PALSHIKAR, J. - (1.) Being aggrieved by the judgment and order of conviction passed by the Additional Sessions Judge No. 2, Udaipur on 18-6-97 convicting the appellants under Sec. 302 of the Indian Penal Code sentencing them to imprisonment for life and a fine of Rs. 500/- each, in default one month's further S. I.
(2.) The prosecution case giving rise to the present appeal stated briefly is that; first information report was lodged in Police Station Kherwada by one Kodar Lal at about 9.00 p.m. alleging that at about 5.30 in the afternoon, one Dinesh told him that Hakra, Narayan and Magan, present appellants, have beaten Nawalji and Mani, wife of the person lodging first information report were severely beaten by the accused-persons and they are lying unconscious. The beating was given on a doubt that the wife of Kodar Lal was a demon and therefore, was a threat to the society. While they were taken to the hospital, Nawali died and the other woman Mani was unconscious, later on she survived. On this report which was registered bearing No. 59/88, the investigation was commenced by the S.H.O. Kherwada. The accused were arrested and on completion of the investigation, the matter was put up before the learned Additional Sessions Judge, Udaipur who examined 14 witnesses in support of the prosecution case and on appreciation of the evidence as led before him, came to a conclusion that the accused-persons were guilty of the offence with which they were charged. He therefore, proceeded to convict them as aforesaid.
(3.) This judgment is assailed by the learned counsel for the accused on the following grounds : (1) The offence is reported to have occurred at 5.30 in the afternoon of 11-4-88 and the first information report has been lodged at 9.00 in the night. There is thus, unreasonable delay in lodging the first information report which gives room for manipulating the case against the accused as also in interpolating their names after premeditation. Since the prosecution has failed to explain the delay in lodging the first information report, the entire investigation thereafter, is vitiated and the prosecution is liable to be disbelieved. (2) Even after the F.I.R. was lodged, unexplained delay is caused in recording the statement of various alleged witnesses as contemplated by Sec. 161 of the Criminal Procedure Code. Further delay in the matter of investigation and recording of statement under Sec. 161 of the Cr. P. C. has given room for manipulation of the statement of the witnesses before the Police as also for scheming implication of the accused persons. In such circumstances according to the learned counsel, the delay, because it is unexplained, is liable to be taken into account for rejecting the prosecution case. (3) From the evidence as disclosed by the 14 witnesses examined by the prosecution, it is pertinent to note that the persons other than those who are related to the deceased were present at the scene of occurrence, some of them though, examined have turned hostile, others have not been examined and only interested witnesses are exa-mined. Hence, relying on their interested testimony which is not duly corroborated by independent witnesses maintaining of conviction is unsustainable in law. (4) Even assuming that the evidence of interested and related witnesses is liable to be considered and accepted on due corroborations interse, the contradictions in the present case are so material as require disbelieving each of these witnesses. (5) It was also submitted by the learned counsel that there certainly was no intention on the part of the accused persons to cause death of the victim and therefore, in the absence of proof that the injury caused by the accused persons were such as were sufficient in the ordinary course of nature to cause death, conviction under Sec. 302 of the Indian Penal Code was unsustainable in law. ;