The court emphasized that delays in lodging the FIR and non-production of the weapon of offence did not undermine the prosecution's case, as the medical evidence supported the case beyond reasonable doubt.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this appeal is made to the Judgment and Order dated 06.09.2005, passed in Sessions Trial No. 199 of 2002, State vs. Yaseen, passed by the court of Additional Sessions Judge/FTC Kashipur, District Udham Singh Nagar.

2. By the impugned order the appellant has been convicted and sentenced as hereunder:

(i) Under Section 304 IPC sentenced to 10 years rigorous imprisonment with a fine of Rs. 2,000/-. In default of payment of fine, to undergo further six months rigorous imprisonment.

(ii) Under Section 323 IPC sentenced to one year rigorous imprisonment.

(iii) Under Section 452 IPC sentenced to one year rigorous imprisonment with a fine of Rs. 500/- and in default of payment of fine, to undergo further two months rigorous imprisonment.

3. According to the prosecution case, on 06.03.2002 at 08:00 in the evening, the appellant entered into the house of the informant and hit him on his head with lathi, due to which, the informant sustained injuries. The wife of the informant came for his rescue, she was also attacked on her head. She fell down. She was taken to hospital but, at about 10:00 in the night, she succumbed to the injuries. A report of the incident was lodged on 07.03.2002 at 07:15 AM. A case was registered and investigation proceeded. The inquest of deceased was conducted on 07.03.2002. According to the witnesses of the inquest, the death of deceased took place due to injuries, which she sustained in the attack. Postmortem of the deceased was also conducted on 07.03.2002 at 04:30 PM. According to the doctor, the cause of death was coma as a result of antemortem head injuries. The Investigating Officer (for short “IO”) visited the place of incident. He took into custody the clothes worn by the informant at the time of incident. He prepared site plan. He also took into custody the blood stained soil and plain soil from the place of incident. It is also the case of the prosecution that at the instance of the appellant, the weapon of the offence a lathi, which was also taken into custody by the IO on 07.03.2002. IO also prepared the site plan of the place of occurrence. After investigation, charge-sheet under Sections 304, 452, 323 IPC was submitted against the appellant. On 01.11.2002, charge under Sections 323, 304, 452 IPC has been submitted.

4. In order to prove its case, the prosecution examined 07 witnesses namely, PW-1 Shaukat Hussain, PW-2 Saleem Ahmed, PW-3 Abdul Hameed alias Haneef, PW-4 Jumma Hussain, PW-5 SI Suresh Chandra Joshi, PW-6 Dr. Mukesh Gupta and PW-7 Dr. J.K. Goyal.

5. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code”). The appellant did not adduce any evidence in his defence. Having considered, by the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. Aggrieved by it, the appellant is in appeal.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the appellant would submit that the prosecution has not been able to prove its case beyond reasonable doubt. The appellant ought to have been acquitted of the charge. The court below has been committed an error in convicting and sentencing the appellant.

8. Learned counsel raised the following points in his submission:

(i) The lathi which was allegedly recovered at the instance of the appellant has never been produced before the court below. Therefore, recovery of danda as alleged by the prosecution cannot be read against the appellant.

(ii) The FIR is much delayed. If the incident took place at 08:00 in the evening of 06.03.2002, why the FIR was lodged next morning at 07:15 AM? There is no reason, which may explain this delay. It also doubts the prosecution case.

(iii) The FIR in the instant case was lodged by PW-2, Saleem Ahmed, who is an Advocate. It doubts the prosecution case.

(iv) The incident took place at 08:00 in the evening. It was dark outside. There was no source of light. The