Judgment Abhijit Sinha, J. 1. The five appellants herein along with 6 others, namely, Mahadeo Mandal, Suresh Halwai, Yogendra Halwai, Arun Kumar Singh, Sargun Yadav and Prakash Prasad Singh were put on trial in Sessions Trial No. 280 of 1990 arising out of Rajaun P.S. Case No. 147 of 1989 on the charges under Sections 448, 148, 364/34, 380/34 and 153A/34 I.P.C. By judgment dated 16.12.1992 Sri D.N. Chakravarty the then 7th Additional Sessions Judge, Bhagalpur, while acquitting the six accused named hereinabove of all the charges framed against them convicted the appellants herein on all five counts and by order dated 19.12.1992 sentenced each of them to undergo rigorous imprisonment for one year under Sec. 448 IPC, rigorous imprisonment for two years under Sec. 148 I.P.C. rigorous imprisonment for three years under Sec. 153A/34 l.P.C. and rigorous imprisonment for 7 years and a fine of Rs. 2000/- each and in default thereof to suffer further rigorous imprisonment for two years for the offence under Section 364/34 I.P.C. All the sentences Were directed to run concurrently except the sentence of payment of fine. 2. The prosecution case was set in motion when Md. Mahmood in the wake of the communal riots in the District of Bhagalpur gave his fardbeyan (Ext. 1) at about 5 P.M. on 6.12.1989 in village Balias alleging therein inter alia, that at about 11 A.M. on 27.10.1984, the blissful silence was shattered by loud shouting of slogans coming from the western periphery of his village Malohi and he and other co-villagers saw a hysteric crowd of some 5000 people variously armed with lathi, bhala, garasa etc. and raising vociferous shouts of jai bajrangwali coming towards the village. It is alleged that the members of the mob were raising unethical cries of "loot away the house hold articles, set the houses on fire and kill the Muslims of the village Malohi", whereupon whereas some of the villagers fled away, others along with the informant concealed themselves in the nearby paddy fields. It has further been alleged that the informant saw Suresh Mandal armed with a gun, Mahadeo Mandal armed with spear, Suresh Halwai, Yogendra Halwai, Kailash Goswami, Tulsi Tanti and Khublal Tanti armed with lathi, Prakash Prasad Singh, Satto Pd. Singh, Diwakar Pd. It has further been alleged that the informant saw Suresh Mandal armed with a gun, Mahadeo Mandal armed with spear, Suresh Halwai, Yogendra Halwai, Kailash Goswami, Tulsi Tanti and Khublal Tanti armed with lathi, Prakash Prasad Singh, Satto Pd. Singh, Diwakar Pd. Singh armed with swords, Sanjiv Prasad Singh and Nebi Lai Singh armed with garasa, Arun Kumar Prasad and Sargun Yadav armed with bhala along with other residents of nearby villages. It is said that rioters looted the household articles from the houses of the Muslims and thereafter went away. On darkness setting in the informant claims to have gone to the house of Shyam Sundar Ram @ Tena Ram in village Nawada who was friend of his father and there the informant found that his father Md. Tabul, his mother Maimum, his younger brothers Md. Kalim and Md. Samud had already reached there from before. 3. The further case of prosecution is that it was decided amongst the informant and his family members to reach village Balias in order to save their lives from the rioting Hindus and they set out from village Nawada at about 1.30 A.M. and when the party reached a culvert located on the eastern side of village Malohi they found accused Satto Prasad Singh, Diwakar Prasad Singh, Khublal Tanti, Sanjiv Prasad Singh, Tulsi Das, Kailash Goswami and Nebi LaL Singh present there armed with deadly weapons. It is alleged that Sanjiv dealt a garasa blow on the father of the informant who fell down on the ground, Diwakar assaulted Maimum with spear who also fell down and Satto dealt a blow with his sword on the younger brother of the informant, namely, Md. Kalim aged about 3 years. The other brother of the informant and the informant himself concealed themselves in the nearby paddy field where from they witnessed the occurrence. It is said that when the rioters left the place both of them came out of the hiding and went to village Balias where they were staying when the F.I.R. was recorded. It was alleged that the rioters had taken away the dead body of the parents and brother of the informant with them. It is said that when the rioters left the place both of them came out of the hiding and went to village Balias where they were staying when the F.I.R. was recorded. It was alleged that the rioters had taken away the dead body of the parents and brother of the informant with them. On the basis of the said fardbeyan Rajaun P.S. Case No. 147/1989 came to be registered and after due investigation a charge sheet was submitted against 14 accused persons of whom Suresh Mandal and Mahadeo Mandal were shown as absconders. 4. It will not be out of place to mention here that Mahadeo Mandal appeared in Court subsequently and faced the trial. It will also not be out of place to mention that when the examination of material witnesses was over Nebi Lal Singh and Kailash Goswami chose to abscond and their trial had to be separated from that of the remaining others vide order dated 2.11.1992. 5. In support of its case the prosecution examined only 4 witnesses and some documents were also filed as exhibits. However the Investigating Officer has not been examined and there is no explanation for the same. 6. The defence plea is one of innocence and false implication exclusively on the ground of suspicion. 7. The learned Trial Court after consideration of the materials available on record recorded the verdict of guilt against the five appellants and sentenced them as stated hereinbefore. 8. The learned counsel for the appellants sought to assail the impugned judgment of conviction on several grounds primarily of which was that there had been inordinate delay in lodging the F.I.R. and there was no plausible explanation for the same. In this connection it was sought to be pointed out that the alleged occurrence of looting took place in the evening of 27th October 1989 and on the night in between 27th and 28th October 1989 the alleged attack on the family members of the informant but the F.I.R. came to be lodged only on 6.12.1989 after a lapse of almost a month and a half and this by itself causes an element of doubt and suspicion on the bonafides of the prosecution case. 9. The reason for the delay in lodging the F.I.R. can be found in the deposition of the informant, Md. 9. The reason for the delay in lodging the F.I.R. can be found in the deposition of the informant, Md. Mahmood (P.W. 2), who stated in his examination in chief that as none was ready to go to the police station with him out of fear rising from the volatile situation he could not give his fardbeyan and it was only when the A.S.I, of Rajaun P.S. came to the village that he gave his fardbeyan. The explanation seems to be rather lame as peace had been restored in the District of Bhagalpur much prior thereto and shortly after the riots were forced to end. 10. It was next submitted on behalf of the learned counsel for the appellants that no offence whereunder the conviction has been recorded were made out against any of the appellants and the judgment was against the weight of evidence available on record. 11. In this connection it would only be appropriate to delve into the testimony of all the witnesses. The informant (P.W. 2) in course of his examination in chief sought to support the story divulged in the fardbeyan with minor variation. He identified Satto, Diwakar, Sanjiv, Nebi Lal, Kailash Goswami, Khublal and Tulsi and also disclosed the arms that they were carrying. He also stated of having taking shelter in the house of the friend of his father in village Nawada and of leaving the same in the depth of the night for village Balias and of being attacked by the named assailants. The witness claimed to identify the assailants in the light of the torch in the hand of his father. The witness also identified the accused persons in the Court although he failed to identify Mahadeo Mandal, Suresh Halwai and Yogendra Halwai and it will appear that the witness had not named these persons in course of his testimony in Court. In course of his cross examination the witness stated that Shyam Sundar had advised them to leave village Nawada or else the Hindu would kill them and it was on that advise that they had started for village Balias. The witness has further stated that he had not fled away when the incident near the culvert took place in the depth of the night and had seen the entire occurrence from his place of hiding in the paddy field. The witness has further stated that he had not fled away when the incident near the culvert took place in the depth of the night and had seen the entire occurrence from his place of hiding in the paddy field. He also gave details of the attack on his parents and brothers. He denied the defence suggestion that a false case has been instituted for taking compensation from the Government. 12. Md. Samud, the brother of the informant, aged about 13 years, figures as P.W. 1. After the initial examination by the Court to test his capability to figure as a witness he sought to support the prosecution case in material particulars including the incident of barbaric attack on his parents and younger brother at the culvert in the depth of the night. This witness identified Diwakar, Nebi Lal and Satto who were present in the Court on that day but failed to identify Mahadeo, Yogendra, Sargun and Arun Singh. He like his elder brother P.W. 2 also stated that the appellants had carried away the dead bodies with them. In course of his cross examination he could not say if the dead bodies of his parents and the brother had been cremated or buried. He too denied the prosecution suggestion of the case having been instituted for availing compensation from the Government. 13. Md. Anis figures as P.W. 3 and he too has followed in the foot steps of P.Ws. 1 and 2 in course of his testimony in Court. 14. P.W. 4 is Md. Sakur, the Clerk of the Public Prosecutor who has come forward to identify the fardbeyan (Ext. 1), formal F.I.R. (Ext-2) and paragraphs 1 to 113 of the case diary (Ext. 3). 15. The appellants are accused of having committed the offence under Section 153A/34 I.P.C. The evidence on this aspect is that a huge vociferous crowd of some 5000 persons were raising slogans of Jai Bajrang Bali and they were also instigating people to loot and set on fire the house of the Muslims and kill them. Sec. 153A relates to promoting feelings of enmity, hattered or ill will between two different religious or racial or language or regional groups or castes and community. It covers a case where a person by himself either spoken or written or by signs or by visible representations promotes of attempts to promote such feelings. Sec. 153A relates to promoting feelings of enmity, hattered or ill will between two different religious or racial or language or regional groups or castes and community. It covers a case where a person by himself either spoken or written or by signs or by visible representations promotes of attempts to promote such feelings. The Section involves an element of degradation of one religious or racial or regional group or caste and communities in eyes of other classes and that the community carries a low and poor influence of the degraded community. The factum of degradation so far as the prosecution party is concerned has not been made out from the evidence of the witnesses examined by the prosecution. What the witnesses have stated is of their fear psychosis. As such in my opinion no offence under Section 153A can be said to have been made out against the appellants. 16. So far as the offence under Section 364/34 I.P.C. is concerned it involves abduction of persons in order that such person may be murdered or may be so deposed of as to be put in danger of being murdered. In the instant case from the testimony of the three witnesses examined by the prosecution it appears that the parents and the younger brother of the informant were already dead before they were allegedly taken away by the appellants. In my opinion no offence under Section 364 I.P.C. can be said to have been made out against the accused persons since when the appellants and younger brother of the informant were allegedly taken away the intention to kill them was not there or in other words such intention did not transpire in evidence. It could, at best, be a case of one under Sec. 201 I.P.C. 17. So far as the offence under Section 380 I.P.C. is concerned the same involves theft in any building, tent or vessel which is used as a human dwelling or used for the custody of property. 18. It transpires from the evidence available on record that a mere allegation of looting of houses of Muslims and taking away of articles therefrom has been alleged without specifying the articles which were taken away and identifying the persons who took them away. Therefore, the essential ingredients of an offence under Sec. 380 I.P.C. has not been made out so far as the appellants are concerned. 19. Therefore, the essential ingredients of an offence under Sec. 380 I.P.C. has not been made out so far as the appellants are concerned. 19. So far the offence under Section 448 I.P.C. is concerned it involves commission of house trespass. The evidence by the prosecution does not indicate as to which of the appellants had trespassed into whose house and that too with criminal intention. Therefore, the offence under Sec. 448 I.P.C. also cannot be said to have been made out against the appellants. 20. Finally coming to the charge of offence under Sec. 148 I.P.C. it appears that 11 persons had been charged under these offence and some of the persons who had been identified by the witnesses or had been named in the fardbeyan have been acquitted by the learned Trial Judge but it is on the same set of evidence that these appellants have been convicted. It will appear that whereas the charge sheet has been submitted against 14 persons and charge has been framed against 13 persons the informant (P.W. 2) has identified Satto, Diwakar, Sanjiv, Nebi Lal, Kailash Goswami, Khublal Tanti, Tulsi Tanti and his brother Md. Samud (P.W. 2) could identify only Diwakar, Nebi Lai and Satto and P.W. 3 Md. Anis also identified Diwakar, Khublal, Tulsi, Nebilal and Kailash Goswami and P.W. 3 in specific terms stated that he had not seen Satyanarayan Singh, that is Satto, during the occurrence. In the face of such divergent identification it would not be safe to rely on the testimony of the three witnesses. 21. Taking into consideration the non satisfactory explanation for the delay in lodging the fardbeyan and the divergent identification by the witnesses of the alleged assailants coupled with the prejudice caused to them by the non examination of the I.O. as also independent witnesses, it would not be safe to uphold the judgment of conviction. 22. Accordingly the judgment of conviction and order of sentence passed by the learned 7th Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 280 of 1990, is hereby set aside. The appellants who are on bail are discharged from their liabilities of their respective bail bonds.