JUDGMENT :

Rajasekhar Mantha, J.

1. The subject appeal is directed against judgement of conviction dated 16.11.2017 and order of sentence 18.11.2017 passed by the Additional Sessions Judge, Fast Track Court, Berhampore, Murshidabad in Sessions Trial No.2(7)/2016 arising out of the Sessions Serial No.287 of 2001 (483 of 2014).

2. The appellants were convicted under Sections 302 read with Sec. 34, Sec. 326 read with Sec. 34, and Sec. 449 read with Sec. 34 of the Indian Penal Code.

3. Under sections 302/34 of the IPC, the appellants were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.25,000/- each. In default thereof, the appellants were directed to suffer simple imprisonment for another two years. Under sections 326/34 of the IPC, the appellants were sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs.10,000/- each. In default theref, to suffer simple imprisonment for another two years each.

4. Under Sections 449/34 of the IPC, the appellants were sentenced to rigorous imprisonment for ten years and a fine of Rs.10,000/- each. In default thereof, to suffer simple imprisonment for another two years each for the offence punishable. All the sentences were run concurrently.

THE PROSECUTION CASE, THE EVIDENCE ON RECORD, AND THE ANALYSIS OF THIS COURT:-

5. On 13th March, 1996, the victims, Sujauddin and Salam went to the house of Jamal Sk to eat papaya. Jamal Sk’s wife is stated to have offered and cut a papaya to them. At that relevant point of time, the appellants are stated to have entered into the house of Jamal Sk and assaulted the deceased victim/Sujauddin and injured victim PW-7/Salam Sk, with sticks and sharp cutting agricultural implements.

6. The wife of Sujauddin (PW-6) and his mother-in-law are stated to have intervened to stop the appellants from assaulting the said victim. The appellants are stated stated have assaulted the said mother in law on the forehead with a sharp cutting weapon.

7. On a hue and cry being raised by PW-6/Nilufa Bewa, wife of the deceased/Sujauddin, the local villagers assembled thereat. They took the Sujauddin and Salam first to Islampur Hospital and then to Berhampore Hospital. Sujauddin was later shifted to PG hospital at Kolkata, where he died 28 days after the incident. The other injured victim, PW-7/Salam Sk. recovered after 18 days.

8. This Court finds several loopholes in the prosecution case. The FIR was registered by Doulatabad Police Station being No.20/96 on the date of occurrence i.e. 13th March, 1996. The said FIR was however sent to the Magistrate for information on 25th March, 1996. The second investigating officer/PW-9 or the prosecution has not been able to explain the delay. This is is the first major lapse in the prosecution case.

9. The delay in forwarding the information about the registration of an FIR to the Magistrate creates doubt against the prosecution case. The consequences of the said delay has to be considered in light of the eye witness account of the prosecution witnesses. The said delay creates a doubt that the complaint and the FIR may have been filed and registered belatedly and predated. In Ombir Singh v. State of U.P., reported in (2020) 6 SCC 378, it was held as follows:-

4. There was undoubtedly a delay in compliance with Section 157 of the Code, as the FIR was received in the office of the Chief Judicial Magistrate with a delay of 11 days. Effect of delay in compliance with Section 157 of the Code and its legal impact on the trial has been examined by this Court in Jafel Biswas v. State of W.B. [Jafel Biswas v. State of W.B., (2019) 12 SCC 560 : (2019) 4 SCC (Cri) 455] after referring to the earlier case laws, to elucidate as follows : (SCC pp. 565-67, paras 18-21)

“28. It is no doubt true that one of the external checks against ante-dating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR “forthwith” ensures that there is no ma