Delay in sending FIR to magistrate alone cannot justify conclusion that investigation was tainted.

NAGENDRA RAI, J.

1. This appeal arises out of a judgment of conviction dated 5-5-1989, passed by the Addl. Sessions Judge-II, Barh, Patna, in Sessions Trial No. 619/88, by which the appellant Sheo Narain Gope has been convicted under Sections 302, 380 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, two years and one year, respectively. He has also been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. The other three appellants, namely, Ramashray Gope, Binod Gope and Anuj Gope have been convicted under Sections 302/149 and 380 of the Indian Penal Code and sentenced to undergo rigorous imprison ment for life and two years, respectively. Appellant Binod Kumar Gope has been further convicted under Section 148, I.P.C. and Section 27 of the Arms Act and sentenced to undergo one year rigorous imprisonment under each count. Appellants Ramashray Gope and Anuj Gope have been further convicted under Section 147, I.P.C. and sentenced to undergo rigorous imprisonment for one year. All the aforesaid four appellants have been convicted under Section 452, I.P.C. but no separate sentence has been awarded to any of them. All the sentences awarded against the appellants have been ordered to run concurrently.

2. Appellants Sheo Narain Gope and Ramashray Gope are own brothers and, similarly, Binod Gope and Anuj Gope are own brothers.

3. The occurrence took place in the night between 21st and 22nd of February, 1988, at village Gawasa Shekhpura Beldari Tola, P. S. Pandara in the district of Patna. The informant Bishundeo Chauhan (P.W. 11) was sleeping in his Khalihan which is near his house in a Khatia Palani and his brother Chanirak (deceased) was sleeping in the southern side of the same Khalihan in another Palani. At about 12 in the mid night 10-12 persons came near the house of the informent, out of them five persons went towards the Khalihan where Chanirak Chauhan was sleeping and brought Chanirak near the place where the informant was sleeping. There was a scuffle in between Chanirak and the accused persons, as a result of which the informant woke up and noticed that Sheo Narain Gope and Binod Gope both were armed with guns, Ramashray Gope, Anuj Gope and acquitted accused Haran Gope were armed with lathis. The informant raised hulla that his brother was being killed. In the meantime, appellant Sheo Narain Gope fired his gun at his brother Chanirak Chauhan as a result of which he fell down. On hearing the sound of gun-fire the informants brothers wife Gulabi Devi (P.W. 2) opened the door of the house and raised hulla. Thereafter all the five accused entered into the house and assaulted his brothers wife (Bhaujai) by foot and removed five boxes containing clothes, ornaments and cash of Rs. 10 or 12 thousands from the house. Gulabi Devi (P.W. 2) and Kapil Chauhan (P.W. 4) also saw them in the light of the Torch flashed by them. The dacoits, while retreating, exploded, bombs and indulged in firing. All the accused persons had concealed their faces with Gamchha.

4. The motive for the occurrence, according to the prosecution was that two years prior to the occurrence there was an exhange of blows (Marpit) between the informants elder brother Ram-Nandan Chauhan (P.W. 1) and the accused persons. Thereafter, two months prior to the occurrence, the accused persons had assaulted Ram Swaroop Chauhan, cousin brother of the informant, in Punarak Khandha north of the Baniyan tree. The immediate motive for the occurrence was that 5-6 days prior to the occurrence, Krishnanand Beldar (P.W. 3) had removed a handful of peas (Kerao) from the field of acquitted accused Haran Gope for the purpose of eating and for that appellant Anuj Gope gave him two lathi blows and in turn the aforesaid Krishnanand Beldar also gave him a lathi blow. In the evening of the same day, the accused persons brought Krishnanand Beldar to their house and tied him with the pillar. After