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2006 DIGILAW 85 (CAL)

STATE OF WEST BENGAL v. ANJAN DASGUPTA

2006-02-16

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2006
ALOK KUMAR BASU, J, J. ( 1 ) THE State of West Bengal preferred this appeal challenging an order of acquittal passed by the learned Additional Sessions Judge, 5th court at Barasat in the District of 24-Parganas (N) in connection with Sessions trial No. 9 (9) of 2001 corresponding to Sessions Case No. 13 (12) of 2000. Subsequent to the filing of this appeal by the State of West Bengal, a revisional Application being C. R. R. No. 2263 of 2002 was also filed challenging the order of acquittal and the file of the said revisional application has been placed along with the present criminal appeal and we shall dispose of both the appeal and the revisional application simultaneously. ( 2 ) THE Sessions case in question arose out of Naihati P. S. Case No. 99 dated 16th June, 2000 under Section 302/34 of the I. P. C. and also under sections 25/27 Arms Act. The concerned Naihati P. S. case was started on the basis of a written complaint lodged by the one Sandeep Ghosh alleging inter alia that on 16th June, 2000 at about 4. 50 in the afternoon when he was in his medicine shop situated at R. B. C. Road, Naihati, he noticed Anjan dasgupta and Biswanath Paul to get down from one Maruti Gypsy vehicle near branch office of CPI (M) party and instantaneously four unknown persons came there riding on two bicycles and under instruction of Anjan Dasgupta and Biswanath Paul one person from those four persons shot at Debal Ghosh who was inside the said party office. After the shooting at Debal Ghosh those four persons leaving behind their bicycles boarded on the standing maruti vehicle and the vehicle hurriedly proceeded towards Garifa. It was also disclosed in the complaint of Sandeep Ghosh that Sintu @ Saroj Roy was also found in the said Maruti vehicle along with some others and Bhola kundu was owner of one of the bicycles which was left on the spot by the miscreants. ( 3 ) DEBAL Ghosh was immediately taken to a nearby Nursing Home where he was pronounced dead. ( 3 ) DEBAL Ghosh was immediately taken to a nearby Nursing Home where he was pronounced dead. ( 4 ) ON receipt of the information regarding murder of Debal Ghosh who was an active and prominent member of CPI (M) party, officers of the Naihati p. S. along with other senior police officers rushed to the spot and since there was a violent agitation of the local people over murder of Debal Ghosh, after bringing the situation under control, officers-in-charge of Naihati P. S. himself initiated the investigation on receipt of the written complaint. ( 5 ) AN inquest over the dead body of Debal Ghosh was held and subsequently arrangement was also made for holding post mortem examination. Attempt was made to apprehend the persons named in the fir, but without any result. ( 6 ) IN course of investigation available witnesses were examined including some people of the locality who had the occasion to see the suspects at the place of occurrence and after arrest of Anjan Dasgupta at the first instance and after the arrest of other suspects, statement of some of the witnesses was recorded by the learned Magistrate under Section 164 of the Cr. P. C. ( 7 ) AFTER completion of investigation and with collection of necessary materials, charge-sheet was submitted against Anjan Dasgupta, Bhola kundu, Sintu @ Saroj Roy and Biswanath Paul under Section 302/34 of the i. P. C. and against Basudev Paul under Section 212 of the I. P. C. ( 8 ) ALL the five accused persons facing the trial denied the prosecution charge and prosecution side to substantiate its case examined 31 witnesses including the FIR maker, some eyewitnesses of the locality, scribe of the fir, doctors who issued death certificate and conducted post mortem examination, some witnesses regarding seizure of bicycles and Maruti Gypsy vehicle, police officer who arrested Anjan Dasgupta from Falakata and the investigating officer. ( 9 ) THE prosecution side during trial also placed the written complaint, inquest report, post mortem report, different seizure lists for consideration of the trial Court. ( 10 ) THE learned Additional Sessions Judge, on perusal of prosecution evidence and after considering submissions of both the prosecution and the defence observed that the FIR on which the prosecution case started was manipulated since there were reasons to hold that the FIR was antedated and anti-timed. ( 10 ) THE learned Additional Sessions Judge, on perusal of prosecution evidence and after considering submissions of both the prosecution and the defence observed that the FIR on which the prosecution case started was manipulated since there were reasons to hold that the FIR was antedated and anti-timed. The learned Judge also observed having regard to the evidence that there was unusual delay in dispatching the FIR from the P. S. to the nearest Magistrate in uttar violation of the provisions of Section 157 of the cr. P. C. and this was a strong ground to question the credibility of the prosecution case. The learned Additional Sessions Judge after analyzing the prosecution evidence observed that prosecution failed to prove motive behind the murder of Debal Ghosh and, that apart, the witnesses claimed to be the eyewitnesses of the occurrence were not at all credible and trustworthy and there was unusual delay in examination of some of the eyewitnesses and also there was unusual delay in recording their statements under Section 164 of the Cr. P. C. The learned Additional Sessions Judge after scanning the prosecution evidence opined that investigation of the case was misdirected and there are reasons of hold having regard to the evidence on record that prosecution side did not succeed to prove and establish the guilty of the accused persons beyond reasonable doubt. The learned Additional Sessions judge on the basis of those findings and observations recorded an order of acquittal as regards the charge framed against four accused persons under section 302/34 of the I. P. C. The learned Additional Sessions Judge also recorded an order of acquittal as regards the charge framed against Basudeb paul under Section 212 of the I. P. C. since there was no iota of evidence against the said accused person. ( 11 ) BEING aggrieved by and dissatisfied with the order of acquittal, the state came up with this appeal and subsequent to the filing of the appeal, the de-facto complainant also filed a revisional application against the order of acquittal. ( 12 ) MR. Safiullah appearing in support of the appeal submits before us with reference to the impugned judgment and order that on perusal of the impugned judgment it will be noticed that the learned Judge suffered from inherent contradictions in the matter of assessment of prosecution evidence and to draw a conclusion from such assessment. Mr. ( 12 ) MR. Safiullah appearing in support of the appeal submits before us with reference to the impugned judgment and order that on perusal of the impugned judgment it will be noticed that the learned Judge suffered from inherent contradictions in the matter of assessment of prosecution evidence and to draw a conclusion from such assessment. Mr. Safiullah submits that the learned Judge having regard to the prosecution evidence found no difficulty in accepting the prosecution case to the extent that on 16th June, 2000 before 5 P. M. Debal Ghosh suffered a homicidal death out of gun injury and death of Debal Ghosh took place inside or outside local CPI (M) party office at Naihati. The learned Judge, on examination of the prosecution evidence finally came to the conclusion that the FIR in question was actually lodged on 16th June, 2000 itself although there may be some controversy regarding the actual time of lodging of the FIR. ( 13 ) MR. Safiullah submits that after recording the above findings the learned trial Judge thereafter came to an abrupt conclusion that the FIR was antedated and anti-timed and since the FIR was dispatched from the P. S. on 22nd June, 2002, this unexplained delay in the matter of dispatching the FIR from the P. S. along with the fact of manipulation of the FIR was sufficient to question the very credibility of the prosecution allegation against the accused persons. ( 14 ) MR. Safiullah submits that it will not be improper having regard to the evidence on record to hold that the learned trial Court proceeded to scan the prosecution evidence with a preconceived notion which was prejudicial to the interest of prosecution from the very beginning. ( 15 ) MR. Safiullah contends that from the statement of P. W.-1 and P. W.-5 together with the statement of P. W.-30 the investigating officer, there is no scope to hold that FIR was not lodged on 16th June, 2000 and this fact of lodging of the FIR on 16th June, 2000 gets corroboration from the post mortem report as well as from the inquest report. ( 16 ) MR. ( 16 ) MR. Safiullah submits that the learned Judge was perhaps under the notion that since the FIR was dispatched from the P. S. on 22nd June, 2000 and the said FIR was placed before the learned Magistrate concerned on 22nd July, 2000, there was enough scope for manipulation of the FIR at the instance of the informant in connivance with the investigating officer and from this angle, the learned Judge abruptly concluded that the FIR was antedated, anti-timed and a manipulated document. ( 17 ) MR. Safiullah submits that it is a fact as gathered from record of the trial Court that the FIR was not dispatched with promptitude and the same was dispatched on 22nd June, 2000 from the P. S. and admittedly there was delay in dispatching the same. Mr. Safiullah submits that delay in sending the copy of the FIR to the Magistrate cannot be considered fatal to prosecution in all cases and in case of delayed dispatch of FIR, the Court is to examine the prosecution evidence with added caution and the Court is to examine whether any real prejudice was caused to the accused persons facing the trial for such delayed dispatch and, that apart, Court must also examine whether any attempt was made on the part of the investigation agency to manipulate the contents of the FIR which would be prejudicial to the interest of the accused persons facing the trial. ( 18 ) MR. Safiullah contends that in case of delayed dispatch of FIR there must be sincere attempt from the side of the accused persons to obtain explanation from the police officer in charge of the investigation and if there is no such attempt and if there is no tangible proof of any prejudice being caused to the accused person, mere delay in dispatching of the FIR cannot be a ground to question the credibility of the prosecution case and the Court must proceed with an open mind to scan the prosecution evidence in the background of defence suggestion and only thereafter to draw a conclusion which will be in the best interest of justice. Mr. Safiullah to substantiate his point in this context has referred to the following decisions reported in the case of Sahdeo and Ors. v. The State of U. P. reported in 2004 SCC Criminal page 1873, in the case of Sunil Kumar and Anr. Mr. Safiullah to substantiate his point in this context has referred to the following decisions reported in the case of Sahdeo and Ors. v. The State of U. P. reported in 2004 SCC Criminal page 1873, in the case of Sunil Kumar and Anr. v. The State of Rajasthan reported in 2005 SCC criminal page 1230, in the case of Anil Rai v. The state of Bihar reported in 2001 Criminal Law Journal page 3969, in the case of Banti v. The State of Madhya Pradesh reported in 2004 Criminal Law journal page 372. ( 19 ) THUS, Mr. Safiullah submits that in the present case if the statement of P. W.-1 the informant, P. W.-5 the scribe and P. W.-30 the investigating officer are taken together and examined, there cannot be any apprehension in the mind of any man of ordinary prudence about the authenticity of the FIR and about its' lodging at the time and date mentioned in the body of the FIR. ( 20 ) MR. Safiullah contends that it will appear from record that although the FIR named accused persons were men of the locality having political background, they could not be arrested soon after lodging of the FIR in spite of vigorous attempt made by the police and only on 13th August, 2000 Anjan dasgupta was arrested for the first time and thereafter, after lapse of considerable period the other accused persons were under arrest and produced before the concerned Magistrate and, in that background, we are to examine the defence challenge regarding delay in recording the statement of the eyewitnesses by the I. O. and also recording of their statement under section 164 of the Cr. P. C. ( 21 ) MR. Safiullah contends that P. W.-1 was in his medicine shop which was just beside the CPI (M) party office and the occurrence took place inside the party office and P. W.-1 both in his FIR and in his evidence before the court convincingly narrated the role played by Anjan Dasgupta and Biswanath paul in particular in the matter of assault on Debal Ghosh resulting his death and also the subsequent conduct after such assault in the matter of helping the assailant to leave the place with the help of Anjan Dasgupta and Biswanath paul. Mr. Mr. Safiullah submits that statement of P. W.-1 was sufficiently corroborated by P. W.-2, P. W.-3, P. W.-4, P. W.-6 and even P. W.-10 and P. W.-21 sufficiently supported the prosecution case in this regard. ( 22 ) MR. Safiullah contends that the learned Additional Sessions Judge discarded the entire evidence of all the eyewitnesses on the ground that they made contradictory statement and there was no uniform version derived from their statement. Mr. Safiullah submits that it cannot be expected and it is also not desirable to expect that all the prosecution witnesses supporting the prosecution case will give a tutored version of the prosecution case, rather, it is probable and it is desirable that each of the witnesses must state the fact as seen by each of them from their own angle and this has been exactly done in this case and the learned trial Judge has discarded this natural expression of the eyewitnesses on very unreasonable ground. ( 23 ) MR. Safiullah contends that presence of Anjan Dasgupta and biswanath Paul in particular along with other respondents on the place of occurrence was proved and established by the statement of eyewitnesses who not only gave similar version before the investigating officer, but, they repeated the same during their examination under Section 164 of the Cr. P. C. and also their examination before the Court during trial. Mr. Safiullah contends that there may be some variations, some omissions or even additions in the statement of the witnesses, but, judging as a whole, it can be stated firmly that the eyewitnesses in one voice supported the basis of the prosecution case that on 16th June, 2000 at about 4. 50 P. M. a Maruti Gypsy vehicle came near the CPI (M) party office and at the same time four persons came there on two bicycles and under instruction of Anjan Dasgupta and biswanath Paul, one amongst the four shot at Debal Ghosh resulting his death and thereafter Anjan Dasgupta and Biswanath Paul took those four persons in the Maruti vehicle and had left the place. ( 24 ) MR. Safiullah contends that subsequent seizure of the maruti gypsy vehicle in presence of eyewitnesses supported the FIR case fully. Mr. ( 24 ) MR. Safiullah contends that subsequent seizure of the maruti gypsy vehicle in presence of eyewitnesses supported the FIR case fully. Mr. Safiullah submits that in this case all the accused persons named in the FIR avoided police arrest for a considerable period of time and even if for some reasons or other no reliance can be placed regarding arrest of Anjan Dasgupta from falakata, the simple fact remains that Anjan Dasgupta was arrested only on 13th August, 2000 after much persuasion and the other accused persons were arrested long thereafter and this abscondence of the accused persons may be treated as another corroboration to the prosecution case establishing their involvement behind the murder of Debal Ghosh. ( 25 ) MR. Safiullah contends that there is no denying of the basic legal principle that while entertaining an appeal over an order of acquittal the Court of appeal must be slow to entertain the plea of conviction and only in a rare case where the appellant shall be successful to establish from prosecution evidence that the entire scanning of evidence by the trial Judge was perverse and without any reason and logic, the appeal Court will interfere and in appropriate case shall reverse the order of acquittal. Mr. Safiullah contends that it is accepted principle of criminal trial that if two views are possible from reasonable interpretation of evidence of record, the view favorable to the accused persons and accepted by the trial Court shall not be disturbed in appeal unless it is proved from cogent and convincing reason that the view taken by the trial Court was not acceptable as it was based on wrong and perverse interpretation of evidence. ( 26 ) MR. ( 26 ) MR. Safiullah contends that in this case the learned Judge totally misdirected himself in observing that the FIR was antedated and manipulated and the learned Judge was also misdirected himself in the matter of appreciation of prosecution evidence and for both these reasons, the conclusion drawn by the learned Judge rejecting the prosecution case appears to be totally without any reason and logic and when from evidence on record it is established that the FIR was an authentic document and there was never any attempt to manipulate the same, mere delay in dispatching the fir and even without taking any explanation for such delay during cross-examination of the I. O. , cannot hamper the prosecution case. Mr. Safiullah contends that on close examination of the prosecution witnesses it is well established that Anjan Dasgupta and Biswanath Paul were present on the place of occurrence and under their direct instigation Debal Ghosh was murdered and both Anjan Dasgupta and Biswanath Paul helped the assailants to flee away and naturally, there is ample evidence on record to hold at least anjan Dasgupta and Biswanath Paul guilty of the offence under Section 302/ 34 of the I. P. C. Mr. Safiullah contends that the evidence adduced by prosecution through eyewitnesses gets sufficient corroboration from the seizure of the Maruti Gypsy and the bicycles and also from the fact that the accused persons evaded arrest for a considerable period of time. ( 27 ) MR. Safiullah submits that so far the prosecution case as regards basudev Paul is concerned, the matter is left for the decision of this Court having regard to the evidence on record. ( 28 ) MR. Sekhar Basu appearing for the respondents has seriously challenged the appeal as well as the revisional application. Mr. Basu contends that the trial Judge had the opportunity and occasion to examine the witnesses of the prosecution and the trial Judge being a Court of fact and law on recording convincing reason recorded the order of acquittal and even if there is any scope to hold otherwise, following the judicial precedent, this Court being a court of appeal shall not disturb the finding and conclusion of the trial Court since their appears no reason to differ with the ultimate conclusion of the "trial Judge. ( 29 ) MR. ( 29 ) MR. Basu contends that in a criminal trial the basis of prosecution case is the FIR and if the FIR appears to be doubtful, shaky and not trustworthy, any Court of law dealing with such FIR shall have the reasonable ground to question the credibility of the prosecution case. ( 30 ) MR. Basu contends that provision of Section 157 of the Cr. P. C. is not in the statute book unnecessarily, but, the purpose of incorporating Section 157 in the Criminal Procedure Code has been to safeguard the interest of innocent persons from the highhandedness of the police officials. It is the duty of the policy officer accepting an FIR to dispatch the same with utmost promptitude to the nearest Magistrate having jurisdiction over the matter so as to apprise him of the reported cognizable offence and also to avoid subsequent manipulation in the FIR. ( 31 ) MR. Basu contends that in this case P. W.-30 disclosed regarding receipt of R. T. message, but, no document came forward and if we look at the evidence of P. W.-1, P. W.-5 and P. W.-30, we will notice some glaring contradictions regarding the time of actual lodging of the FIR and when at the same time we find that although inquest was held at much subsequent time from filing of the FIR, but, mentioning of the FIR number appears in the inquest, we are bound to conclude echoing the conclusion of the learned trial Court that the FIR in question was antedated, anti-timed and perhaps a tainted document. ( 32 ) MR. Basu contends that an attempt was made with the help of exhibits 14 and 15 to show that FIR was dispatched on 22nd June, 2000, but, on close scrutiny, no reliance can be placed on Exhibits 14 and 15 which leads to the irresistible conclusion that there was unexplained and in ordinate delay in dispatching the FIR in utter violation of the mandatory provision of Section 157 of the Cr. P. C. and this delayed dispatch of FIR together with the fact of manipulation of FIR persuaded the learned trial Court to observe adversely against the veracity of the prosecution case. ( 33 ) MR. P. C. and this delayed dispatch of FIR together with the fact of manipulation of FIR persuaded the learned trial Court to observe adversely against the veracity of the prosecution case. ( 33 ) MR. Basu contends that from the nature of prosecution evidence it is very much clear that prosecution in order to establish its case against anjan Dasgupta and others under Section 302/34 of the I. P. C. relied on four pieces of evidence, evidence of eyewitnesses, seizure of maruti gypsy vehicle, seizure of bicycles and arrest of Anjan Dasgupta from Falakata after a considerable period of time from the filing of the FIR. ( 34 ) MR. Basu contends that if we examine the statement of so-called eyewitnesses who were examined as P. W.-1, P. W.-2, P. W.-3, P. W.-4, P. W.-6 and P. W.-10, we shall find much to the discomfort of the prosecution that all those witnesses contradicted each other on material part of their statement and their subsequent conduct along with their delayed examination by the investigation officer leads us to only one conclusion that all those witnesses were tutored to support otherwise weak and fragile prosecution case. Mr. Basu contends that the learned trial Court after analyzing the statement of so-called eyewitnesses rightly came to the conclusion that those witnesses were not trustworthy and there was no reason why prosecution could not bring any other trustworthy witness from the locality when admittedly the alleged occurrence took place in a broad daylight and at the heart of the town. ( 35 ) MR. Basu contends that some of the eyewitnesses were examined after unusual delay and theirstatements under Section 164 of the Cr. P. C. were also recorded in the similar manner and from this unusual delay, there are reasons to hold that they were procured witnesses to support the prosecution case otherwise the investigating officer could have examined them at the earliest opportunity soon after filing of the FIR. ( 36 ) MR. P. C. were also recorded in the similar manner and from this unusual delay, there are reasons to hold that they were procured witnesses to support the prosecution case otherwise the investigating officer could have examined them at the earliest opportunity soon after filing of the FIR. ( 36 ) MR. Basu contends that if we take into consideration the evidence of the garage owner then we will find that the maruti gypsy was abandoned much before the date of occurrence and naturally, the seizure of the maruti gypsy vehicle cannot be of any help for the prosecution side and, that apart, there is discrepancy in the statement of the alleged eyewitnesses regarding description of the maruti gypsy vehicle allegedly used by the accused persons. ( 37 ) MR. Basu contends that it has been held on several occasions by the Apex Court that mere abscondence of an accused from the place of occurrence cannot itself lend support to the prosecution allegation and in this particular case also alleged abscondence of Anjan Dasgupta cannot be of any help for the prosecution side. Mr. Basu has also challenged the prosecution case regarding the arrest of Anjan Dasgupta from Falakata on the ground that no credible evidence was produced to support this part of the prosecution case during trial and the learned Judge rightly discarded this part of the prosecution case. ( 38 ) MR. Basu, therefore, submits that when the trial Judge for convincing reason observed that the FIR was manipulated and it was antedated and when the alleged eyewitnesses cannot be accepted as trustworthy and their conduct subsequent to the occurrence gives enough scope to call in question their credibility, when the seizure of the maruti gypsy vehicle itself was full of doubt and when there was no convincing evidence regarding arrest of Anjan dasgupta from Falakata, the entire prosecution case was rightly thrown away by the learned Judge by recording an order of acquittal and there is no ground at all to differ from the final conclusion of the learned Judge and hence, the present appeal is bound to fail. ( 39 ) WE have considered submissions of Mr. Safiullah made on behalf of the State appellant and we have also considered submissions of Mr. Basu made on behalf of the respondent accused persons in the backdrop of prosecution evidence available with the record of the trial Court. ( 39 ) WE have considered submissions of Mr. Safiullah made on behalf of the State appellant and we have also considered submissions of Mr. Basu made on behalf of the respondent accused persons in the backdrop of prosecution evidence available with the record of the trial Court. ( 40 ) BEFORE recording our observation on the merit of the respective submissions of the parties, we would like to bring on record certain salient features of the prosecution case which we have derived from the impugned judgment as also from the prosecution evidence which were not disputed during hearing of this appeal. It is found from evidence that both Debal ghosh and Anjan Dasgupta belonged to the same political party and both of them were holding responsible position in the local party affairs. It is found from evidence that Debal Ghosh was murdered in the afternoon on 22nd june, 2000 and the place of murder was a local CPI (M) party office and it was by the side of a busy road. We get from the statement of P. W.-30 the investigating officer that there was public agitation over murder of Debal Ghosh and, in fact, local police had a tough time to control the agitating mob over such murder. ( 41 ) THE learned trial Court, after discussing the prosecution evidence and after considering the submissions of both prosecution and defence, rejected the prosecution case mainly on four points and those are manipulation in the FIR and the FIR being antedated and anti-timed, unusual delay in sending the FIR to the nearest Magistrate thus leaving enough scope for false implication of the accused persons, unreliable testimony of the alleged eyewitnesses and want of evidence to show apparent motive behind the murder. ( 42 ) MR. Basu, in fact, during his oral submissions and also by presenting his written note of argument reiterated the points taken by the trial Court in discarding the prosecution case. ( 43 ) WE shall first take up the point regarding manipulation of the FIR and also regarding the point as to whether the FIR was, in fact, an antedated and anti-timed one as alleged. ( 43 ) WE shall first take up the point regarding manipulation of the FIR and also regarding the point as to whether the FIR was, in fact, an antedated and anti-timed one as alleged. P. W.-30 stated during his examination in chief that he got the information regarding murder of Debal Ghosh through r. T. message and it is not his case that such message was reduced into a g. D. entry and naturally, there was no scope for the prosecution to produce and document relating to first information received over murder of Debal Ghosh. From the body of the FIR as well as from the formal part of the FIR we gather that Debal Ghosh was murdered at 4. 50 P. M. and the FIR Was lodged at 5. 35 p. M. and P. W.-1 had been at the P. S. and the FIR was written by P. W.-5 as per oral instruction of P. W.-1. It was submitted on behalf of the respondents with reference to the cross-examination of P. W.-1, P. W.-5 and P. W.-30 that fir was not lodged at 5. 35 P. M. as alleged, but, FIR was subsequently prepared to implicate the respondents. Our attention was drawn to that part of the FIR where mention was made about holding of inquest over the dead body and such inquest was held at about 10. 30 hours in the night. ( 44 ) WE have carefully examined the entire evidence of P. W.-1, P. W.-5 and the relevant part of the evidence of P. W. 30 regarding the lodging of FIR and after considering all the evidence, we do not find any ground to subscribe to the view taken by the learned Advocate for the respondents that FIR was antedated. It is very much clear from the statement of P. W.-30 that only on receipt of the FIR at the place of occurrence he started preliminary investigation and in course of investigation, he arranged for holding of inquest by another subordinate police officer and naturally, there was nothing wrong for mentioning the FIR number in the inquest report. It is very much clear from the statement of P. W.-30 that only on receipt of the FIR at the place of occurrence he started preliminary investigation and in course of investigation, he arranged for holding of inquest by another subordinate police officer and naturally, there was nothing wrong for mentioning the FIR number in the inquest report. ( 45 ) FROM the FIR as well as from the inquest report we find specific reference of the respondent Anjan Dasgupta and Biswanath Paul in particular and the entire FIR case was that both of them got down from a standing maruti gypsy vehicle and gave instruction to the four persons who came on two bicycles and one of those persons actually shot at Debal Ghosh resulting his death. In the FIR we find reference of respondent Sintu sitting in the vehicle and reference of Bhola Kundu was made as that of the owner of one of the bicycles left on the place of occurrence by the four persons who came there by two bicycles. ( 46 ) WE find that during trial prosecution examined its eyewitnesses and those eyewitnesses clearly deposed in Court in tune with the original fir case and there was never any attempt on the part of any of the eyewitnesses to make any statement adding further narration regarding involvement of either Anjan Dasgupta or Biswanath Paul. ( 47 ) THUS, having regard to the overall evidence of P. W.-1, P. W.-5 and p. W.-30, we are of the view that there is no foundation in the allegation of the respondents that the FIR was antedated or anti-timed or there was any manipulation in the FIR. ( 48 ) IT has been contended on behalf of the respondents that there was unusual delay in dispatching the FIR from the P. S and we find from record that FIR in question was sent to P. S. on 22nd June, 2000 although this part of the prosecution case was strongly disputed by the learned advocate for the respondents. From the endorsement made by the learned magistrate concerned we get that the FIR was placed before him on 22nd july, 2000 and we find from the record of the learned Magistrate that first order sheet was initiated on 25th July, 2000 when investigating officer submitted a prayer for issue of warrant of arrest against the FIR named accused persons. From the endorsement made by the learned magistrate concerned we get that the FIR was placed before him on 22nd july, 2000 and we find from the record of the learned Magistrate that first order sheet was initiated on 25th July, 2000 when investigating officer submitted a prayer for issue of warrant of arrest against the FIR named accused persons. ( 49 ) IT is the mandatory duty of a P. S. to dispatch the FIR with utmost promptitude on receipt of the same, but, if in a case there is unusual delay what would be the legal implication of such delay in the matter of sending of the FIR and this aspect has been clarified by the Hon'ble Supreme Court in the case of Anil Rai v. The State of Bihar (supra ). From the ratio of decision of Anil Rai's case it is clear that if no explanation was sought for regarding the delay in dispatching the FIR, if there is no ground to hold that such delay was prejudicial to the interest of the accused persons and if there is no tangible proof that there was manipulation in the FIR for the delay in sending the FIR, even extraordinary delay in sending the FIR cannot be a valid and legal ground to throw a prosecution case outright. ( 50 ) FROM the cross-examination of the investigating officer as P. W.-30 we find that no explanation was sought of regarding the delay in sending the fir and from the entire judgment of the trial Court nothing is found in support of any point taken by the accused persons for their interest being affected for such delayed dispatch of FIR. ( 51 ) NOW, on examination of the original FIR we do not find any sign of overwriting or manipulation and we have already stated that there was no attempt on the part of the prosecution to introduce, improve and embellish in the original FIR. ( 52 ) IN this context, we may also refer to the ratio of decision of the hon'ble Supreme Court of India in case of Rabindra Mahato and Anr. ( 52 ) IN this context, we may also refer to the ratio of decision of the hon'ble Supreme Court of India in case of Rabindra Mahato and Anr. v. The state of Jharkhand reported in MANU/sc/0129/2006 where at Para 18 the hon'ble Supreme Court has observed "there cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157, Cr. P. C. are for the purpose of having a fair trial without there, being any chance of fabrication or introduction of the fact at subsequent stage of investigation. " in the said judgment the Hon'ble Supreme Court at Para 19 has also observed delay in recording of the FIR and delay in sending the same to the Magistrate, at best, can be taken to be an infirmity in the investigation, but, where prosecution has led reliable evidence, the veracity of such evidence is not dislodged either by delay in recording of the FIR or any delay in sending the same to the Magistrate. ( 53 ) THUS, we do not find any merit in the contention of Mr. Basu that the entire prosecution case should be discarded for the mere ground of delay in dispatching the FIR. ( 54 ) FROM the FIR we find that the specific allegation against Anjan dasgupta, Biswanath Paul and other respondents except Basudev Paul was that they hired the persons for killing Debal Ghosh and it was clear from their action which was in the nature of their physical presence on the spot and their action to have the assassinators with them so that they could not be detected. It is pertinent to mention that after completion of investigation no clue could be detected for apprehension of the actual assassinators and for the reason charge-sheet was submitted against Anjan Dasgupta and biswanath Paul and others for murder of Debal Ghosh and charge was also framed under Section 302/34 of the I. P. C. ( 55 ) FROM the nature of prosecution evidence we find that prosecution sought to prove its case both by direct as well as by circumstantial evidence. ( 56 ) NOW, coming to direct evidence we find that prosecution examined p. W.-1 one of the sons of the deceased and who was also the FIR maker and who runs a medicine shop just by side of the place of occurrence. Prosecution also examined P. W.-2, P. W.-3, P. W.-4, P. W.-6 and P. W.-10 who were the persons present near the place of occurrence and who had deposed about the arrival of the maruti gypsy near the place of occurrence, about presence of Anjan Dasgupta and Biswanath Paul on the place of occurrence and also about giving of instruction by them to shot at Debal Ghosh and thereafter by taking those persons in their maruti gypsy vehicle. ( 57 ) FROM the statements of P. W.-1, P. W.-2, P. W.-3, P. W.-4, P. W.-6, p. W.-10 and also from P. W.-21 we find that all of them deposed about arrival of a maruti gypsy vehicle, presence of Anjan Dasgupta and Biswanath Paul on the place of occurrence and also about giving of instruction to shot at debal Ghosh and subsequently for helping the persons to flee away from the place of occurrence by getting inside the Maruti Gypsy vehicle. ( 58 ) MR. Basu during his oral submission and through his written note picked up some sentences from the cross-examination of the eyewitnesses and endeavoured to project that those witnesses made contradictory statements and those witnesses did not speak about presence of the respondents on the place of occurrence. ( 59 ) MR. Basu also challenged the statement of eyewitnesses on the ground that some of the eyewitnesses in their statement under Section 164 of the Cr. P. C. made significant deviation from their statements given to the investigating officer. Another point of attack of Mr. ( 59 ) MR. Basu also challenged the statement of eyewitnesses on the ground that some of the eyewitnesses in their statement under Section 164 of the Cr. P. C. made significant deviation from their statements given to the investigating officer. Another point of attack of Mr. Basu has been that some of the eyewitnesses gave their statement before the learned Magistrate long after starting of the prosecution case. ( 60 ) WE have carefully examined the statement of the witnesses and also their statement recorded under Section 164 Cr. P. C. and we find that there was attempt on the part of one or two witnesses to add something more during their statement recorded before the learned Magistrate, but, as a whole all the eyewitnesses sticked to their earlier statement given before the I. O. and they made the same statement before the trial Court during their examination. ( 61 ) FROM the record we find that although FIR was lodged on 22nd june, 2000 and although most of the FIR named accused persons were residents qf the locality, as per statement of P. W.-30, the investigating officer, warrant of arrest could be executed only on 13th August, 2000 when Anjan dasgupta was arrested and thereafter Sintu Roy and others were arrested after execution of warrant and proclamation and attachment. In that background, we do not find any abnormality in examination of some of the witnesses in the month of August and September, 2000 and recording of their statements before the learned Magistrate. ( 62 ) THUS, when we take into account the unusual delay in the matter of effecting arrest of the FIR named accused persons, we do not share the view of the learned Advocate for the respondents that since there was delay in examination of some of the eyewitnesses, their statement shall have no importance. ( 63 ) THUS, from the evidence on record we get that several witnesses of the locality who were present on the place of occurrence had noticed Anjan dasgupta and Biswanath Paul on the place of occurrence and also noticed their active participation in the matter of murder of Debal Ghosh and in this context we want to record that the learned trial Court totally misdirected itself in the matter of appreciation of the evidence of the eyewitnesses. ( 64 ) AS regards circumstantial evidence, prosecution has drawn attention to the seizure of two bicycles which were left by the four persons one of whom actually murdered Debal Ghosh and also about seizure of the maruti gypsy vehicle. We have examined the statement of the garage owner P. W.-25 along with P. W.-26 and we find that the Maruti gypsy vehicle was, in fact, seized after occurrence and by no imagination it can be stated that Maruti gypsy vehicle was in the garage prior to the occurrence as contended by the learned Advocate for the respondents. It is important to mention in this context that arrival of the Maruti gypsy vehicle on the place of occurrence and description of the Maruti gypsy vehicle found place in the statement of all the eyewitnesses of the prosecution. ( 65 ) THE prosecution side also emphasized the fact of arrest of Anjan dasgupta from Falakata as an additional point against the respondent accused which the learned Advocate for the respondents disputed strongly for want of convincing proof of such arrest from Falakata and without entering into such controversy, we find from record that Anjan Dasgupta was produced under arrest only on 13th August, 2000 although it is amply demonstrated from the evidence on record that Anjan Dasgupta was a man of the locality and he was named in the FIR lodged on 22nd June, 2000. ( 66 ) WE have indicated earlier that the grounds of recording an order of acquittal against the respondents were that of manipulation of the FIR, F1r being antedated and anti-timed, delayed dispatch of the FIR and also want of convincing evidence involving the respondents. ( 67 ) WE have already discussed after analyzing the evidence on record that we are conviced that all the points on which the learned trial Court recorded the order of acquittal had no merit at all. ( 68 ) IN a case of direct evidence, prosecution is not required to prove any motive and this was also the observation of the learned trial Court, but, at the latter part of the judgment the learned trial Court also made it a point for acquittal that there was no proof regarding motive behind murder of Debal ghosh. ( 68 ) IN a case of direct evidence, prosecution is not required to prove any motive and this was also the observation of the learned trial Court, but, at the latter part of the judgment the learned trial Court also made it a point for acquittal that there was no proof regarding motive behind murder of Debal ghosh. We find from evidence of P. W.-1 and also from the FIR that there was business rivalry between Debal Ghosh and Anjan Dasgupta and this was a sufficient motive and we reiterate that in a case where prosecution relies on direct evidence motive does not assume much importance. ( 69 ) WE are aware of the legal position that in entertaining an appeal over an order of acquittal, if two views are possible on making proper interpretation of the available evidence, the view going in favour of the respondents must be given due importance, but, it is also settled position of law that in a case where order of acquittal has been made on improper and erroneous assessment of evidence, it is always open to the Court of appeal to make proper and reasonable appreciation of evidence and if on such appreciation of evidence there appears ground to differ with the order of acquittal, the Court of appeal shall not hesitate to reverse the same. ( 70 ) FROM scanning of the entire prosecution evidence and having regard to the submission of the respective parties, we are constrained to hold that the learned trial Court was totally wrong both in law, and, in fact, in making its observation that the FIR was antedated and anti-timed and a manipulated one. The trial Court also erred in law by discarding the FIR for delay in dispatching the same to the Court of the Magistrate. ( 71 ) NOW, coming to the appreciation of the prosecution evidence we have already indicated that prosecution successfully established its case against Anjan Dasgupta and Biswanath Paul and we are also of the view that there was no sufficient evidence to hold Sintu @ Saroj Roy and Bhola Kundu guilty for the murder of Debal Ghosh. ( 72 ) THUS, in view of our above discussion we are inclined to allow this appeal in part. ( 72 ) THUS, in view of our above discussion we are inclined to allow this appeal in part. We set aside the order of acquittal as regards respondent anjan Dasgupta and Biswanath Paul, but, we confirm the same as regards sintu @ Saroj Roy and Bhola Kundu. We have already observed that there is practically no evidence against Basudev Paul to hold him guilty under Section 212 of the l. P. C. ( 73 ) WE, therefore, record an order of conviction under Section 302/34 against respondent Anjan Dasgupta and Biswanath Paul and both of them are sentenced to suffer rigorous imprisonment for life and to pay a fine rs. 2,000/-in default rigorous imprisonment for three months more. ( 74 ) WE find from record that Anjan Dasgupta and Biswanath Paul were released on bail after admission of the appeal, we cancel their bail bond with immediate effect and we direct them to surrender before the learned trial Court within a month from this order failing which the trial Court will issue warrant of arrest against those persons and send them to prison to serve out the sentence. ( 75 ) RESPONDENT Bhola Kundu, Sintu @ Saroj Roy and Basudev Paul are discharged from their respective bail bond. ( 76 ) THE C. R. R. No. 2263 of 2003 also stands disposed of. ( 77 ) SEND L. C. R. along with copy of this judgment be sent immediately to the trial Court. Xerox certified copy of this judgment and order be delivered to the learned Advocate for Anjan Dasgupta and Biswanath Paul free of cost immediately.