JUDGMENT Per: SHYAM KISHORE SHARMA, J. Criminal Appeal (DB) No. 42 of 2005 on behalf of Shiv Prasad Singh, Umesh Singh, Kapil Singh and Akhilesh Singh @ Akhileshwar Singh and Criminal Appeal (DB) No. 71 of 2005 on behalf of Mangroo Singh have been taken up together because both the appeals have arisen out of one judgment and order of conviction dated 03.12.2004 and order of sentence dated 07.12.2004 passed by Shri Pradeep Nath Tiwari, the learned P.O. Additional Court (F.T.C.) No. 1, Rohtas at Sasaram in connection with Sessions Trial No. 18/104 of 1985/2001, whereby all the accused namely, Mangroo Singh, Kapil Singh, Akhileshwar Singh, Shiv Prasad Singh, Umesh Singh have been sentenced to undergo RI for life under Section 302/ 149 of the IPC and also the accused Akhileshwar Singh sentenced to undergo imprisonment for life under Section 307 of the IPC and further the accused Akhileshwar Singh and Mangroo Singh were sentenced to undergo imprisonment for three years under Section 27 of the Arms Act. The sentences awarded against the accused Akhileshwar Singh and Mangroo Singh were directed to run concurrently. 2. The fardbeyan recorded by officer-in-charge of Dinara police station on 06.12.1981 at 09.30 p.m. of P.W.4 Bihari Singh alleged that on the same day in the afternoon the informant and his brother co-accused Shiv Prasad Singh went to see their field and asked for sharing the property namely buffalo but it was declined by Shiv Prasad Singh who claimed that the buffalo was the gift to him by his in-laws. This caused altercation whereupon accused Shiv Prasad Singh threatened him to dire consequences. In the same evening P.W. 4 and his brother Ramadhar Singh P.W. 2 were in Khalihan then the Mangroo Singh with his licensed gun, Kapil Singh with Bhala, Akhileshwar Singh with country-made gun, Shiv Prasad Singh with Bhala and Umesh Singh with Garasa came and the informant escaped and raised hulla upon which Kamta Singh (the deceased), Jag Dayal Singh P.W. 1, Bishwanath Singh P.W. 3, Ramadhar Singh P.W. 2 and others came. Mangroo Singh fired from his rifle which caused injury in the stomach of Kamta Singh (the deceased) who fell down. Second firing by Akhileshwar Singh caused injury in the right arm of Jagdayal Singh P.W. 1. After committing the occurrence, the accused persons escaped to the northern side. Mangroo Singh fired from his rifle which caused injury in the stomach of Kamta Singh (the deceased) who fell down. Second firing by Akhileshwar Singh caused injury in the right arm of Jagdayal Singh P.W. 1. After committing the occurrence, the accused persons escaped to the northern side. Kamta Singh died in the way while he was on way for Dinara Hospital for treatment. 3. The fardbeyan resulted into formal FIR of Dinara P.S. Case No. 220 of 1981 under Sections 148, 149, 307, 302 of the IPC and Section 27 of the Arms Act. The important aspect of the fardbeyan is that it was recorded at 9.30 p.m. on 06.12.1981 but the record shows that it has been received in the court on 22.12.1981 i.e. after more than two weeks of the occurrence. After cognizance being taken, the case was committed to the court of Sessions where charge under Section 302/149 of the IPC was explained to all the accused. Charge under Section 27 of the Arms Act and Section 307 of the IPC was explained to Akhileshwar Singh, Charge under Section 302 of the IPC and Section 27 of the Arms Act was explained to Mangroo Singh. They pleaded their innocence then the trial proceeded. 4. The defence of the accused was of false implication on account of enmity. Their further defence was that Mangroo Singh was of such an advanced age that it was not possible for him to commit such an offence. It has been submitted that Mangroo Singh has crossed in his late eighties and he was not strong enough to inflict such injuries. A Barat party had come to the village and due to negligent firing of one member of Barat party the injuries were caused which led to death and injury. 5. The trial court after considering the prosecution and defence version opined that the charges were proved so order of conviction was passed. 6. This Court is required to reappraise the evidence and to see as to whether the prosecution was able to prove the charge against the appellant beyond shadow of all reasonable doubts or not. 7. 5. The trial court after considering the prosecution and defence version opined that the charges were proved so order of conviction was passed. 6. This Court is required to reappraise the evidence and to see as to whether the prosecution was able to prove the charge against the appellant beyond shadow of all reasonable doubts or not. 7. The prosecution has examined four witnesses they are P.W. 1 Jag Dayal Singh the injured, P.W. 2 Ramadhar Singh the FIR named witness who turned hostile, P.W. 3 Bishwanath Singh who has seen escaping and knew about the occurrence later on meaning thereby that he was a hearsay witness and P.W. 4 Bihari Singh, the informant. Five court witnesses have also examined they are C.W. 1 Shyam Lal a formal witness, C.W. 2 Sidhnath Singh working in the health department also a formal witness, C.W. 3 Ramdev Singh an Advocate Clerk also a formal witness, C.W. 4 Dr. Chandresh Vikram Singh, who has conducted post-mortem and C.W. 5 Syed Zakidullah Akhtar the investigating officer. It is pertinent to mention here that the I.O. and the doctor were not examined and they were examined after order of this Court. 8. C.W. 4 while being posted as Medical Officer of Sadar Hospital, Sasaram on 07.12.1981 at 12.15 p.m. conducted the post-mortem of Kamta Singh and found the following injuries : (I). Multiple black colour and with deepen wound over and area of 2”x2” on the left side of the abdomen over left lumber region. (II). Lacerated wound 1½”x1” with protrusion of small intestine over the left lumber region of abdomen with black margin. On opening of the abdominal cavity undigested food was noted. The death was between 24 -36 hours meaning thereby prior to 12.50 noon on 06.12.1981 and later between 5/6.12.1981 to 06.12.1981 at 12.15 p.m. The prosecution case is that occurrence is at 06.12.1981 at 05.30 p.m. and Kamta Singh has died immediately so his death was of 19 hours prior to his post-mortem and in between 24-36 hours. There is variation of some hours between the time in the fardbeyan and in the doctor’s opinion. 9. P.W. 4 is the informant. While being examined as a witness he has stated that in the evening he was in his Khalihan with his brother Ramadhar Singh P.W. 2, which was situated towards east and at some distance from his house. There is variation of some hours between the time in the fardbeyan and in the doctor’s opinion. 9. P.W. 4 is the informant. While being examined as a witness he has stated that in the evening he was in his Khalihan with his brother Ramadhar Singh P.W. 2, which was situated towards east and at some distance from his house. While the informant was sitting with his brother P.W. 2 in his Khalihan, then Mangru Singh, Kapil Singh, Akhileshwar Singh, Shiv Prasad Singh and Umesh Singh came in the Khalihan. Mangroo Singh was having D.B.B.L. gun, Akhileshwar Singh was having country made gun, Kapil Singh and Shiv Prasad Singh were having Bhala, Umesh Singh was having Garasa. The informant escaped due to panicky and on hulla Kamta Singh (the deceased) , Jag Dayal Singh P.W. 1, Bishwanath Singh P.W. 3, Nathun Singh (not examined) and Gudari Singh came. Mangroo Singh fired from his D.B.B.L. gun which caused injury in the stomach upon which his intestine came out and fell down. Akhileshwar Singh fired which caused injury to P.W. 1 on his right arm. After committing various aggressive acts the accused persons took to their heels. After the accused persons escaped the villagers came and they identified the accused while escaping. Kamta Singh was carried to hospital but after going 15 steps he succumbed and so he was brought back to the house. Injured Jag Dayal Singh was carried to Dinara Hospital. Accused Shiv Prasad Singh is own brother of P.W. 4. Prior to the occurrence, P.W. 4 had altercation with Shiv Prasad Singh for sharing the she buffalo. On the date of occurrence, at noon the informant had altercation with accused Shiv Prasad Singh in connection with share in the she buffalo. Shiv Prasad Singh was claiming that it was a gift by his in-laws and so he has declined to give any share in the she- buffalo and not only that he has threatened to dire consequences. The informant’s fardbeyan contains signature (Ext. 1) of P.W. 4 and formal FIR (Ext. 6 and 6/1) were formally recorded on the basis of fardbeyan. The informant has detailed the manner of assault and he has stated that after the occurrence he came towards his village and told P.W. 3 and Nathun Singh about the occurrence. The informant’s fardbeyan contains signature (Ext. 1) of P.W. 4 and formal FIR (Ext. 6 and 6/1) were formally recorded on the basis of fardbeyan. The informant has detailed the manner of assault and he has stated that after the occurrence he came towards his village and told P.W. 3 and Nathun Singh about the occurrence. From the version of the informant, it appears that P.W. 3 knew about the occurrence later on, meaning thereby that he was not a witness of the occurrence. He has declined that any Barat had come in the village on the date of occurrence. P.W. 3 heard the gun shot firing and when he went to Khalihan he found Kamta Singh dead and he saw others. The deposition of this witness is specific and it appears that he is not a witness of the occurrence rather is a hearsay witness. P.W. 2 who was present according to the informant throughout has not supported at all and he has been declared hostile and he has declined that he had made any statement before police. Therefore, evidence of P.W. 2 does not require discussion. The only remaining witness is only P.W. 1 the injured witness who has detailed about the occurrence. P.W. 4 in fardbeyan as well as in his evidence has stated that Shiv Prasad Singh was having Bhala. P.W. 1 is an injured witness and he has stated that Shiv Prasad Singh was having Garasa. P.W. 4, the informant has stated that P.W. 2 was having Garasa but the injured witness P.W. 1 has stated that Umesh Singh was having Lathi. About the appellant Kapil Singh P.W. 4 in his fardbeyan as well as in his evidence has stated that he was having Bhala but P.W. 1 has stated that Kapil Singh was having Garasa. Only two witnesses have been produced by the prosecution though occurrence was of an open field and there was all possibility that in village other persons would also have been there. The two witnesses have contradicted themselves on all vital points. P.W. 4 in para-17 of his evidence has stated that there was no Barat in the village whereas P.W. 1 in para-1 has stated that he was going to see Barat when the occurrence took place. The two witnesses have contradicted themselves on all vital points. P.W. 4 in para-17 of his evidence has stated that there was no Barat in the village whereas P.W. 1 in para-1 has stated that he was going to see Barat when the occurrence took place. In para-6 P.W. 1 has explained that Barat party has come in the house of Hari Singh and Barat was reaching at the door when the firing took place and the occurrence has taken place. Therefore, the defence of the accused that injury was on account of firing has been declined by P.W. 4 but P.W. 1 the only supporting witness has clearly supported the defence version that there was Barat on the date of occurrence and the Barat was just reaching the door when the occurrence has taken place, therefore the defence version that there was Barat is credible and reliable and it appears that the informant has tried to conceal this vital aspect. 10. The entire evidence has to be considered in totality. The death is not within 24-36 hours rather it is much below than the minimum hours fixed by the doctor at the time of post-mortem, was that the death must have occurred at least 24 hours earlier but the time of death has been specific meaning thereby that there is contrast between the witnesses. 11. Only two witnesses are on the side of the prosecution. P.W. 4 thoroughly declined that there was any Barat but P.W. 1 has stated that the Barat was there and it was just in the process of coming to the door when the occurrence took place. The manner of occurrence also gets doubted. 12. The investigating officer has not found blood at the place of occurrence though he has gone immediately after the occurrence and there is no evidence of intervention or it has been washed out or the evidence has been destroyed. Non-finding of the blood at the place of occurrence is a circumstance which goes against the prosecution. 13. The doctor has found multiple black injuries. Such injuries are possible when firing is from close range. The informant P.W. 4 in para-9 stated that he has seen the accused first time when firing at a distance of about 22 steps and in that very position the firing was made. 13. The doctor has found multiple black injuries. Such injuries are possible when firing is from close range. The informant P.W. 4 in para-9 stated that he has seen the accused first time when firing at a distance of about 22 steps and in that very position the firing was made. No such injuries were found if a person received injury on the firing made from 22 steps. Therefore, this also goes against the prosecution and it can be said that the prosecution has not come clean. C.W. 5 in para-7 of his evidence has also stated that the distance of place of firing and place of occurrence has been told by P.W. 4 of 22 yards. But no mark of blood was there rather blood was elsewhere. Therefore, this was also goes against the prosecution. 14. Another fact is that formal FIR has not mentioned date and time in its format. The FIR has been claimed to be drawn on 06.12.1981 and the record of the Magisterial court is here and the FIR has been received in the court on 22.12.1981 i.e. after 16 days. 15. Mandate of law is clear that the FIR has to be received without delay in the court and if there is delay then the onus is towards the prosecution to explain that what caused it to transmit the FIR to the court delaying in lodging the FIR is not vital but the delay has to be explained. The purpose of sending the report by officer-in-charge of a police station is that the Magistrate must kept alive of the stage of the investigation of cognizable offence as he had to conclude the investigation and issue necessary instruction and direction under Section 157 of the Code of Criminal Procedure which is mandatory and the sending of the occurrence report is a step which is essential. The failure to sending such a report is a serious negligence of duty and is likely to result in failure of justice. Failure does not vitiate the trial if not prejudiced. In the present case, the definite prejudice was there as the two witnesses have contradicted themselves with regard to manner of occurrence and time of occurrence. One witness states that there was no Barat and second witness states that the occurrence was on the eve of Barat. Failure does not vitiate the trial if not prejudiced. In the present case, the definite prejudice was there as the two witnesses have contradicted themselves with regard to manner of occurrence and time of occurrence. One witness states that there was no Barat and second witness states that the occurrence was on the eve of Barat. These were vital contradictions and it appears that the FIR was deliberately withheld. 16. After considering the facts and circumstances, it is apparent that two witnesses have contradicted themselves with regard to time of occurrence, manner of occurrence and nature of defence which the accused persons were carrying. These are vital lacunas in the prosecution version. If the prosecution has a particular case then it has to prove it beyond shadow of all reasonable doubts. If a doubt is created then the benefit of doubt goes to the accused and not to the prosecution. 17. In the result, it is held that the prosecution has not been able to prove the charge beyond shadow of all reasonable doubts. The judgment of conviction and order of sentence is set aside. The appeals are allowed. The appellants of both the appeals are acquitted from the charges. 18. The appellants Shiv Prasad Singh, Umesh Singh, Kapil Singh and Akhilesh Singh @ Akhileshwar Singh of (in Cr. App (DB) No. 42 of 2005), who are on bail, are discharged from the liabilities of their respective bail bonds. 19. Appellant Mangroo Singh of Cr. App (DB) No. 71 of 2005 is reported to be in custody, he is directed to be released forthwith, if not wanted in any other case. Appeals allowed.