JUDGMENT : A.S. Naidu, J. - The judgment dated 16th August,1993 passed by learned 1st Addl. Sessions Judge, Cuttack acquitting the accused persons from the charges under Sections 394, 302/34 of the Indian Penal Code in S. T. No. 406/1992 is assailed by the State of Orissa in this Government Appeal. 2. According to the prosecution case Smita Acharya (P.W. 5) had a shop room at Tulsipur, Cuttack Town. Bibhuti Panda had taken the said room on rent and opened a readymade garments shop. Smita Acharya (P.W. 5) happens to be the patteral aunt of accused Sandip Acharya @ Raja. The father of Sandip Acharya @ Raja and Smita Acharya were related to each other as brother and sister. In a family partition the shop room was allotted to the share of Smita Acharya and she had rented the same to Bibhuti Panda at a monthly rent of Rs. 4,000/-. Accused Sandip Acharya @ Raja threatened Bibhuti Panda before the occurrence and called upon him to vacate the rented house or to pay the rent to him. He had also demanded a sum of Rs. 10,000/ - from him. On 9th July,1992 Bibhuti Panda had been to Madhupatna where he had given his Scooty for repair. He was returning to his house through fly-over bridge near by Railway Station in a Bullet Motor Cycle belonging to the mechanic. At that juncture four accused persons came in two Scooters and accused Sandip Acharya @ Raja and Tuku Mohanty obstructed his passage. Thereafter accused Sandip Acharya @ Raja and Tuku Mohanty attacked him with iron pipe. Bibhuti Panda tried to run away toads the middle part of the fly-over and save his life. But then accused persons namely, Tuku @ Prasant Singh and Raja Singh got down from other Scooter and assaulted him by means of iron rod, consequently Bibhuti Panda fell down on the fly-over bridge and sustained grievous injuries. The accused persons snatched away one money purse in which there was a cash of Rs. 2,500/-, one wrist watch and one gold ring from Bibhuti Panda On hearing commotion P.W. 3, a constable who was doing anti-robbery duty at the place came to the spot and saw the accused persons assaulting Bibhuti Panda and decamping without booty. The accused persons snatched away one money purse in which there was a cash of Rs. 2,500/-, one wrist watch and one gold ring from Bibhuti Panda On hearing commotion P.W. 3, a constable who was doing anti-robbery duty at the place came to the spot and saw the accused persons assaulting Bibhuti Panda and decamping without booty. He took Bibhuti Panda to Malgodown P. S. in a rickshaw where Bibhuti Panda lodged an F.I.R., basing upon which Inspector-in-charge Malgodown P.S. registered a case u/s 394 of I.P.C. and handed over the investigation to the S.I. (P.W. 12). Subsequently, Bibhuti Panda succumbed to the injuries and the case was turned to one under Sections 394, 302 and 34 of the Indian Penal Code and the investigation was taken over by the Crime Branch. 3. In course of investigation a black dial watch and cash of Rs. 607- were seized from the accused Prasanta Singh, a scooter bearing Regn. No. OR-05-4393 used for commission of the offence and cash of Rs. 60/- were seized from the accused Tarbinder Singh(r) Raju. Another Scooter was seized from the accused Sandip Acharya @ Raja. All four accused persons were arrested and charge sheet was submitted in the Court of learned S. D. J. M. (S), Cuttack in G. R. Case No. 901/ 1992. Learned S. D. J. M. on being satisfied that a prima facie case was made out committed the case to the Court of Session for trial. 4. The plea of the accused-Sandip Acharya @ Raja was complete denial. In his statement made u/s 313 Code of Criminal Procedure he took a plea that after the death of his father Sarat Acharya, the properties were joint and Smita Acharya (P.W. 5) who is his aunt was trying to deprive him of his share and Bibhuti Panda (deceased) and his family members being close to Smita Acharya had made a plan to permanently deprive him from his property and they combinedly conspired to file the case making false statements. 5. In order to substantiate its case, prosecution got examined thirteen witnesses. P.W. 1 was the brother of the deceased Bibhuti Panda, who had no direct knowledge about the incident. P.W. 2 was the motor cycle mechanic who had lent the Bullet motor cycle to Bibhuti Panda on the date of incident. 5. In order to substantiate its case, prosecution got examined thirteen witnesses. P.W. 1 was the brother of the deceased Bibhuti Panda, who had no direct knowledge about the incident. P.W. 2 was the motor cycle mechanic who had lent the Bullet motor cycle to Bibhuti Panda on the date of incident. P.W. 3 was the constable who was in anti-robbery duty on the fly-over and saw the incident. He had identified the accused persons and took the injured in a rickshaw to the Malgodown Police Station and thereafter to the Hospital. P.W. 4 was the inquest witness. P.W. 5 was the aunt of accused Sandip Acharya (c)Raja who claimed to be the owner of the s. hop room which was let out to Bibhuti Panda (deceased) for the purpose of opening a garments shop. She had also deposed with regard to the earlier threat given by accused Sandip Acharya @ Raja to Bibhuti Panda. P.W. 6 was the Traffic Constable, who came to the place of occurrence hearing the commotion and saw the incident. He had also identified the accused persons. P.W. 7 was the brother of deceased Bibhuti Panda, who went to the P.S. after receiving information and scribed the F.I.R. He was also present when Bibhuti Panda was discharged from Hospital on 10.7.1992. It appears that few days thereafter complicacy developed and Bibhuti Panda once again was admitted in the hospital where he died on 14. 7,1992. P.W. 8 was a witness to the seizure of watch, on the basis of the statement given by the accused Prasan Singh when he was in custody. P.W. 9 was the doctor who conducted post mortem on 15.7.1992 and submitted his report (Ext.6). P.W. 10 was the father of the deceased who had no direct knowledge about the occurrence. P.W. 11 was the doctor who treated Bibhuti Panda when he was admitted in the hospital soon after the occurrence. P.W. 12 was the Investigating Officer and had recorded the statement of Bibhuti Panda which was marked as Ext.10 and threated it as dying declaration. P.W. 13 was the C.I.D. (C.B.), who took up investigation and seized the scooter from the house of maternal grand-father of accused Sandip Acharya @ Raja and arrested him and also arrested other accused persons. 6. On behalf of offence, no witness was examined. 7. Learned 1st. Addl. P.W. 13 was the C.I.D. (C.B.), who took up investigation and seized the scooter from the house of maternal grand-father of accused Sandip Acharya @ Raja and arrested him and also arrested other accused persons. 6. On behalf of offence, no witness was examined. 7. Learned 1st. Addl. Sessions Judge after discussing the evidence in extensoby a well discussed judgment came to the conclusion that the prosecution had failed to establish the charge of robbery and there was absolutely no evidence against the accused persons. The recovery of the stolen properties were neither proved, nor the identity of the watch seized was established. It was further held that the prosecution also failed to prove that the accused persons came with iron rod and G.I. pipe and assaulted Bibhuti Panda on the fly-over near the Railway Station and decamped the booty such as cash, wrist watch and gold ring. According to learned 1st. Addl. Sessions Judge the prosecution failed to prove the said facts against the accused persons beyond all reasonable doubts and the accused persons were entitled to benefit of doubt. On the basis of such conclusions, all the accused persons were acquitted. 8. The State of Orissa assails the aforesaid judgment mainly on the ground that the learned 1st. Addl. Sessions Judge failed to appreciate the fact that all the injuries being anti mortem and the cause of death being homicidal in nature the Court below acted illegally in acquitting the accused persons who were the authors of the crime. It is further submitted that learned 1st. Addl. Sessions Judge committed illegality in disbelieving the evidence of P.Ws. 3 and 6, the two constables who had seen the occurrence, on flimsy grounds. According to learned Addl. Government Advocate the conclusion that the F.I.R. (Ext.4) had been anti-dated was not justified and he also committed an error by not accepting the statement made by the deceased u/s 161 Code of Criminal Procedure and treat the same as dying declaration (Ext.10). In short, it is submitted that the evidence of the eye witnesses having been corroborated by the medical evidence as well as the dying declaration (Ext.10), acquittal of the accused persons was not justified. 9. All the submissions are strongly repudiated by learned Counsel for the accused-Respondents. According to the learned Counsel, the incident took place way back in the year 1992. 9. All the submissions are strongly repudiated by learned Counsel for the accused-Respondents. According to the learned Counsel, the incident took place way back in the year 1992. The order of acquittal was passed in the year 1993. Sixteen years have passed in the meanwhile. That apart, learned 1st Addl. Sessions Judge has elaborately discussed the evidence and the conclusions arrived at cannot be said to be without any basis. The prosecution has totally failed to point out any error apparent on the face of the judgment. Last but not the least, the reasoning given by learned 1st. Addl. Sessions Judge being cogent and based upon discussion of the evidence, both oral and documentary, this Court should be slow to interfere with the same and even if Anr. view may be possible, the order of acquittal may not be interfered after lapse of so many years. 10. To appreciate the arguments advanced by learned Counsel for both parties, this Court meticulously went through the evidence. Admittedly, a dispute pre-existed between Bibhuti Panda (deceased) and the main accused Sandip Acharya @ Raja with respect to the shop room which Bibhuti Panda had taken on rent from the maternal aunt (P.W. 5) of the said accused. From the statement made u/s 313 Code of Criminal Procedure by accused Sandip Acharya @ Raja it appears that he was advancing an exclusive right over the shop room and entertained a grudge against Bibhuti Panda as he and his family members in connivance with the maternal aunt (P.W.5) were trying to deprive him from his paternal properties after the death of his father. 11. According to the prosecution case, on the date of occurrence while Bibhuti Panda was returning in a Bullet motor cycle, on the flyover near Railway Station four accused persons came in two scooters, blocked his way, assaulted him with iron pipe and snatched away the money purse, wrist watch and gold ring and decamped. To establish the said fact, the persecution solely depends upon two witnesses being P.W. 3, a constable who was on anti robbery duty at the fly-over and P.W. 6 the Traffic Constable. Both the aforesaid witnesses stated to have seen the occurrence. They also deposed that they knew the accused persons. who were involved in many crimes. To establish the said fact, the persecution solely depends upon two witnesses being P.W. 3, a constable who was on anti robbery duty at the fly-over and P.W. 6 the Traffic Constable. Both the aforesaid witnesses stated to have seen the occurrence. They also deposed that they knew the accused persons. who were involved in many crimes. In cross-examination P.W. 3 could not say as to who-scribed the F.I.R. He had also admitted that neither the I.I.C. nor any other officer of Malgodown P.S. had visited the hospital during his stay there. According to him, he stayed at the hospital till 9 to 10 P.M. and returned to Thana only at 12. 30 A. M. He could not say the name of the doctor who had treated the injured. He also could know the name of rickshaw puller or the rickshaw number in which the deceased was taken by him from the fly-over to the Police Station. Surprisingly, the rickshaw puller had not been examined in the case. According to P.W. 3 the brother of Bibhuti Panda came to the P.S. soon after Bibhuti was taken there. It appears that the constable though saw the occurrence had not lodged any F.I.R. He waited till the brother of Bibhuti came and lodged the F.I.R. on the basis of what was told to him. Perusal of the entire evidence reveals that there are lot of discrepancies with regard to filing of the F.I.R. The time lag between the occurrence and filing of the F.I.R. had not been explained. P.W. 3 had admitted that he could not hear what Bibhuti Panda stated in a low voice. The note book issued to the constables on duty to take note of the incidents was not produced. Even otherwise, according to P.W. 3 by the time the Traffic Constable (P.W. 6) reached at the spot, the incident was over. Reading of the entire evidence reveals that he had not made any attempt to either stop the accused persons from committing the offence or to snatch away the iron rod. According to P.W. 3 the house of accused Sandip Acharya @ Raja was at Jobra, but then fact remains the house of the said accused was at Tulsipur. P.W. 3 stated that he could identify the accused persons as several criminal cases were pending against them. According to P.W. 3 the house of accused Sandip Acharya @ Raja was at Jobra, but then fact remains the house of the said accused was at Tulsipur. P.W. 3 stated that he could identify the accused persons as several criminal cases were pending against them. On verification, it was found that the accused persons were not involved in any criminal case. Lots of discrepancies appear in the evidence of P.Ws. 3 and 6. Unfortunately, the rickshaw puller who should have been the best witness to establish the fact that the assault took place on the flyover, was kept out of the Court. Thus, the Sessions Judge rightly disbelieved the statement of the aforesaid two witnesses. After going through the evidence of P.Ws. 3 and 6, this Court also finds that a genuine doubt arises about the fact of writing of the F.I.R. by the brother of the deceased vis-a-vis the depositions made by P.Ws. 3 and 6. P.W. 7 claims to be the scribe of the F.I.R. According to him at about 6. 15 P.M. he was at his shop at Mangalabag. On receiving information that his brother has been assaulted at fly-over and a constable on duty had taken him to Malgodown Police Station, he went to the said P.S. immediately. According to him he saw his brother lying in a rickshaw outside the Police Station and was bleeding profusely. On being asked, Bibhuti Panda told him that while he was coming from OMP Chhak the accused persons came in two scooters stopped him and then attacked him by G.I. pipe and iron rod. He also told him that the accused persons snatched away one wrist watch, gold ring and cash of Rs. 2,5007-. According to P.W. 7 the condition of his brother was serious. It is stated that he and his brother went inside the P.S. and as per the narration of his brother he wrote down in a paper and put his signature which was treated as an F.I.R. Thereafter, it is stated that requisition was issued and Bibhuti was removed to casualty of S.C.B. Medical College-Hospital, Cuttack where he was treated and then shifted to Surgery Ward. Perusal of the cross-examination reveals that he was not a truthful witness inasmuch as though Smita Acharya (P.W. 5) was examined soon before him and was present in Court, he completely denied about the said fact. Perusal of the cross-examination reveals that he was not a truthful witness inasmuch as though Smita Acharya (P.W. 5) was examined soon before him and was present in Court, he completely denied about the said fact. According to P.W. 7, he did not know the Inspector, Crime Branch (P.W. 13) but then in the very next sentence of his deposition he admitted that he had been examined in the case by the I.O. though he could not state the date and time when he was examined by P.W. 13 and the place where he was examined. Reading of the entire evidence of the aforesaid witness gives an impression that he had not come with clean hands and his evidence was neither reliable nor trust worthy as the same as full of prevaricating statements. Learned 1st. Addl. Sessions Judge had also discussed his evidence vividly and had come to a finding that P.W. 5 was not a truthful witness. 12. Apart from the aforesaid three witnesses the other witnesses were post occurrence witnesses. So far as the medical evidence is concerned, it appears that Bibhuti Panda was assaulted on 9.7.1992. He was treated in the hospital, got cured and was discharged. Thereafter, again he developed certain complications and was readmitted in the hospital where he expired on 15.7.1992. Perusal of the evidence of P.W. 9 as well as other doctors gives an impression that after Bibhuti Panda was discharged from the hospital complications might have developed due to lack of proper care. Thus, it cannot be conclusively said that the death occurred due to the injuries. Apart from the aforesaid fact, the injury certificate and other treatment papers were not properly proved by the prosecution. The accused persons were not put to T.I. parade. Number of lacunas were noticed with regard to the procedure adopted by the investigating agency. It also appears that the I.O. examined important witnesses at a very belated stage. It is no more res integra that delay of few hours simplicitor, in recording the statement of eye witnesses, may not by itself amount to a serious infirmity of the prosecution case, but it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately taking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus, under the facts and circumstances of the case, delay in recording of the statement of material witnesses cast a cloud of suspicion on the credibility of the entire prosecution story as has happened in the present case. It appears that the prosecution was not sure about the case and tried to patch up the lacunas in course of trial. 13. In the case at hand, it appears that the I. Os. P.Ws. 12 and 13 did not take care to examine the alleged eye witnesses P.Ws. 3 and 6 though they were readily available immediately after the occurrence, added to it, no explanation is forthcoming with regard to such delay. The same procedure was also adopted so far as P.W. 7 is concerned. It appears that he was examined on 17.2.1992 and P.W. 10 the father of the deceased was examined on 19.9.1992. The delay in examination of material witnesses also creates doubt in the mind of the Court. That apart both the eye witnesses P.Ws. 3 and 6 had not disclosed about the incident to any other person. Unexplained delay in disclosure of a murderous assault by persons claiming themselves as witnesses to the occurrence to Ors. would also cast a serious reflection on their bona fides and would certainly effect their evidence. It would not be safe and proper to accept such evidence and pass a conviction thereon (see Malaka Jogi v. State 1984 CLR 66). It also appears that the prosecution has not examined any independent witness though the occurrence took place in a busy locality. This fact was also admitted by P.Ws. 3 and 6. It appears that the I. Os. (P.Ws. 12 and 13) did not make any attempt to examine any witness who was present at the time of occurrence. P.Ws. 3 and 6 are the two constables, they have not made any attempt to know the names of other independent witnesses, who were present at the time of occurrence. This attitude also creates a doubt with regard to the correctness of the prosecution case. So far as the dyeing declaration is concerned, it appears that the prosecution tried to rely on Ext.10, the statement stated to have been made by accused before the I.O. P.W. 12. It appears that the said statement was not recorded in verbatim. That apart, Bibhuti Panda survived for quite some time thereafter. So far as the dyeing declaration is concerned, it appears that the prosecution tried to rely on Ext.10, the statement stated to have been made by accused before the I.O. P.W. 12. It appears that the said statement was not recorded in verbatim. That apart, Bibhuti Panda survived for quite some time thereafter. No attempt was made to record his dying declaration in hospital following the mandatory requirements. 14. After going through the entire evidence and in view of the lacunas in the prosecution case pointed out by the Learned 1st. Addl. Sessions Judge with which we agree, we find that the prosecution have failed to establish their case against the accused persons beyond all reasonable doubts and it is a fit case where the benefit of doubt tilts in favour of the accused persons. The order of acquittal passed sixteen years back thus needs no interference. Accordingly, the Government Appeal stands dismissed. S.C. Parija, J. 15. I agree. Final Result : Dismissed