JUDGMENT R. N. Sahay, J. This appeal arises from Sessions Trial No. 166/85 on the file of 2nd Additional Sessions Judge, Nalanda at Biharsharif. In the trial appellant no. 1 Dukhi Mahto was charged u/s 302 IPC and 27 of the Arms Act and appellant no. 2 Bindeshwar Mahto was charged u/s 302/l49 IPC. Both the appellants have been convicted and sentenced to undergo rigorous imprisonment for life. 2. The prosecution story is narrated in para 2 of the judgment. Tae occurrence happened between in the night of 17th and 18th December, 1982, at village Narai, P S. Chandi, District Nalanda in which Chandrika Mahto was murderad while he was sleeping in the cabin of Krishnandan Pandey. Five persons including these appellants were prosecuted for the murder of Chandrika Mahto in furtherance of their common object. Three accused persons, namely, Lakhan Mahto, Rajendra Mahto and Kameshwar Mahto, who were tried alongwith these appellants were acquitted. The deceased was sleeping with Rupan Thakur, Jayanand Pandey, Ramanandan Pandey and Dinesh Pandey. They heard some sound and got up to know as to who they were. The accused persons asked them to open the door because they had to kill Chandrika Mahto. The inmates who were sleeping with Chandrika Mahto were frightened and went to the roof of the cabin. Thereafter the miscreants removed the roof of the cabin and four of them entered into the cabin According to the witnesses accused Dukhi opened fire which hit the neck of the deceased Chandrika. Then the accused Bindeshwar and Surendra Mahto hit the deceased on his neck with sickles, Chandrika died on the spot. The accused persons flew away towards the south. The motive alleged by the prosecution for the heinous offence was that the deceased bad asked his aunt not to dispose of the share of her property but even then she disposed of her share and the deceased did not allow the transferees of her aunt to come in possession of disposed of land and therefore he was murdered. The FIR was lodged by Dinesh Pandey, who is a witness to the occurrence at 11 P.M. on 17.12.82 FIR, was registered at 1.30 P.M. on the next day. The police after investigation submitted chargesheet against five accused persons including these appellants. The defence of the appellants was that they have been implicated on account of enmity. The FIR was lodged by Dinesh Pandey, who is a witness to the occurrence at 11 P.M. on 17.12.82 FIR, was registered at 1.30 P.M. on the next day. The police after investigation submitted chargesheet against five accused persons including these appellants. The defence of the appellants was that they have been implicated on account of enmity. According to the defence the deceased who was a veteran criminal might have been killed somewhere else and the appellants were implicated on suspicion because of civil litigation. 3. During the trial seven witnesses were called by the prosecution. The main witnesses were P.W. 5 Dinesh Pandey (informant), P.W. 2 Ramanand Pandey and P.W. 1 Jayanand Kumar Pandey. Rupan Thakur who is the witness of the occurrence was not examined. All the witnesses have supported the occurrence as made out in the F.I.R. 4. The learned Sessions Judge hag given a summary of the evidence of P.Ws, 1, 2, and 5 as follows : "PW. 1, 2 and 5 have deposed as eye witnesses of the occurrence. P.W. 5 deposed to the effect that about 3/4 years back on Friday at about 11 in the night, he was in the cabin of Krishnandan Pandey Rupan Thakur, Jayanan Pandey, Ramanandan Pandey and Chandrika Mahto were also sleeping on the roof of the cabin and they were talking. There was a tile roof over the first floor. They heard some sounds and the door was also knocked at then they interrogated as to who they were. The man who bad gene there asked him to open the door but he refused to open the door they cut out a sendh' in the door. Thereafter, they came in the cabin after cutting the tile roof (4 in humber). They wanted to know as to who was Chandrika Mahto, because they were to kill him. He identified the accused Dukhi Mahto, Bindeshwar Mahto and Surendra Mahto but he could not identify the remaining one accused. Dukhi Mahto was armed with a gun, Bindeshwar Mahto and Surendra Mahto were armed with sickles. The unidentified man was empty handed. Bindeshwar ordered for killing Chandrika. Thereafter, Dukhi opened fire and Surendra hit him on his neck with the sickles with the clear intention of choping his neck. There was profused bleeding from the body of deceased and after about 15 minutes Chandrika died. The unidentified man was empty handed. Bindeshwar ordered for killing Chandrika. Thereafter, Dukhi opened fire and Surendra hit him on his neck with the sickles with the clear intention of choping his neck. There was profused bleeding from the body of deceased and after about 15 minutes Chandrika died. In the meantime his co-villagers came there by raising 'hulla' then the accused fled away. The villagers were Aditya Pandey, Sita Ram Yadav, Ganga Sagar, Shib Kumar Babu, Ravindra Prasad, father and wife of the deceased and he narrated the occurrence to them. 7. According to him the aunt of deceased Chandrika is an widow and the accused Bindeshwar, Dukhi and Surendra got her land transferred in their favour by including her but Chandrika did not allow them to come in possession of the said land. He never allowed them to plough it, that is why the accused caused the death of Chandrika Mahto." 5. P.W. 5 Dinesh Pandey is nephew of Krishnandan Pandey but he was not on good term with his uncle nor had any concern with his business or other affairs. He stated that P.W. 1 Jayanand Kumar Pandey P.W. 2 Ramanand Pandey and Krishnandan Pandey were implicated in two criminal cases under Arms Act in Chandi P. S. Case no. 26 (11)/80 and another case of 1986 Krishnandan Pandey Chandrika Mahto and his father Chamari Mahto were accused in the murder case of Bhushan, which was pending in the cuort of Sessions for disposal. This witness has admitted that he had gone to sleep in the cabin for the first time because his field was being irrigated. He also admitted that there was dispute between the deceased Chandrika and the accused for some land for about Two years back from before the date of occurrence of this case. The accused got two sale deeds executed from the aunt of the deceased Chandrika but he had not seen those deeds. He denied that the accused Dukhi' was in State Dispensary, Asthawan from 7-12-82 where he was operated, upon for his Hernia on 8.12.82 and discharged from the hospital on 9.1.83. 6. P.W. 2 Ramanand Pandey deposed that the deceased Chandrika was a friend of his father who was murdered a day after the death of his father in his cabin. He denied that the accused Dukhi' was in State Dispensary, Asthawan from 7-12-82 where he was operated, upon for his Hernia on 8.12.82 and discharged from the hospital on 9.1.83. 6. P.W. 2 Ramanand Pandey deposed that the deceased Chandrika was a friend of his father who was murdered a day after the death of his father in his cabin. In the night of the occurrence the deceased Chandrika Mahto, Dinesh Pandey, Rupan Thakur, Jayanand Pandey, were sleeping in the cabin. The occurrence took place at about 11 in the night and the accused came there and entered into the cabin by cutting the tiled roof. He identified the accused Dukhi and Parme shwar in the torch light. Dukhi had fired on the deceased with a gun of the size of about two feets. 7. The learned Sessions Judge accepted the evidence of these three eye witnesses. According to the report of Dr. Ram Pratap Singh (P.W. 6) the following ante mortem injuries were found on the person of Chandrika Mahto : (a) Rigor mortis present on the lower limbs only. (b) One gun short injury 1/2" diameter on the left sid of neck just above clavicle. (c) Skin around the wound was charred and blackened (wound of entry) margins were in verted. (d) One lacerated wound of 3/4" diameter on the right side of back or chest 6" from the back of neck and 2" right of vertibrae, On dissection of the dead body his second rib was found fractured left and right lungs punctured, chest cavity filled with about 1/2 point of blood. Chest wall in the right side punctured between 4th and 5th rib, stomach contained undigested rice and Dal, bladder was empty, death was caused due to haemorrhase and shock. 7. Ramnandan Singh, D.W. 1, an advocate clerk, was examined as a defence witness. He deposed that the alias name of the Dukhi is Devendra, Mosomat Kuar Devi, the aunt of the deceased was known to him who had executed the sale deed on 31.5.79 in the name of Rameshwar Prasad and that sale deed was scribed by one Kishore Prasad and Kumar Devi bad put her L.T.I. thereon. Dukhi was the witness of the sale deed. He proved sale deeds marked as Exts. A, A/1, A/2 and A/3. Dukhi was the witness of the sale deed. He proved sale deeds marked as Exts. A, A/1, A/2 and A/3. It may be noted that these two appellants and one Surendra Mahto were named in the F.I.R. and Rajendra, Kameshwar Lakhan Mahto and Yaddu Mahto have been made accused in this case in course of investigation on the basis of the statement of the prosecution witness recorded by I.O. Surendra absconded. Two of non F.I.R. accused Yaddu and Hari Mahto also absconded and the remaining five accused persons faced trial. The prosecution claimed conviction of these appellants on the basis of so called inconsistent witness before the I.O. as well as before the Court. Twit witnesses, P.Ws. 3 and 4 say that they had stated before the I.O, that the accused persons fled away after the murder of Chandrika Mahto, who was the father of P.W. 4 Rabindra Prasad and husband of P.W. 3 Sukho Devi. The investigating officer was not examined but according to the trial judge non-examination of I.O. is not fatal for the prosecution case. 8. It is significant that the occurrence took place at 11 P.M. on 17.12.82 but the F.I.R. was lodged on 18.12.82 at 10 A.M. The distance of the police station was about 15 kilometers from the place of occurrence. The prosecution witnesses including son and the wife of the deceased made their statement before the I. O. on 22.12.82 i.e. after five day, of the occurrence. The trial judge in para 22 of the judgment says : "It appears that they made their statement before the I.O. on 21.12.82. Therefore, the learned counsel for the accused c1ntended that the evidence of witnesses became unreliable only on this score because they made their statements before the police after about five days in support of which contention he relied on 1971 Cr. L J. page 670 which clearly speaks of long delayed statement made before the I.O. in support of his contention that there was delayed lodging of FIR. He relied on 1974 Cr. L.J. page 479 but the point for consideration is that whether a delay of a few hours can be treated as delay in filing of the FIR, because the occurrence is said to have taken place at about 11 PM on 17.12.82. He relied on 1974 Cr. L.J. page 479 but the point for consideration is that whether a delay of a few hours can be treated as delay in filing of the FIR, because the occurrence is said to have taken place at about 11 PM on 17.12.82. Therefore, in abnormal situation when the death of the deceased was caused, it does not appear to be a natural conduct of a man of ordinary prudence that he will rush up to the P.S. within minutes of the occurrence, specially in a case when the occurrence took place in the night and in a very tense situation no body can dare to risk his life in going to the P.S. for lodging the FIR in the night itself. Therefore, in my view delay of a few hours in lodging the FIR cannot be conceded to be false to the case of the prosecution. Therefore, the decision relied upon by the learned counsel for the accused has got no application to the facts of the case, rather those decisions are applicable to su.ch case in which FIR is lodged after much delay." 9. As regards the defence plea that their being no means of identification in the cabin it was impossible for the witnesses to identify the accused persons. PW 1 has claimed identification in the torch light. He has also stated that Dhibri was burning in the cabin. PWs did not speak about the source of light. 10. The trial judge rejected the defence plea and accepted the prosecution evidence and found charges to be true against these two accused persons. Remaining three appellants were acquitted. 11. Learned counsel for the appellants Sri Parthisarthi appeared as Amicus Curiae argued the case of the appellants with commendable percision and clarity. He has not left a single point which could raised on behalf of the appellants. Learned counsel has vehemently argued that according to the FIR the informant was sleeping in the cabin along with Jayanand, Ramanand and Rupan Thakur (not examined) when the occurrence took place. He has not left a single point which could raised on behalf of the appellants. Learned counsel has vehemently argued that according to the FIR the informant was sleeping in the cabin along with Jayanand, Ramanand and Rupan Thakur (not examined) when the occurrence took place. The first informant in his evidence during the trial in his cross examination in para 15 has stated that at the time of occurrence he was busy in irrigating his land at about 75 to 80 degs to the north, of the place of occurrence and from there he saw two to four persons near the place of occurrence and being afraid he, did not go to the place of occurrence and after 30 to 35 minutes the villagers came there and when all assembled below the Neem tree near his field they all went to the place of occurrence where they found Chandrika Mahto murdered. Counsel has rightly argued that it is clear from this admission that, he could not be eye witness of the occurrence. He has further argued that admittedly the other two witnesses, namely Jayanand Pandey and Ramanand Pandey who are the minor sons of Krisnandan Pandey were examined by the investigating officer on 21.12.82 after about four days from the date of occurrence and when the investigating officer searched for the other eye witnesses he was informed that they had all gone to Bakhtiapur in the funeral of Krishnandan Pandey, father of PWs 1 and 2. PW 1 was 11 years of age and PW 2 was of 7 years of age on the date of occurrence and admittedly the father of P.Ws 1 and 2 Krishnandan Pandey died in Biharsharif hospital in, the night of 16.12.82 and on 17th information of his death reached the village and so his two minor sons P.Ws 1 and 2 might ban gone to Bihar shrif sometimes on 17.12.82 itself and they could not be at the place of occurrence on 18.12.82. This contention also appears to be well founded and was not countered by the counsel for the State. 12. Learned counsel further argued on the manner of occurrence and submitted that it is not corroborated by the medical evidence. It is also submitted that the case like present one, non-examination of I.O. has seriously prejudiced the defence case. The contention also appears to be correct. 13. 12. Learned counsel further argued on the manner of occurrence and submitted that it is not corroborated by the medical evidence. It is also submitted that the case like present one, non-examination of I.O. has seriously prejudiced the defence case. The contention also appears to be correct. 13. It appears to me that the trial Judge found himself unable to meet the defence case. The very fact that PWs 1 and 2 give their statements after five days of the occurrence. There could be no two opinions that, the charges should fail on this score alone. Mr. Partha Sarthy placed reliance on AIR 1987 SC 826 , AIR 1981 SC 1578 , AIR 1983 SC 484 , 1990 (1) PLJR 755, 1993 Supp (1) SCC 395 and (1983) 2 SCC 305 . It is not necessary to deal with these decisions in view of the conclusion that the evidence is unreliable and unsatisfactory. 14. Before parting with the judgment I must express my apprecation for the able assistance rendered by Shri Partha Sarthy who argued the appeal as an experienced criminal lawyer. 15. In the result I hold that there has been serious miscarriage of justice in this case. The trial judge was not satisfied with the evidence and acquitted three persons. The judgment of the trial court is perverse. No criminal court should have convicted the accused in such a serious crime. The conviction of the appellants is set aside and they are acquitted. Appellant no. 1 Dukhi Mahto alias Devendra Prasad is in custody. He is directed to be released forthwith if not wanted in any other case. Appellant no. 2 Bindeshwar Mahto is discharged from the liability of tail bond. P. K. Sarkar, J. I agree.