S.N. Deedwania, J.
1. Appellant Ganga has preferred this jail appeal against the judgment of learned Sessions Judge, Udaipur dated January 9,1979 for his conviction and sentence of four years rigorous imprisonment under Section 304 (II) IPC.
2. Briefly the facts as alleged by the prosecution were these. 15 or 20 days before 31-3-1978 deceased Lala and his brother Bheema were returning to their house in the after noon. Their filed is also situated near their house, Chunki wife of Lala was setting beneath a tree, Appellant Ganga and two co-accused Vala and Keeka met them. Vala demanded his loan Rs. 60/- from Ganga but the latter refused to pay and this led to a quarrel. Keeka and Vala caught hold of hands of Lala and Ganga from the blunt side of an axe gave an injury to the head of Lala. After some days of the incident on 30-3-1978 Lala died as a result of this injury. Bheema made a report Ex. D.2 in the police which led to the inquest proceedings under Section 174 Cr. PC. PW 7 Sabir Ali, SHO police Station, Ogna came to the village and prepared inquest memo of the dead body of Lala. He recorded the statement Ex P. 1 of Chunki and of, its basis registered a case under Section 302 IPC against the appellant and the other two accused The SHO saw the site and prepared site inspection plan and also got conducted the post-mortem of the dead body He arrested the appellant and the other two co-accused After completing the investigation a charge sheet was filed in the court of Munsif and Judicial Magistrate, Ist Class, Kotara. who committed the case to the Sessions. The learned Sessions Judge acquitted the appellant and the other two accused for the offence under Sections 302 and 302/24 IPC respectively. However, appellant Ganga was convicted in the aforesaid manner. '
3. Shri Doongar Singh appeared for the appellant. I have heard the learned Counsel for the appellant and the learned APP and perused the record of the case. It was argued by the learned Counsel for the appellant that M t. Chunki and Bheema are intersted witnesses. They falsely implicated co-accused Vala and Keeka who were acquitted by the learned Sessions Judge. The FIR of the incident was filed after inorainate delay which is fatal to the prosecution case. Bheema even after a delay of 15-20 days filed a report Ex.D.2 in the police alleging that Lala died as a result of an accident. This conduct of Bheema raises a great suspicion on the prosecution case. It is alleged that Lala made a dying declaration to Manna, Pema and Nagga but Pema and Nagga were not examined to prove the dying declaration. I have considered the contentions carefully.
4. In my opinion the prosecution evidence cannot be belived in view of the extra ordinary delay in lodging the FIR Chunki or Bheema did not give any plausible explanation for this delay in lodging the FIR. PW 3 Chunki stated that none was avilable to lodge the FIR because there was a warrant against Bheema. This explanation given by the witness does not inspire confidence. After the death of Lala, Bheema did go to the police station. Chunki could have sought the help of any of any person for lodging the report or she herself could have gone to the police station. PW 1 Bheema stated that because of the warrant he did not go to the police station to lodge the report. In the cross examination he stated that he and Mara were going to lodge the report, but Garga threatened him From this it appears hat the witness bad no (sic) of the warrant but was rather prevented from going to the police station by the threat of Ganga. This explanation is unnatural and does not inspire confidence. That apart the conduct of the witness in giving report Ex D 2 also detracts from the credence of his evidence. In Ex.D 2 it is written that the deceased Lala received an injury because of a fall. He was treated for 25 days and he had died today. It appears that the appellant was not properly defended in the trial court and witness Bheema was rot confronted with Ex.D 2 However, the fact remains that Bheema submitted Ex D 2 at the police station as is evident from the testimony of PW 7 Sabir Ali. This conduct of Bheema therefore, destroys his credibility altogether. That apart Chunki and Bheema are not the witnesses of absolute truth in as much as they tried to falsely implicate co-accused Vala and Keeka.
5. About the dying declaration suffice it to say that only Pema was produced and the prosecution has given no explanation for the non-production of the other two witnesses namely Manna and Nagga. Chunki had not stated anything about the dying declaration and so also PW 1 Bheema. In such circumstances the solitary statement of Puma is insufficient to prove the dying declaration of Lala. In my opinion the learned Sessions Judge did not give due importance to the aforesaid infirmities in the prosecution case and lightly pushed aside the fact of delay in lodging the FIR and also did not consider the conduct of Bheema in lodging the report Ex D 2 at the police station. I am, therefore, of the opinion that it is net safe to base any conviction on the testimony of Chunki and Bheema. In the aforesaid circumstances, the appellant is entitled to benefit of doubt.
6. In the result the appeal is accepted and the judgment of the learned Sessions Judge is set aside and appellant Ganga is acquitted of the offence under Section 304(2) IPC. The appellant is in jail and he shall be released forthwith, if not required in connection with any other case.