ORDER (Order of the Court was made by C.T.SELVAM,J.,) The Appellant/Accused No.1 is one of the accused, who stood trial in case tried by learned Sessions Court, Nagapattinam in S.C.No.80 of 2009. While the second accused stands acquitted, this Appellant/Accused No.1 stands convicted for offences under Sections 376 and 302 IPC and sentenced to undergo life imprisonment and fine of Rs.20,000/- i/d 3 years S.I. for the offence under Section 302 IPC and to undergo life imprisonment and fine of Rs.20,000/- i/d 3 years S.I. for the offence under Section 376 IPC. 2.The prosecution case is as follows:- i)The 1st and 2nd accused were friends of P.W.1. They all belong to fishermen community. The appellant/accused no.1 came to Seruthur Village and resided in a portion of the house belonging to one Vaiyapuri. The appellant/accused no.1 used to take his meals at the house of P.W.1. A2 was also a resident of the said Village. ii)Four months prior to the occurrence, the appellant/accused no.1, towards sexually exploiting the elder daughter of P.W.1, by name Jagadeeswari, took her to a nearby place. They were spotted by one Arumugam and thus such attempt was thwarted. After such incident, the appellant/accused no.1 was denied food in the house of P.W.1. iii)While so, at about 12:00 noon on 23.09.2007, the appellant/accused no.1 lured the minor daughter of P.W.1, by name Madhivadhani to a nearby house which was under construction and raped her. At such time, A2 was keeping watch. iv)Towards preventing the deceased from raising a cry, the appellant/accused no.1 choked her neck and strangulated her. The deceased died of asphyxia due to smothering. v)Complaint regards occurrence was preferred by P.W.1 at about 01:00 p.m. on 24.09.2007. On receipt thereof, P.W.12, Inspector of Police, Keelaiyur Police Station, registered a case in Crime No.239 of 2007 for offences under Sections 376 and 302 IPC. The FIR is Ex.P.20. Thereafter, P.W.12 sent the FIR to Court through P.W.9, a Head Constable. He went to the scene of occurrence on the night of 24.09.2007. At about 6:00 a.m. the next day, he visited the spot and prepared observation mahazar (Ex.P2) in the presence of P.W.5 and another. He prepared rough sketch (Ex.P21) and conducted inquest in the presence of Panchayathdars between 6:45a.m and 7:45 am. The inquest report is Ex.P22. He went to the scene of occurrence on the night of 24.09.2007. At about 6:00 a.m. the next day, he visited the spot and prepared observation mahazar (Ex.P2) in the presence of P.W.5 and another. He prepared rough sketch (Ex.P21) and conducted inquest in the presence of Panchayathdars between 6:45a.m and 7:45 am. The inquest report is Ex.P22. After completion of inquest, he sent requisition (Ex.P3) for post mortem of the deceased to the Government Hospital, Nagapattinam. vi)In continuation of his investigation, he examined P.W.1, P.W.4 and two others and recorded their statements. At about 09:45am he seized a plastic jug under recovery mahazar Ex.P2 from the spot in the presence of P.W.5 and another and the same was sent to Court. After post mortem, the clothes worn by the deceased were handed over to him by P.W.9 under a special report (Ex.P18) and he sent the same to Court. The seized clothes are M.Os.1 & 2. On 25.09.2007, P.W.12 arrested the accused persons and recorded their confession statements in the presence of P.W.7 and another. At about 5:00 p.m., he recovered a blood stained lungi (M.O.3) worn by A1 under recovery mahazar Ex.P.7and thereafter on 26.09.2007, he had remanded the accused to judicial custody. He sent a requisition for medical examination of the accused (Ex.P23). On 27.09.2007, he examined Jagadeeswari and recorded her statement. On 15.10.2007, he examined P.W.6, Doctor, who conducted the post mortem and obtained her statement. He examined P.W.10 and recorded his statement. He examined the photographer and recorded his statement. He once again examined P.W.6, Doctor on 22.10.2007 and recorded her statement. On 27.12.2007, he obtained the draft charge sheet from the Government Advocate and on completion of investigation, he filed a charge sheet for offences under Section 376 and 302 IPC against A1 and Sections 376 r/w 123, 302 r/w 120B IPC. vii)The post mortem of the deceased was conducted by P.W.6 and the post mortem report reads as under: "No.163/07 Post-mortem Certificate. Regarding the body of a female aged about 10/07 years, named Madhivadhani, Requisition received at 11:05 A.M. on 24/9/07 from the Inspector of Police of Keelayur P.S with his letter No.239/07 u/s 376 302 IPC dated -----20. Body in charge of Police Constable No.173 named Sivasubramanian Identification and caste marks- The body was first seen by the undersigned at 12.00 Noon on 24/9/07. Body in charge of Police Constable No.173 named Sivasubramanian Identification and caste marks- The body was first seen by the undersigned at 12.00 Noon on 24/9/07. Its condition then was Rigor mortis passed off except Lt lower limb. Post-mortem commenced at 12.00 Noon on 24/9/07 Appearance found at the post-mortem A female child body lies on its back. Rigor mortis passed off except Lt lower limb injuries. Eyes closed. Ecchimosin of tongue inside mouth. Hands empty. Internal examination Thoran no fracture Hent 200mg chamber empty. Lungs (R) 250g (L) 200g. Hybrid bone sent for expert opinion stomach contains 150g of undigested food particle. Liver 900g spleen 100g kidney 100g wt. Uterus not well developed. Vaginal smear sent for analysis. Pelvis, skull, spinal colum No# Brain wt 1500g. The following vision sent for analysis 1)stomach vits contents 2)intestine 3)liver 4)kidney 5)preservative salt solutions 6)Hybrid bone 7)vaginal smear and swale Opinion as to cause of death (a) Reserved pending report of chemical analysis of visera (b) The deceased would appear to have died-------------- Death would have to occurred about 20-26 hours prior to PM. Station: NagapattinamName: Dr.Latha K.S.T. Dated: 24/9/2007 Rank: Asst.Surgeon Govt.H.Q.Hospital Nagapattinam" viii)Final opinion Ex.P5: The deceased would appear to have died of Asphyxia due to smothering; There are evidence for forceful intercourse. ix) In support of the case, prosecution examined 12 witnesses and marked 23 exhibits and 3 Material Objects. On behalf of the defence, no witness was examined nor were any exhibits marked. On questioning, the appellant / accused denied the charges against him. 3.On appreciation of evidence and materials placed before it, the Trial Court convicted the 1st accused and sentenced him as above stated. 4. We have heard the learned counsel for the appellant / accused no.1 and the learned Additional Public Prosecutor. 5. Learned counsel for the appellant submitted that as regards the occurrence, which allegedly had taken place between 12:00 p.m. and 3 p.m. on 23.09.2007, the FIR had been registered at about 01:00 a.m. on 24.09.2007. Such FIR had been sent to Court only at 10:00 a.m. on 24.09.2007 through P.W.9, a Head Constable. The delay in preference of FIR and forwarding of to Court created a doubt as regards the veracity of the prosecution case. All other statements recorded had been sent to Court on 26.09.2007. Such FIR had been sent to Court only at 10:00 a.m. on 24.09.2007 through P.W.9, a Head Constable. The delay in preference of FIR and forwarding of to Court created a doubt as regards the veracity of the prosecution case. All other statements recorded had been sent to Court on 26.09.2007. P.W.1, father of the deceased had deposed that he and others had made no attempt to chase the accused despite having seen them running away. The explanation that they were concerned with the deceased was unbelievable. Similarly, the explanation offered by P.W.1 that any and every issue in the Village would be taken to Panchayathars and since Panchayathars were not available on the date of occurrence, he had informed of the occurrence and state of the deceased to the Elders, who had said that they would search for the accused, was not sufficient to explain away the delay in preference of the FIR. P.W.7, the Village Administrative Officer, had spoken to the arrest of both accused on 25.09.2007 at which instance the lungi worn by the appellant/accused no.1 had been seized. The evidence of P.W.7 was to the effect that he did not know from where the appellant / accused no.1 had produced the lungi and that he was holding the same in his hand. Such lungi marked as M.O.3 did not reveal any blood stains. The accident register of the appellant/accused stood marked as Ex.P.19, he having been sent to hospital for the purpose of ascertaining his potency. The same did not reveal any injuries on his private parts. P.W.6, Doctor, who conducted post-mortem, had issued a post-mortem certificate Ex.P4 and offered final opinion Ex.P5. P.W.6 had deposed that no requisition to conduct DNA test had been made by the Investigating Officer. Learned counsel further submitted that P.W.1, father of the deceased, P.Ws.2 & 4, his employees, who spoke to having witnessed the accused / appellant and the other accused running away from the scene of occurrence, were immediate relatives. Though they inform the presence of a line of houses, no independent witness has been examined. Importantly, one Vaiyapuri in whose house the alleged occurrence had taken place, has not been examined. Further, the elder daughter by name Jagadeeswari at whose instance the deceased was said to have carried water at the request of the accused which incident facilitated the occurrence, has not been examined. Importantly, one Vaiyapuri in whose house the alleged occurrence had taken place, has not been examined. Further, the elder daughter by name Jagadeeswari at whose instance the deceased was said to have carried water at the request of the accused which incident facilitated the occurrence, has not been examined. Further, P.W.12, the Investigating Offier admitted to his not having prepared the records in the case. The person who did so has not been examined. Contending as above and informing that non examination of material witnesses was fatal to the prosecution case, learned counsel would seek setting aside of the judgment of the Trial Court. 6. Learned Additional Public Prosecutor would submit that P.Ws.1, 2 and 4, who had seen the accused persons running away from the scene, had clearly deposed to such fact. The deceased had last been seen alive by Jagadeeswari and such fact has been spoken to also by P.W.3, mother of the deceased. The inquest report marked as Ex.P.22 also informs such position. The motive for the occurrence was spoken to by P.W.4. P.W.4 had deposed that he had been informed by one Arumugam of the daughter of P.W.1 having been taken by the 1st accused to a dark place four months prior to the occurrence. As a result thereof, the appellant / accused no.1 was not allowed into the house of P.W.1. Owing to such grievance, the accused / appellant had indulged in the grievous crime. Learned Additional Public Prosecutor would submit that as the forensic examination of the vaginal smear of the deceased did not reveal the presence of semen, the non conduct of a DNA test was of no consequence. The delay in preference of FIR stood properly explained and there was no reason to doubt the prosecution case. Therefore, the appeal is to be dismissed. 7. We have considered the rival submissions. 8. Considering the facts and circumstances of the case, we would allow the present appeal for the following reasons: i)The delay in registration of the FIR is inordinate and in our view unexplained. Therefore, the appeal is to be dismissed. 7. We have considered the rival submissions. 8. Considering the facts and circumstances of the case, we would allow the present appeal for the following reasons: i)The delay in registration of the FIR is inordinate and in our view unexplained. The explanation that any and every issue relating to the village would be taken before the Village Panchayathars and since none of them were available, P.W.1 informed the village elders, who said that efforts to trace the accused could be taken and thereafter the complaint was preferred at the Police Station at 01:00 a.m. on 24.09.2007 is not seen as reasonable explanation of the delay. Further, such FIR has reached the Court only at 10:00 a.m. on 24.09.2007. Generally, Magistrates are not and indeed should not be averse to receiving express F.I.Rs in the wee hours. ii)The evidence of P.Ws.1, 2 & 4 to the effect that they witnessed the occurrence, is hardly believable. If such be the case, normal human conduct of fervent and immediate attempts towards nabbing the accused, if not by the parents / immediate relatives at least by others in the neighbourhood, is to be expected. The occurrence is alleged to be a day time occurrence and the scene is one wherein there are several houses in close proximity. iii)The elder daughter Jagadeeswari at whose instance the deceased allegedly was required to take water to the appellant / accused, stands not examined. Similarly, Arumugam, who has been spoken to by P.W.4 as having informed of the daughter of P.Ws.1 & 3 accompanying the accused to a dark spot 4 months prior to the occurrence, also stands not examined. Further, Vaiyapuri, the owner of the house under construction wherein the occurrence is said to have taken place, stands not examined. These three persons are material witnesses in the case. The examination of Jagadeeswari would have provided evidence of the factum of the deceased carrying water to the appellant / 1st accused. The examination of Arumugam would have provided evidence of the motive. The evidence of Vaiyapuri would have established that the scene of occurrence indeed was his house, which was under construction. This aspect gains significance, since no blood stained earth or sample earth had been seized from the alleged scene of occurrence. The examination of Arumugam would have provided evidence of the motive. The evidence of Vaiyapuri would have established that the scene of occurrence indeed was his house, which was under construction. This aspect gains significance, since no blood stained earth or sample earth had been seized from the alleged scene of occurrence. iv)Though animosity between P.W.1 and the appellant/1st accused is suggested, reading of the evidence of P.W.4 reveals that after sometime they had made good their relationship and were on speaking terms. v)The evidence of P.W.7, Village Administrative Officer, that the appellant / 1st accused was holding a lungi in his hand at the time of his arrest on 25.09.2007, two days after the occurrence, is doubtful. Despite the lungi bearing semen stains, no DNA test has been conducted to establish the link between the same and the accused / appellant. vi)P.W.12, Investigating Officer has stated that complaint, observation mahazar, confession statement and topo sketch were not in his hand and that one Rajamuthu had prepared the same. That such person has not been examined is one further infirmity. 9. In the circumstances, the failure of prosecution to challenge the order of acquittal of the second accused, who stands on similar footing as the present appellant / A1 is quite understandable.