The delayed examination of witnesses can make their evidence infirm and unreliable, especially if there are circumstances suggestive of unfair practice by the Investigating Officer.

JUDGMENT :

C.R. Dash, J. - This appeal is directed against the judgment and order of sentence dated 22.02.2006 passed by learned Sessions Judge, Keonjhar in S.T. Case No. 123 of 2005, convicting the appellants for offence under Sections 302, I.P.C. and sentencing each of them to suffer imprisonment for life. The occurrence happened at about noon on 11.11.2004 at Sailong Hudi. Deceased Sanjeeb and his brother-in-law (sister's husband) named Chittaranjan Jena were returning on a motorcycle. They heard shout from behind. Looking back they saw Dillip (Appellant No. 5) and Manu (Appellant No. 6) chasing them being armed with swords. Other two persons put stones in front of their motorcycle. Finding no way out, they left the motorcycle there and started running for their safety. The appellants, however, sorrounded deceased Sanjeeb and assaulted him with sword, farsa, etc., they were armed with. Sanjeeb fell down with bleeding injuries and others also chased Sanjeeb's brother-in-law (Chittaranjan). He could, however, escape. Prior to the incident, there was dispute between the deceased and the accused persons and the accused persons were threatening to kill the deceased. The matter was reported to the police and on completion of investigation charge-sheet was filed implicating the appellants in the offence.

2. Prosecution has examined 10 witnesses to prove the charge. Out of them, P.Ws.1, 2 and 8 have not deposed anything against the appellants. P.W.5 is a post-occurrence witness, who heard about the incident over telephone and saw the injured at the hospital. P.W.6 is the Medical Officer, who had examined Prakash Jena (Appellant No. 2). P.W.7 is the Medical Officer, who had conducted the autopsy. P.Ws.3 and 4 are the eye witnesses, on whose evidence the entire prosecution case rests. P.Ws.9 and 10 are the Investigating Officers.

The defence plea is one of complete denial. None is, however, examined on behalf of the defence.

3. Learned Trial Court, on consideration of the evidence obtained on record, found the appellants guilty u/s 302, I.P.C. and acquitted them of the charge u/s 120B, I.P.C.

4. It was the main contention before the trial court and the sole contention before this Court that there being unexplained delay in examination of the alleged eye witnesses, i.e., P.Ws.3 and 4, conviction of the appellants u/s 302, I.P.C. is not sustainable in the eye of law. Learned counsel for the appellants relies on a number of decisions to substantiate his contentions.

Learned Addl. Standing Counsel on the other hand supports the impugned judgment and submits that no question having been asked to the Investigating Officer regarding the delay in examining P.Ws. 3 and 4, he (the Investigating Officer) cannot be blamed for any defects without eliciting an explanation from him.

5. It is admitted at the Bar that the case must stand or fall by the evidence of P.Ws.3 and 4. The infirmity from which their evidence suffer is that both of them (P.Ws.3 and 4) were not examined till 18.11.2004, as testified ipse dixit by the Investigating Officer (P.W.10), though the occurrence happened at about 11.20 A.M. to 12.00 Noon on 11.11.2004 and they (P.Ws.3 and 4) were present throughout in the spot village, which the police had already made several visits to.

6. Learned counsel for the appellants has relied on some decisions. Those decisions are discussed below :

In the case of Ram Pukar Thakur and Others Vs. The State of Bihar the sole eye witness named Nakuldeo did not disclose the names of the assailants to anyone whosoever; nor any other members of the family mentioned the names of the assailants to any one of the several persons gathered in their house and said Nakuldeo had involved one Biswanath Pandey falsely. Hon'ble Supreme Court held the evidence of the sole eye witness Nakuldeo to be unbelievable. In the case of Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh the defence had examined one witness as D.W.3. What he stated before the Court in co