no attempt to secure then. Therefore, we had these witnesses do not stand, the necessary of judicial scrutiny and we are left with the impression that they are not trustworthy witnesses.
9. The next question that we are called upon to determine in this case is whether the appellants have been proved to be the assailants of the deceased. We have no hesitation in saying that if the evidence of identification is satisfactory and leaves no doubt that the witnesses who claimed to have identified the assailants must have done so, there is no reason why conviction should not be recorded merely on the strength of that evidence. The trouble, however, in this case is that the evidence on the basis of which we are asked to hold that the appellants were identified by the witnesses is not very satisfactory. It is necessary to point out that in the case of this kind when Piare Lal appellant was arrested after 21 days and Kamaljit Singh appellant was arrested 4 months and 6 days of the occurrence it was necessary for the prosecution to bring on record the circumstances which led them think or suspect that they were the assailants. But unfortunately the prosecution did not pay any attention to this aspect of the case. The other important factor of which mention need be made is that no explanation whatsoever was forthcoming why the identification parade was not held immediately after the appellants were arrested. As it has been observed above, Piare Lal was arrested on 15-1-1977. The application for holding the identification parade was made on 16th and the identification parade was arranged on 21st. Kamaljit Singh was arrested on 1-4-1977, while the identification parade was arranged on 12-4-1977. The appellants declined to join the identification parade as they claimed to have been shown to the witnesses. In view of the facts mentioned above we are not prepared to hold that this contention is wholly devoid of force. In a case which depends entirely on identification of an accused person in a parade held for the purpose, the prosecution must prove by evidence that the parade was held without any unnecessary delay and that the witnesses who picked him out in the parade as a culprit had no opportunity of seeing him at any time after the incident and before the parade. Evidence of this kind is not a mere formality but is indispensable to establish the identity of the accused and when such evidence is not forthcoming, the benefit of the omission must be given to the accused.
10. There is one more circumstance that militates against the prosecution (that) is that Jiwan Dass P. W. has categorically stated that his son Jagdish Rai deceased did not take his meals before the occurrence. On the other hand, medical evidence indicates the presence of 2 ozs. of semi-digested food in the stomach of the deceased. Considering the state of the stomach contents it appears that the death had taken place after 2/3 hours of the taking of the meals and not earlier. This supports the contention of the learned Counsel for the appellants that the occurrence had taken place much later than 8.15 p. m. and not as alleged by the prosecution.
11. Lastly it was contended by the learned Counsel that the F.I.R. which is stated to have been, lodged at 8.30 p. m. on 25-12-1976 was sent out from the police station the next day, December 26, the time when it was despatched is not stated but it appears from the record that the Magistrate received it on the morning of December 26. The Court of the Magistrate was nearby which makes it difficult to understand why the report was sent to him after about 10 hours of the lodging of the F.I.R. Section 157 of the Code of Criminal Procedure requires the first information report to be sent 'forthwith' to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as the learned Counsel suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishment and set up distorted version of the occurrence.
12. For the reasons indicated above, we find that the testimony of Ram Parkash and Jiwan Dass P. Ws. cannot be sufficiently relied upon and on its basis, the case cannot be held to have been established beyond doubt. Consequently we allow these appeals and setting aside the conviction and sentences of the appellants, acquit them.