The importance of prompt lodging of the FIR and the need for a satisfactory explanation for any delay.

JUDGMENT :

1. Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 19.07.2003, passed by learned 3rd Additional District & Sessions Judge (Fast Track Court), Jamtara, in Sessions Case No. 510 of 1992/ 35 of 2003, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code, R.I. for 4 years under Section 325 of the IPC and further fine of Rs.2,000/- each and in default thereof; further to undergo SI for three months, and the sentences were directed to run concurrently.

3. The prosecution case in brief is that on 28.10.1990 at about 10 P.M. the appellants along with Avinash Murmu (deceased) came to the appellant armed with rod, lathi and tangi and assaulted the informant, his wife and his mother. When he raised alarm persons of vicinity came to help and seeing this, the appellants fled away.

4. Mr. Rajeeva Sharma, learned senior counsel for the appellants and Mr. Sabyasanchi, learned amicus appointed by this Court for the appellants assail the impugned judgment on the following grounds:

i) There is a delay in lodging FIR by 18 days inasmuch as, as per the version of first information report the occurrence took place on 28.10.1990; whereas the FIR has been registered on 15.11.1990 and no explanation for delay has been explained.

ii) The earliest version has not been brought on record by the prosecution, inasmuch as, by going through para 7 of the cross examination of P.W. 2 it appears that while P.W. 2 was in Hospital, the police came there and recorded her statement and P.W.2 has duly put her left thumb impression on the said statement and when the said statement was duly executed by P.W 2 the alleged FIR is inconsistent and not in consonance with Section 161/162 of the Code of Criminal Procedure because Section 162 clearly stipulates that no statement made by any person to a police officer in course of an investigation shall be signed by the person making it and since the deposition of P.W. 2 clearly indicates that her statement was recorded which was duly executed by her; the FIR also becomes doubtful and must be an afterthought.

iii) Exhibit-A is an FIR lodged by one Chandmuni Marandi against the informant as well as his family members indicating therein a fight between Chandmuni Marandi and in the informant party, as such on the same day there cannot be two fight and that is the reason that purposefully the informant party had got registered of the FIR after 18 days without any rhyme and reason.

iv) No independent witness has been examined on behalf of the prosecution.

v) The I.O. has also not been examined in this case in order to prove the place and manner of occurrence.

5. Mr. Sabyasanchi, learned amicus vehemently argued that looking to the facts of the case on the same very day an FIR has been lodged by one 3rd party namely, Chandmuni Marandi against the informant and his family members itself goes to show that there was a fight between the two sides but with the ulterior motive, appellants have been dragged in this case. Non-examination of I.O. in the instant case became fatal for the prosecution.

Relying upon the aforesaid facts and submissions, learned counsels contended that though it is not in dispute that the informant side were badly injured but it has not been proved by any piece of evidence that the appellants were involved in this case and since the conviction is based merely on surmises and conjecture, the same should be set aside.

6. Learned APP for the State has opposed the prayer of acquittal and submits that Doctor has given a categorical report about the injury and all the prosecution witnesses have supported the version of the informant that there was a fight and the informant side has been badly injured in that. However, learned APP could not rebut the very fact that there was a delay in lodging the alleged FIR which is dated 15.11.1