Inordinate delay in lodging the FIR and non-consideration of defence witnesses' evidence can entitle the accused to the benefit of doubt.

ORDER

1. The appeal challenges the concurrent orders passed by the learned Additional Sessions Judge, Fast Track Court No.V, Arrah in Sessions Trial No.452 of 1998, by which three accused have been convicted for the offences punishable under Sections 498A, 304B and 120B of the Indian Penal Code, 1860 (“the IPC”) and under Section 4 of the Dowry Prohibition Act, and the order passed by the High Court dated 25.03.2010 by which the appeal of the appellants has been dismissed, thereby confirming the conviction and sentence passed by the Trial Court.

2. The Trial Court sentenced the appellants to undergo rigorous imprisonment for three years under Section 498A of the IPC, life imprisonment under Sections 304B and 120B of the IPC and rigorous imprisonment for six months under Section 4 of the Dowry Prohibition Act.

3. Mr. Bhuwan Raj, the learned counsel for the appellants has submitted that the High Court as well as the Trial Court erred in convicting the appellants inasmuch as there is a delay of 8 days in lodging the FIR. He has submitted that the High Court as well as the Trial Court have not at all taken into consideration the evidence of the defence witnesses, which would show that the prosecution case was a fabricated case.

4. Mr. Akshay C. Shrivastava, learned counsel for the State has submitted that the High Court as well as the Trial Court, upon appreciation of the evidence, have held that the prosecution has proved the case beyond reasonable doubt and as such, no interference would be warranted in the facts of the present case.

5. A perusal of the record would reveal that initially on 25.11.1997, a First Information Report for an offence punishable under Section 396 of the IPC, i.e., dacoity came to be registered. The allegation in the said FIR was that some persons had come to the house wherein the original accused and the deceased were residing. They also alleged that in the said firing, the deceased died.

6. After a period of ten days, another First Information Report came to be lodged on 05.12.1997 by Om Prakash, who is the brother of the deceased. In the said FIR, an allegation was made against the accused persons that after marriage, the accused were demanding dowry and on nonfulfilment of demand of dowry, they used to ill-treat the deceased.

7. A perusal of the evidence placed on record would clearly reveal that after the incident occurred on 25.11.1997, the relatives of the deceased were immediately informed and they arrived in the village on the very next day in the morning. Not only that, but all of them participate in the last rites without making any grievance. Only after a period of ten days, the present FIR, out of which the present case arises, came to be registered. The explanation given by the prosecution witnesses, who mostly are the relatives of the deceased, is that they came to know from the villagers after some days that no incident of dacoity had taken place and, therefore, there was a delay in lodging the FIR.

8. No doubt that mere delay in lodging the FIR would not be a ground to reject the prosecution’s case. However, there has to be a proper explanation for an inordinate delay. In the present case, even the Investigating Officer has not been examined. As such, the possibility of the delayed FIR being an afterthought cannot be ruled out. Another fact that needs to be noted is that the first informant – Om Prakash, who is the brother of the deceased, is also an advocate by profession.

9. Another aspect that needs to be considered is that though seven villagers, who were residing in the vicinity of the house where the incident took place, were examined by the defence, neither the High Court nor the Trial Court has even cared to refer to their evidence. It is further to be noted that the statements of all these witnesses were recorded by the prosecution; however, the prosecution chose not to examine them as prosecution witnesses. It is a settled position of law that the defence witnesses are also entitled to