JUDGMENT 1. - Appellants Birma Ram and Gorkha Rani were tried by the learned Additional Sessions Judge, Jodhpur for the charges of setting fire to the Dhani of Smt. Amiya (P.W.2) and causing injuries to her and damage to her land and property. By the judgment dated July 21, 1975 the learned trial Judge convicted the appellant Birma Ram for the offence under sections 436, 447, 323 and 427 Indian Penal Code and Gorkha Ram for the offence under sections 436, 447, 323/34 and 427 Indian Penal Code. Both the appellants were sentenced to two years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to undergo one month's rigorous imprisonment for the offence under section 436 Indian Penal Code and three months rigorous imprisonment for the offence under section 447 Indian Penal Code. Birma Ram was sentenced to three months rigorous imprisonment for the offence under section 323 Indian Penal Code and Gorkha Ram was sentenced to two months rigorous imprisonment for the offence under section 323/34 Indian Penal Code. Offence under section 427 being considered to be minor in relation to offence under section 436 Indian Penal Code, the learned trial Judge did not award any separate sentence for that offence. All the substantive sentences were ordered to run concurrently. It was ordered that the fine imposed, Rs. 150/-shall be paid to Smt. Amiya by way of compensation for her injuries, and loss of property suffered by her. 2. The appellants feeling aggrieved by their conviction and sentences have preferred this appeal in this Court. 3. Briefly stated, the facts of the case giving rise to this appeal are as under : Smt. Amiya (P.W. 2) had only one issue, a daughter Mst. Harku (P.W. 3). Smt. Amiya after the death of her husband about forty years back, started living with her daughter and grand sons. The fields belonging to Smt. Amiya, situate near village-Chamu are said to have been sold by her to her grand son Sesa Ram, who was maintaining her. This caused annoyance to Birma Ram, who happens to be the son of the brother-in-law (Jeth)of Smt. Amiya. The relations between Sesa Ram and Birma got strained on account of the fields being given to the latter by his grand mother. This caused annoyance to Birma Ram, who happens to be the son of the brother-in-law (Jeth)of Smt. Amiya. The relations between Sesa Ram and Birma got strained on account of the fields being given to the latter by his grand mother. During the days when the alleged incident of burning the Jhoonpa'is said to have taken place Smt. Amiya is said to be living at the Dhani at a distance of one mile from the Dhani where her daughter Smt. Harku was living and a distance of two miles from the Dhani of her grand son Sesa Ram. On March 5, 1975 when Smt. Amiya was sleeping inside her Jhoonpa the appellants went to her and forcibly took her out of the Dhani. Birma Ram is said to have inflicted injury on her hand. The appellants then set fire to the Jhoonpa. Smt. Amiya raised a cry which attracted the neighbour lumba Ram (P.W 4) who went to inform Smt. Harku (P.W. 3) daughter of Smt. Amiya about the incident. Smt. Harku along with tracker Nongla Ram and Ward Panch Jetha Ram went to the site. Sesa Ram was out in the night of occurrence. On his return he went to the Dhani of his grand mother and saw the Jhoonpa burning and her grand mother lying outside with burns on her left check and injury on her right hand. He and Smt. Amiya went to Police Station Dechu and lodged the report which was produced into writing by Raghav Das (P.W. 8) Head Constable, Incharge of the Police station On March 6, 1975 Dr. Surcsh Chandra Mathur (P.W. 11) Medical Officer-Incharge, Hospital Phalodi examined Smt. Amiya and noted three simple injuries on her person. On March 8, 1975 Yukti Karan (P.W. 9), the Station House Officer, Police Station, Bechu went to the site and made necessary investigation and prepared the memos. 4. After completion of investigation charge-sheet against the two appellants was filed in the Court of Munsif and Judicial Magistrate, Jodhpur. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions committed the appellants to the Court of Sessions Judge, Jodhpur to stand their trial. The case was transferred to the Court of the Additional Sessions Judge who charge sheeted the appellants for the aforesaid offences and recorded their plea. Both of them denied the indictments and claimed to be tried. The case was transferred to the Court of the Additional Sessions Judge who charge sheeted the appellants for the aforesaid offences and recorded their plea. Both of them denied the indictments and claimed to be tried. Eleven witnesses have been examined from the prosecution side. Both the appellants in their statements under sec. 313 of the Code of Criminal Procedure totally denied the allegations levelled against them. The learned Additional Sessions Judge relied on the prosecution evidence and passed the Judgment under appeal. 5. Mr. Mohanani, learned counsel for the appellants has assailed the findings of the learned trial Judge on a number of grounds. It has been strenuously contended by him that in this case there is the solitary testimony of Smt. Amiya (P.W. 2) who had inimical relations with Birma and therefore, the conviction is not sustainable on her evidence alone. 6. Another ground raised by Mr. Mohanani is that the written First Information Report said to have been filed by Sesa Ram (PW 7) and Smt. Amiya (PW 2) has been withheld by the prosecution and oral information reduced into writing by Reghav Das (PW 8) is substituted in order to make a false case against the appellants. Yet another point emphasised by Mr. Mohanani is that the First Information Report was never sent to the concerned Magistrate and therefore, on account of non-compliance of the provisions of Section 157 of the Code of Criminal Procedure, the prosecution case deserves to be discarded. Mr. Mohanani, also pointed out improbabilities of the prosecution story and the infirmities in the investigation. According to him an old woman of 70 years old cannot be believed to be living at a distance of one and half mile from the Dhani of her daughter and grand son after parting with her property in favour of the latter. 7. It has been emphasised that no article connecting the appellants with the commission of the crime said to have been found at the spot has been exhibited during the trial. 8. This is correct that the prosecution case hinges on the solitary testimony of Smt. Amiya. There is no rule of law that conviction cannot be based on the testimony of a single witness. 8. This is correct that the prosecution case hinges on the solitary testimony of Smt. Amiya. There is no rule of law that conviction cannot be based on the testimony of a single witness. It is only by way of prudence that Courts look for corroboration to the evidence of a single witness, specially in cases where the terms between that witness and the alleged culprit are not cordial. In the present case the relations between the complainant Smt. Amiya and the appellants were not at all cordial. That alone will not however be Sufficient to discredit the testimony of Smt. Amiya if it otherwise stands the test of a truthful deposition. It will have to be examined whether she is a witness of sterling worth or not. Loomba Ram (P.W. 4) the nearest neighbour to the Jhoonpa of Smt. Amiya has been declared hostile by the prosecution for the reason that he did not support the prosecution case that he had seen the appellants setting fire to the Jhoonpa. 9. Smt. Amiya (P.W.2) has stated about the two appellants going to her and asking her to come out of Jhoonpa and on her reluctance forcibly bringing her out. She has also stated about Birma Ram causing injuries on her hand. The witness in her examination-in-chief had not initially named Raju Ram. On this version of the witness Mr. Mohanani has built up the argument that the initial story was about Gorkha Ram not at all being there, but subsequently, for the reasons best known to the complainant or the investigating agency, name of Gorkha Ram might have been added, Smt. Amiya in her examination-in-chief itself had subsequently dropped the name of Raju Ram and named Gorkha Ram as the companion of Birma Ram. 10. Mr. Calla, learned Public Prosecutor has argued that Smt. Amiya (P.W.2) might have per mistake named Raju in the examination-in chief but then might have recollected the name of Gorkha Ram. 11. On the face of it the argument of the learned Public Prosecutor appears to be acceptable but on careful examination of the statements of the other witness it so appears that some Raju was really there in the prosecution case at some stage and his name was dropped subsequently. 12. Attention of Loomba Ram (P.W.4) was drawn to a portion of his police statement where name of Raju appears. 12. Attention of Loomba Ram (P.W.4) was drawn to a portion of his police statement where name of Raju appears. Tracker Mangla Ram has stated that when he went to the site he could identify the foot-prints of Raju. The witness could not identify the foot-prints of any other person. 13. The fact of there being a written First information Report has been proved by Smt. Amiya as well as by Sesa Ram. Smt. Amiya has narrated all the report scribed. Sesa Ram grand son of Smt. Amiya who had accompanied the latter to the Police Station has stated that he had filed the report at Police Station and appended thumb impression on it. In cross examination he has deposed that the report was got scribed by Moola Ram and not by him. He has further stated that it was that written report which was given at the Police Station. The prosecution has failed to get Ex. P. 2. proved either by Smt. Amiya or Sesa Ram. The written report filed by the complainant and her grand son Sesa Ram does not find place on the record. Reghav Das, Head Constable Incharge of the Police Station on March 5, 1975 does not speak of any written report being given to him, rather has stated that Sesa Ram had lodged an oral report which was reduced into writing by him and is Ex. P. 2. The witness further stated that on that Ex. P. 2, he had taken the thumb impression of Sesa Ram. It is pertinent to note that there is no report bearing the signature or the thumb impression of Smt. Amiya despite the fact that she had gone to the Police Station. The report Ex. P. 2 is said to have been lodged by Sesa Ram. Sesa Ram was not an eye witness. Sesa Ram has stated that he had no talk with her grand mother. If it was so, where was the occasion for Sesa Ram knowing all the details to narrate before the Officer for writing the First Information Report. If Sesa Ram was not knowing the facts, the only course would have been to know from Smi. Amiya as to what had happened and then write the report in her name. 14. There are thus two stories about the First Information Report. If Sesa Ram was not knowing the facts, the only course would have been to know from Smi. Amiya as to what had happened and then write the report in her name. 14. There are thus two stories about the First Information Report. One coming from the statements of Smt. Amiya and Sesa Ram that a written report Was tiled at the Police Station while the other is from the statement of Raghav Das that only oral information was furnished by Sesa Ram which was reduced into writing. 15. This being the state of affairs, the learned counsel for the appellants has rightly argued that the investigation is not above suspicion and the possibility of written report containing some different facts being withheld cannot be ruled out. 16. With this ground of attack Mr. Mohanani has stressed that initially the name of Reju might be there and subsequently improvements might have been made and the name of Gorkha Ram might have been added. According to Mr. Mohanani if the investigating agencies can go to such an extent so as to substitute the oral report for the written report it can also be suspected of concocting a false case against innocent persons. From the evidence on record it can be inferred that initially some written report was taken to the Police Station but for the reasons best known to the prosecution that written report has not been made the basis for setting the police agency into motion. 17. The next argument of Mr. Mohanani regarding the non compliance of the provisions of Section 157 of the Code of Criminal Procedure is also worth consideration, specially when he has succeeded in creating doubt regarding the Ex. P. 2 being the real First Information Report. The written report, as observed above has not been made the basis of investigation and therefore, there arises no question of its being sent to the concerned Magistrate. Ex. P. 2 even does not indicate that it ever reached the concerned Magistrate. The learned Public Prosecutor could not controvert the contention that there is no material to establish the compliance of the provisions of See. 157 of the Code of Criminal Procedure. 18. It is obligatory on the officer incharge of the Police Station to forthwith send the report to the Magistrate empowered to take cognizance of the offence to which the report relates to. 157 of the Code of Criminal Procedure. 18. It is obligatory on the officer incharge of the Police Station to forthwith send the report to the Magistrate empowered to take cognizance of the offence to which the report relates to. The importance of this provision cannot be over emphasised for the reason that this provision has been inserted by the legislature in order to minimise the chances of embellishment and improvements in the prosecution case as it stands at the initial stage. The highest court of the country has time and again emphasised the necessity of complying with the provisions of Section 157 of the Code of Criminal Procedure and has propounded the principle that the provision being mandatory, it is incumbent upon the investigating officer to comply them. 19. In the case of Ishwar Singh v. The State of Uttar Pradesh, AIR 1976 SC 2423 their Lordships have been pleased to observe as under:- "The extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence",- 20. In the case of Birsingh and others v. The State of Uttar Pradesh, AIR 1978 SC 59 the point relating to the proof the compliance of the provisions of Section 157 of the Code of Criminal Procedure came for consideration before their Lordships. It was a case of delay in sending the F.I.R. to Elaqa Magistrate and there was no evidence led by the prosecution to show when F.I.R. was sent to Elaqa Magistrate or the P.P.s office. The High Court indulged in another conjecture that the F.I.R. must have been sent to the P.P. and to the Elaqa Magistrate. Their Lordships of the Supreme Court were pleased to observe that this was however a matter, of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.P.s office and in the absence of any evidence on this point the High Court was not held justified in drawing on inference, in order to demolish the positive and categorical statements of the investigating officer. 21. There was absolutely no evidence led by the prosecution to show when the F.I.R. was sent to the Elaqa Magistrate or to the P.P.s office and in the absence of any evidence on this point the High Court was not held justified in drawing on inference, in order to demolish the positive and categorical statements of the investigating officer. 21. In the present case there is absolutely no evidence that it was sent at all to the Magistrate concerned what to talk of the F.I.R. not being sent in time.This slackness on the part of the investigating agency becomes all the more important in view of the peculiar factor that there is suspicion regarding Ex. P. 2 being the real F.I.R. 22. This being the situation, certain infirmities noted in the case assume importance. Smt. Amiya stated that her saree was burnt. The investigating officer for the reason best known to him did not take the saree in possession. The time of the alleged incident is said to be early morning on September 5, 1975. The first information is lodged on that day at 10.00 a.m. Raghav Das (PW8) who recorded the information did not go to the site on that day. It was on March 8, 1975 that the station House Officer Yukti Karan (P.W. 9) had for first time gone to the site for investigation. There is no explanation for this delay. 23. In this view of the matter there is substance in the arguments advanced by the learned counsel for the appellants that the written report might be of different nature and these three days might have been utilised for making out a case and to give an occasion to say that incriminating circumstances like tracks etc. could not be found at the time of site inspection. It is also pertinent to note that saree of Smt. Amiya alleged to have been burnt and was not seized by the police to be exhibited at the trial. 24. Yet another circumstances in the case creating suspicion is the delayed examination of the injury of Smt. Amiya. Instead of being examined at Dechu she was examined at Phalodi on March 6, 1975 the second day of the alleged occurrence. There is one abrasion 1/2 x 1/2" x 1/2 on the nose along with small blisters placed on left cheek. This injury can be self inflicted according to the Doctor. Instead of being examined at Dechu she was examined at Phalodi on March 6, 1975 the second day of the alleged occurrence. There is one abrasion 1/2 x 1/2" x 1/2 on the nose along with small blisters placed on left cheek. This injury can be self inflicted according to the Doctor. Second injury is diffused contusion and third is lacerated wound 1/2" x ⅛" x ⅛" x ⅛". The opinion of the Doctor regarding these two injuries is that they can be caused if the patient strikes against some hard object, 25. In this view of the matter, the solitary testimony of Smt. Amiya cannot be of sterling worth and the prosecution case suffering from the above discussed grave infirmities cannot be said to be duly established so as to warrant conviction of the appellants. 26. Consequently, the appeal is accepted and the conviction and sentences awarded to the appellants are set side. They are on bail. Their bail bonds stand discharged.Appeal accepted. *******