S.K. Sharma and R.K. Mishra, JJ.@mdashNone appeared on behalf of the Appellants on repeated calls to press this appeal at the time of hearing. This appeal is of the year 1989 which relates to the Sessions Trial No. 220 of 1985. In order to expedite the hearing of the appeal, the records of this appeal are being handed over to Mr. Satya Prakash, Amicus Curiae, for hearing.
2. The Appellants Upendra Singh and Ashok Singh alias Ashok Kumar Singh, both sons of Late Ram Narayan Singh of village Moresaray, P.S. Shivasagar, District- Rohtas, have been convicted u/s 396 of the Indian Penal Code and have been sentenced to under go rigorous imprisonment for 14 years each by judgment and order dated 4th July 1989 by the learned Sessions Judge, Sasaram in Sessions Trial No. 220 of 1985. This appeal is against that judgment and order.
3. The prosecution case is based upon the ferdbeyan (exhibit 1) of the informant, Sheoshankar Singh, P.W. 4. According to the informant P.W.4, whose statement was recorded at 9.30 A.M on 5.9.1981 before the officer in-charge of Sheosagar Police Station, in the preceding night at about 12.30, dacoity was committed in the house of his father Harbansh Singh at village Moresaray. It is alleged that in course of dacoity the accused persons took away the households articles from there and also injured the father of the informant, Harbansh Singh. The father of the informant, Harbansh Singh, was taken to the hospital for treatment who later on succumbed to the injuries.
On the basis of the fardbeyan of the informant, a case was registered u/s 394 of the Indian Penal Code against unknown persons vide Sheosagar P.S. Case No. 95 of 1981. The case was investigated by the police and after investigation charge sheet was submitted. After cognizance, the case was committed to the court of sessions for trial where charge was framed and explained to the accused persons who pleaded their innocence saying false implication in this case due to previous enmity. The further defence of the Appellants was that they were not named in the F.I.R which was recorded after nine hours of the occurrence and there was allegation that the informant was not present at the time of occurrence.
4. The Court below after considering the materials on record came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubts and convicted the Appellants u/s 396 of the Indian Penal Code.
5. In order to prove its case, the prosecution examined as many as eight witnesses. They are P.W.1, the mother of the informant and the wife of the deceased, P.W.2 Manorma Devi, the wife of the informant, P.W.4, P.W.3, Hirdeyal Singh, P.W.4 Sheo Shankar Singh, the informant, P.W.5 Birendra Prasad, P.W. 6, Vindhyachal Singh, P.W. 7, Prabha Kumari and P.W.8, Ram Sagar, the advocate, who has mainly proved some documents. The Investigating Officer and the doctor who either treated the injured or conducted the post-mortem examination of the deceased have not been examined in this case.
6. P.W. 3 Hirdeyal Singh and P.W. 6 Vindhachal Singh are hearsay witnesses.
7. P.W. 4, the informant, is an eye witnesses to the occurrence. He has stated that in the night of 4.5.89, he was sleeping on the roof and when the rain started then he came down and slept along his father at Darwaja . Thereafter, his mother had woken up on hulla stating that some dacoits have entered in the house. He saw three persons standing besides him. Out of them, he identified the accused-Appellant, Upendra Singh in the electric light. He has also stated that the dacoits have assaulted him and his father (deceased). The dacoits have also looted away some ornaments, cloths and other movable articles. As a result of assault, his father became unconscious and he brought his father to the Sadar hospital, where he was treated. His father was also referred to Varanasi for advance treatment but in the way, he died.
8.P. Ws. 1, 2, 4 and 7 have supported the prosecution case with regard to dacoity and they have stated that the dacoity was committed in the house of the informants''s father. The attention has been drawn by the learned amicus curiae appearing on behalf of Appellants about the false implication of the Appellants. He submitted that apparently the Appellants are next door neighbors and co-villagers of the informant. The fardbeyan was recorded after nine hours of occurrence and the offence was committed in presence of all the witnesses but there is no explanation as to why the villagers and next door neighbors have not named as accused in the the fard beyan. No doubt, the names of accused have come in course of investigation. There is delay in lodging the F.I.R which creates great suspicion regarding the involvement of the Appellants in the commission of dacoity. The attention has been also drawn towards the fact that the F.I.R witnesses were not examined and there is no explanation as to why they were not examined. The witnesses examined by the prosecution are family members and no independent witness has been examined by the prosecution. Though the informant and other witnesses have named the Appellants in their evidence but strangely the informant has not named the accused-Appellants in his fardbeyan. In the circumstances of the case, this creates a great doubt regarding the participation of the accused- Appellants in the commission of the alleged dacoity and committing the murder of the father of the informant. There is no material on the record to show that the deceased either was sent to the hospital or treated by the doctor. If this fact is considered, it is itself indicative of the fact that the prosecution has withheld vital information which were initially required to produce before the Court. In this case, the doctor either who treated the injured or conducted the post-mortem examination of the deceased were not examined by the prosecution.
9. In the present case, the fardbeyan of the informant was recorded on 5.9.81 at 9.30 A.M. and the F.I.R. was registered at the same time. The F.I.R. was sent to the court on 9.9.1981. There is delay of about 4 days and the F.I.R is against unknown and there is no corroborative explanation in this regard. The delay of sending the F.I.R. in court creates a great suspicion with regard to the manner of occurrence.
10. Chapter-XII of the Code of Criminal Procedure deals with the information sent to the police and their powers to investigate the case. Section 157 of the Code of Criminal Procedure mandates that if the information of occurrence is received then the police has to send a report "forthwith" to the Magistrate empowering him to take cognizance. Section 157 of the Code of Criminal Procedure casts such duty upon the Investigating Officer to forthwith send the report of the cognizable offence to the nearest Magistrate which is empowered to take cognizance. The purpose of this Section is that the Magistrate taking cognizance be made aware of an occurrence without delay. If the delay is too much then it casts grave suspicion regarding the authenticity of the prosecution case. The delay in sending the F.I.R to the court is not vital and the delay of several days can be condoned but for that the prosecution has to establish that there were no latches on its behalf and it has occurred due to some unavoidable reason. In the present case, the prosecution has failed to show the reason of such delay in sending the F.I.R to the court.
11. Another glaring fact of the case is that the accused-Appellant No. 2, Ashok Singh @ Ashok Kumar Singh has been assessed to be 24 years in June 1989. The occurrence is of the year 1981. After eight years of the occurrence his age was assessed to be 24 years. It means on the alleged date of occurrence his age was 16 years. The F.I.R was registered against unknown and the copy of F. I.R was received in the court on 9.9.1981, i.e., after 4 days of occurrence. It also appears that the Investigating Officer and doctor have not been examined by the prosecution.
12. In view of the aforesaid fact, this Court finds that the prosecution has not been able to prove the case against the Appellants beyond all reasonable doubts. Therefore, the Appellants are entitled to get the benefit of doubt.
13. In the result, the judgment of conviction and order of sentence passed against the Appellants are set aside and the appeal is allowed. The Appellants are acquitted of the charges and they are discharged from the liabilities of their bail bonds.
Let a copy of this judgment be handed over to Mr. Satya Prakash, Amicus Curiae, who has appeared on behalf of the Appellants in this appeal.
