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2. The incident in question took place at about 9-30 p.m. on the night of 2-5-1988 at Kumbhar Galli Chowk, Rajgalikhurd. It is alleged that there was some dispute going on in the Kumbhar Family with regard to the occupation of the family house. Pursuant to that dispute, it is alleged that the deceased Jotiba on that night after completing his dinner made his way from his house to the Chowk where a panshop was located. The Accused, who are also from the same clan, are alleged to have followed him and mercilessly assaulted him. Accused No. 1 is alleged to have used a stick. Accused No. 2. Koyta and Accused No. 3 a knife. The prosecution witnesses allege that these three persons assaulted Jotiba with the weapons in question as a result of which there was a commotion. According to the witnesses, accused Nos. 4, 5 and 6 were instigating accused Nos. 1, 2 and 3 to continue to assult and not to leave Jotiba alive. Jotiba's wife Shantava (PW 7) and his mother Gangavva (PW 10) had rushed to that spot on hearing the commotion and they allege that in trying to rescue Jotiba they had also sustained certain injuries. According to the witnesses, Jotiba died on the spot and, therefore, there was no question of taking him anywhere for medical assistance. It is also contended that the matter was reported to the Police Patil, but since the village in question was located in a relatively remote area that it was only in the next morning that the witnesses could make their way to the Police Station and the First Information Report was lodged at 11-15 a.m. on the next day, i.e. after 14 hours. The Police thereafter commenced their investigations and arrested the six accused persons. According to the prosecution, in the course of the investigation, accused No. 2 made a statement that he would produce certain weapons and pursuant to the statement he led the Police and the Panchas to a particular place in the farmland from where the stick, the sickle and the knife were produced. There is, however, no evidence to indicate that these weapons were sent for chemical analysis. On completion of the investigations, the six accused were put up for trial and the learned Additional Sessions Judge, Kolhapur framed charges against them under sections 302, 325 and 324 read with Section 149, of the Indian Penal Code.

3. The defence of the accused was one of total denial. According to them, the deceased Jotiba, who owned a panshop, used to also sell soda-water from his shop and that persons who were given to the consumption of alcohol used to frequent that place and it is alleged that in the course of some dispute including the persons who were already drunk that Jotiba came to be assulted and that because of the background of the house dispute, Jotiba's relatives had falsely implicated the accused. The learned trial Judge disbelieved the evidence and convicted all the six accused under Section 302, read with Section 149, of the Indian Penal Code and awarded them a sentence of imprisonment for life and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for three months as also under section 324, read with Section 149, of the Indian Penal Code and awarded to each of them rigorous imprisonment for six months and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for one month. It is against this set of conviction and sentences that the present appeal has been directed. We may mention at this stage that accused Nos. 4 and 5 were granted bail by this Court at the time of the admission of the appeal, apart from other reasons, because they were women. Accused No. 6, who was an old man, died in the Jail and hence as far as he is concerned, the appeal abates. Accused Nos. 1, 2 and 3 continue to be in custody and we, therefore, restrict the consideration of this appeal to original accused Nos. 1 to 5 only.

4. Shri Pradhan, learned Counsel appearing on behalf of the appellants, has taken us through the entire evidence in this case which consists of as many as eleven witnesses, apart from the Investigating Officers. Most of these persons, as we have indicated, are family members and relatives and are persons residing in that area itself. We refrain from reproducing the details of the evidence of these witnesses, principally, because it follows a common pattern. They allege that accused No. 1 assulted the deceased Jotiba with a stick, accused No. 2 with a Koyta and accused No. 3 with a knife, that these were the three persons who were taking part in the assault, that accused Nos. 4 and 5, as also accused No. 6, were actively instigating them, goading them on and kept on insisting that Jotiba should he beaten up until every sign of life in him was extiguished. The cross-examination of these witnesses does not yield anything substantial from which it could be safely concluded that their evidence lacks total credibility. From this angle, therefore, Shri Pradhan has concentrated his attack on pointing out within aspects of the matter to us which are of some consequence. He stated that, admittedly, the first information report was lodged at 11-15 a.m. on the next morning, which was about fourteen hours after the incident, and even if there was a valid ground for the delay that the prosecution has not tendered any such explanation, which is a legal must. He therefore, submitted that the first information report that has been lodged by the wife Shantavva (PW 7) is necessarily suspect. As pointed out to us that in the background of hostility that existed between the two factions that there was every possibility and, in fact, a strong probability that the persons would have falsely implicated the accused. He demonstrated to us that in the first information report, the names of accused Nos. 4 and 5, do not appear. It is true that in the evidence before the Court, necessary steps have been taken to ensure that accused Nos. 4 and 5 are specifically mentioned as the persons who were instigating the other accused. However, the fact remains that their names do not appear in the first information report. Shri Pradhan, therefore, vehemently submitted that as far as they are concerned, it would be wrong and impermissible to hold that they were, in fact, the participants in the incident. On probability, he submitted that even if the manfolk were to get into a physical quarrel that it would be too much to expect that the woman would instigate them in a murderous assult.

5. Shri Palekar, the learned A.P.P., has sought to explain away the time factor by stating, on instructions, that there was virtually no means of transport available to the poor villagers and that the matter was reported to the Police Patil on the same night. He submitted that the distance was something like 35 Kms. away from the Police Station and that, therefore, the delay should not come in the way of the prosecution. We do need to record here that the sacred duty of the prosecution is a duty which has to be discharged before the trial Court and not the Appeal Court and that any valid or cogent explanation that may be available or valid ground on which important factors like delay can be offset must be placed before the trial Court. Long delay in the lodging of first information report is almost a fatal circumstance in a criminal prosecution. Having regard to the generality of the situation, however, we accept the position that the remoteness of the area could have contributed to some delay, but we cannot overlook the fact that undisputedly the villagers, and particularly the family members, must have been in consultation with each other and we, therefore, cannot rule out the possibility of accused Nos. 4 and 5 having wrongly been implicated. The same would apply to original accused No. 6, to whom no overt act is attributed specifically as far as the assult is concerned but who is also mentioned as one of the instigators obviously because he was the elder member of that faction. Having regard to this situation, we do consider that it will be necessary in law to give the benefit of doubt to original accused Nos. 4 and 5 in the peculiar and special circumstances of this case.