IMPORTANT POINT
It is true that the delay in the despatch of the First Information Report is not always a circumstance on the basis of which the entire prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences.

Headnote:(i) Appeal against conviction - Murder case - Supreme Court is slow to disturb a concurrent finding of fact unless it is shown that the finding is manifestly erroneous, clearly unreasonable, unjust or illegal or violative of some fundamental rule of procedure or natural justice. The Court to scrutinise the evidence with more, than ordinary care. (Para 14)
       (ii) Indian Penal Code, 1860 - Sections 302,394 and 411 - Convictions under. Appeal - Material witnesses are all relatives of the deceased - Fard-beyan and the F.I.R. recorded on that basis not lodged/recorded at the time and hour mentioned in F.I.R. - Neither fard-beyan nor F.I.R. were recorded till the police raided the house of the appellant and seized the articles - Inherent improbabilities and infirmities - Sending of occurrence report to the Magistrate on the 3rd day of the occurrence No material to show that it was actually dispatched and received by the Magistrate and if so on what date and time - Articles seized on 20.7.1985 - They were put to identification on 29.8.1985 - Evidence that the appellants had stayed in the night at the house of deceased is shaky and inconclusive - Finding recorded by the trial Court and High Court holding the appellants guilty of the offences charged with is erroneous and unsustainable - Judgments of conviction set aside. (Paras 20 to 31)
       (iii) Delay - F.I.R. dispatched on 3rd day of occurrence - Not always fatal. (Cr. P.C. - Sec. 157)
       Held, that the report was not sent forthwith, in other words immediately and without delay as the incident had occurred in the intervening night of 19/20.7.1985 and according 10 Doman, P.W. 10 the officer-incharge of the Police Station, the F.I.R. was already recorded in the morning of 20.7.1985. If in fact the F.I.R. was already recorded in the morning of 20.7.1985 there was no reason not 10 dispatch the same to the Magistrate concerned till 22.7.1985. Though there is no material on record to show as to why delayed report was sent to the Magistrate on 22.7.1985 but the learned counsel appearing for the respondent State submitted at the Bar that the Investigating Officer remained busy in the investigation on 20.7.1985 which was Saturday and since 21.7.1985 was Sunday the report was sent on Monday, the 22.7.1985. He submitted that in Bihar State even in murder cases F.I.R. is never sent to the residence of a Magistrate on Sundays and holidays. If that be so, we are afraid such a practice can never be said to be healthy practice which renders the mandatory provision nugatory. If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should woke up and see that the provisions of Section 157 Cr. P.C. are complied with in letter and spirit. (Para 23)
       Result: Appeals allowed.

JUDGMENT

Faizan Uddin, J. - The judgment delivered in this appeal will also govern the disposal of Criminal Appeal No. 368/92 which is an appeal preferred through Jail Superintendent by the same convicts against the same judgment which is under challenge in Criminal Appeal No. 367/92.

2. The appellant No. 2 and 3, namely, Mulo Marik and Bansi Marik are sons of appellant No.1, Arjun Marik. The three appellants were charged and tried for murders of Sitaram, his wife Smt Kamakhya Devi and their grand-daughter Sugwa Kumari in their house situated at Chaitanya Nath, Jajware Path, Deoghar within the jurisdiction Of Police Station Deoghar (State of Bihar), in the intervening night of 19th and 20th July, 1985. It was alleged that the appellants after committing murders of three persons named above committed the robbery of the ornaments, cash and other belongings of the deceased which during the course of investigation were seized from their possession from their house on 20th July, 1985. The appellants were, therefore, charged and tried under Sections 302, 394 and 411 of the Penal Code. Learned Additional Sessions Judge, Deoghar convicted the three appellants under Section 302 of the Penal Code and sentence them 10 death. The appellants were also convicted under Sections 394 and 411 of the I.P.C. for which they were sentenced to suffer rigorous imprisonment for 10 years and 3 years respectively. The substantive sentence awarded under Sections 394 and 411 were directed to run concurrently. After the conviction and sentence of death the learned Additional Sessions Judge made a reference to the High Court for confirmation of the death sentence. At the same time the appellants also challenged their conviction and sentence in an appeal before the High Court. The Criminal Appeal preferred by the appellants was dismissed whereas the sentence of death awarded by the learned Additional Sessions Judge was confirmed by the High Court. On Special leave being granted the three appellants name above have preferred this appeal.

3. The prosecution case as it emerges from a Fard-beyan, Exh. 3 made by the informant, Surnath Jha, P.W. 6 one of the nephews of the deceased Sitaram is that deceased Sitaram and his deceased wife, Kamakhya Devi were issueless and, therefore, they had kept with them their grand-daughter deceased Kumari Sugwa. The deceased Sitaram was carrying money lending business and amongst others had advanced loan to the appellant, Arjun Marik. On 19.7.1985 between 7 and 8 P.M. the appellant Arjun Marik accompanied with his two sons the appellant Nos. 2 and 3, namely, Bansi Marik and Mulo Marik came to the house of Sitaram to raise further Joan to purchase buffaloes. The deceased Sitaram was not agreeable to advance him further loan as he had advanced him Rs; 10,000/- about two months back for purchasing the buffaloes. Sitaram, therefore, insisted upon the appellant Arjun Marik to settle the old accounts first. But Arjun Marik continued to pursuade him to advance the loan on which Sitaram told him that his accounts would be settled next morning. It is said that the three appellants stayed at the house of the deceased Sitaram and the deceased Kumari Sugwa served them meals in the night. The three appellants were lodged in a room on the upper story of the house for the over-night stay while Sitaram slept on a cot in the varandah adjacent to the said room. The deceased Kamakhya Devi, wife of Sitaram and his grand-daughter, Kumari Sugwa slept in the varandah on the ground floor. Thereafter, the informant Surnath Jha, P.W. 6 went away to his own house situated just adjacent to the house of Sitaram.

4. Next day early morning at about 6 A.M. when Kumari Manju Devi, P.W. 7 and some other girls went to the house of Sitaram to fetch water from lie water tap they witnessed Smt. Kainakhya Devi and Kumari Sugwa lying dead in a pool of blood and, therefore, they raised an alarm attracting Murlidhar Jha, P.W. I, Govind Charan Jha, P.W. 2, Sushil Prasad

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SUPREME COURT OF INDIAA.S. Anand and Faizan Uddin, JJ.Arjun Marik & Ors. - AppellantsversusState of Bihar - RespondentCriminal Appeal No. 367-1992 With Crl. A. No. 368/92Both Decided on 2.3.1994

SUPREME COURT OF INDIA
A.S. Anand and Faizan Uddin, JJ.
Arjun Marik & Ors. - Appellants
versus
State of Bihar - Respondent
Criminal Appeal No. 367-1992
With Crl. A. No. 368/92
Both Decided on 2.3.1994