Delay in lodging FIR, inordinate delay in sending FIR to court, suspicious FIR, unreliable prosecution witnesses, improper recovery of evidence can lead to the acquittal of the accused.

JUDGMENT

Narendra Singh Dhaddha, J. - Appellant has filed this appeal challenging the conviction and sentence as ordered by the learned Trial Court vide judgment & order dated 07.10.2016 for offence u/s 302 IPC.

2. Prosecution case was set in motion on the basis of report (Ex.P-1) lodged by complainant Shankar Lal. On the basis of the said report (Ex.P-1), a formal FIR No.426/2012 dated 27.11.2012 was registered at Police Station Sri Madhopur, District Sikar for offence punishable under Section 302 IPC.

3. Prosecution story, in brief, was that on 27.11.2012 at about 8.00 AM, deceased Girdhari had gone to answer the call of nature in Johda (Grass land). At that time, Chhoturam S/o Shri Manglaram, Murliram S/o Manglaram, Jhabar, Dholuram @ Daulatram, Sohanlal, Subhash sons of Shri Chhoturam, Sumitra W/o Jhabar Mal, Santoshi W/o Dholuram @ Daulat Ram, Gulabi Devi W/o Chhoturam and Subhash, Santosh Sons of Chhoturam and wives of both - all by caste, Sumitra D/o Chhoturam wife of Devilal and Devilal (son-law of Chhoturam) etc. came with stick and axe in their hands. They surrounded deceased Girdhari and inflicted injuries on his body with the weapons which were in their hands. As a result, deceased Girdhari received grievous injuries on his skull and other parts of the body. Deceased Girdhari was taken to the hospital at Sri Madhopur. Condition of the deceased was serious, so he was referred to SMS Hospital, Jaipur where he was admitted. Ultimately, he was died due to grievous injuries caused by the above named persons.

4. After completion of investigation and necessary formalities, challan was presented against the appellant and charge under Section 302 IPC was framed against him. The appellant did not plead guilt to the charge framed against him and claimed trial.

5. In order to prove its case, prosecution examined 20 witnesses during trial. Appellant when examined under Section 313 Cr.P.C. prayed that he was innocent and falsely involved in this case. The appellant examined two witnesses in defence.

6. Shri Biri Singh Sinsinwar, learned Senior Counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. The incident had taken place in the morning on 27.11.2012 at about 8:00 AM. Typed report was submitted at 10:45 P.M. after more than 15 hours. There is no explanation about delay. He also submitted that the said report reached in the Court on 29.11.2012 at about 10:30 AM. The prosecution had not explained inordinate delay in sending the report to the Court. He also submitted that in the police proceedings, FIR number was previously mentioned as 427/2012 but later on, it was corrected as 426/2012. There is no explanation of over writing in the police proceedings. He also submitted that Sub-Inspector Pawan Kumar (PW-20) had prepared inquest report of dead body (Ex.P-3), recovery memo of dead body (Ex.P-4) and seizure memo of clothes (Ex.P-19) on 28.11.2012. These documents did not bear FIR number. He also admitted in his cross-examination that at the time of preparing these documents, FIR was not lodged. So, it is crystal clear that FIR was not lodged on 27.11.2012. It was lodged after manipulation. So, the FIR is suspicious. Therefore, whole prosecution story is not believable.

7. Learned Senior Counsel appearing for the appellant submitted that no motive has been mentioned in the FIR about the crime and there was no specific allegation against the accused appellant to inflict injury to the deceased. FIR is exaggerated and it reveals general allegation against 12 persons including the appellant. Names of the eye witnesses were not mentioned in the FIR. Witnesses Rudmal (PW-2), Suman (PW-4) and Bodu Ram (PW-6) were later on introduced as eye witnesses. They were relatives of the complainant. Therefore, they were interested witnesses and no credibility could be attached to them. He also submitted that independent witnesses - Jaman Lal (PW-7) Kesar Mal (PW-8) did not support the prosecution story.

8. L