JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) 1. This appeal is directed against the judgment of conviction and order of sentence dated 21.08.1990 passed by the learned 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.126/33 of 1985/90 by which the appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 of the Indian Penal Code. 2. Baban Mahto (P.W.11) gave his fardbeyan (Ext.1) to the S.I. Sri B.N.Pandey (not examined) on 23.03.1984 at 9.00 A.M. stating therein that on 22.03.1984 at about 7.00 P.M. his brother Nathuni Mahto (deceased) went to Badhar for irrigating his field but did not return to his house till the next morning. During search, Nathuni Mahto (P.W.12) told the informant (P.W.11) that it was getting dark. There was altercation between Nathuni Mahto (deceased) with his co-villagers Lalan Mahto and Dadan Mahto (both appellants) with regard to irrigating the field. The informant suspected that both of them have killed his brother. He went to the field where his brother had gone to irrigate the field and saw that Barseem (fodder) grown by the deceased was trampled. The blood had fallen. The Gamcha (towel) of Dadan Mahto and Lungi of Lalan Mahto were fallen. Thereafter, P.W.11 (informant) came to conclusion that the aforesaid persons have killed. After killing, they had hidden the dead body. P.W.11 with P.W.12 searched and found the dead body of the deceased hidden in the bush in the western bank of river Gawalwa and the deceased had injury in his neck and they could not properly see the other injuries. Thereafter, P.W.11 went to the police station. He has also stated that his co-villager Hari Narain Mahto (P.W.9), Lukhi Mahto (not examined) and other several persons had heard the cry of the deceased in the evening. The fardbeyan was witnessed by Nathuni Mahto (P.W.12). On the basis of fardbeyan, Shivsagar P.S. Case No.33/1984 was instituted for the offence punishable under Sections 302 and 201 of the Indian Penal Code against the appellants Dadan Mahto and Lalan Mahto on 23.03.1984. After investigation, charge-sheet was submitted against Dadan Mahto, Lalan Mahto and one non-FIR accused Ramadhin Mahto (all the appellants). Cognizance was taken against them. The case was committed to the court of sessions. After investigation, charge-sheet was submitted against Dadan Mahto, Lalan Mahto and one non-FIR accused Ramadhin Mahto (all the appellants). Cognizance was taken against them. The case was committed to the court of sessions. The charge was framed against the appellants for the offence punishable under Sections 302/34 of the I.P.C. to which they denied and claimed to be tried. After the trial, all the accused persons have been convicted and sentenced as aforesaid. 3. Now, this Court is required to reappraise the evidence as to whether the prosecution has been able to substantiate its charge beyond shadow of reasonable doubt. 4. In order to substantiate its case, the prosecution has examined 13 witnesses. They are Umeshwar Nath Verma (P.W.1), Jagat Narain Singh (P.W.2), Jamuni Kumari (P.W.3), Rajesh Kumar (P.W.4), Shankar Dayal Singh (P.W.5), Rajdeo Singh (P.W.6), Madan Kumar Singh (P.W.7), Satya Narain Mahto (P.W.8), Hari Narain Mahto (P.W.9), Akalo Devi (P.W.10), Baban Mahto (P.W.11), Nathuni Mahto (P.W.12) and Birbal Singh (P.W.13). 5. P.Ws.1, 2, 4 and 13 are formal witnesses who have proved the writing of S.I. B.N. Pandey (Ext.1), the endorsement by B.N. Pandey (Ext.2), the post-mortem report (Ext.3) and the formal FIR (Ext.6) respectively. 6. P.W.11 is the informant of this case, as such, his evidence is considered first of all. P.W.11 has stated that his brother Nathuni Mahto (deceased) was killed in the night. The deceased started from his house with Lalan Mahto, Dadan Mahto and Ramadhin Mahto (all the appellants) when the sun was setting. They went to irrigate the field which was in the north-east corner of the village. The fodder was grown in the field of Mahendra Singh. He has further stated that he came to know all this fact in the morning from P.W.10, the wife of the deceased. He went to the field in search of the deceased with P.W.12 and found that the field was trampled. There was Lathi, Farsa and Shoes. There was blue coloured Lungi of the accused/appellants Lalan and Gamcha of Dadan and sleeper of one leg lying in the field. There was also bloodstain on the fodder. After search, the dead body of Nathuni was found which bore injuries by sharp cutting weapon in neck and piercing injuries. It appears that he has made different statement. There was blue coloured Lungi of the accused/appellants Lalan and Gamcha of Dadan and sleeper of one leg lying in the field. There was also bloodstain on the fodder. After search, the dead body of Nathuni was found which bore injuries by sharp cutting weapon in neck and piercing injuries. It appears that he has made different statement. In the FIR, he has stated that at about 7.00 P.M. his brother had gone to the field from his house, but he has made different statement in his deposition and added that the appellants and the deceased started for the field at the time of sun set. The Investigating Officer has not been examined in this case who could have clarified the matter. 7. P.W.3 is the daughter of the deceased. She has also stated like P.W.11 that on the date of occurrence all the appellants came to the house of the deceased when the sun was setting. There was no darkness. At that time, P.W.3, her mother (P.W.10), elder sister Gangia (not examined) and her father (deceased) were present. She has further stated that the appellants asked her father (deceased) to go to irrigate the field. Thereafter, her father (deceased) took his Lathi and Kudal and went with them. Lalan and Dadan were possessing Lathi and Ramadhin was possessing Barchhi. Lalan was wearing blue colour Lungi and Dadan was wearing Dhoti and Ganji and had towel. The appellants took her father. Her father did not return in the night nor in the morning. Thereafter, her uncle Baban Mahto (P.W.11) went to search her father and returned and told that her father (deceased) was killed and dead body was thrown in the Gawalwa river. It appears that P.W.3 has also made a different version then the First Information Report. 8. P.W.5 has witnessed the inquest report (Ext.4). 9. P.W.6 is the seizure list witness and has stated that the police officer had seized blue Lungi, plastic shoe, check Tauliya, Lathi, Kudal and a sleeper of one leg from the field of Mahendra Singh which were witnessed by him (Ext.4/1). He has proved the signature of Sri Bhagwan which has been marked as Ext.4/2 and the seizure list (Ext.5). He has also stated that bloodstained soil was seized from the field of Kuldip Tiwari near the bank of river which bears his signature (Ext.4/3) and of Sri Bhagwan (Ext.4/4). 10. He has proved the signature of Sri Bhagwan which has been marked as Ext.4/2 and the seizure list (Ext.5). He has also stated that bloodstained soil was seized from the field of Kuldip Tiwari near the bank of river which bears his signature (Ext.4/3) and of Sri Bhagwan (Ext.4/4). 10. P.W.7 has stated that prior to seeing the dead body of Nathuni Mahto, he had seen four persons, the appellants and Ramadhin Mahto who were going to irrigate their field. It was not dark. The sun was setting. At about 8.00 P.M. he heard cry of loosing life which was coming from Beheliya Tal. He did not go there. On the next day at 12’O Clock, he saw the dead body of Nathuni near the river which was bearing two injuries. He also saw that the fodder grown by Nathuni in the field of Mahendra Singh had been trampled. He had also stated that he saw Lungi, sleeper, shoes and Tauliya. He has stated that Baban (P.W.11) was telling that the Chatti, Lungi, Tauliya belonged to Lalan Mahto and Dadan Mahto. It has been seen earlier that Baban Mahto (P.W.11) is the informant of this case and he has not made such statement in the fardbeyan which has been stated by this witness (P.W.7). P.W.7 has stated in paragraph 7 of the cross-examination that Nathuni Mahto had no enmity with him. After hearing his cry, he did not inform any one nor this fact has been stated before the Investigating Officer. The evidence of P.W.7 also does not inspire confidence and it is also not fit to be accepted. 11. P.W.8 is the son of the deceased. He has stated that it was evening but there was a little day light. He was at the Dalan of Jagdish Mistri and saw four persons were going. They were the appellants and his father. Dadan Mahto and Lalan Mahto were armed with Lathi and Ramadhin was armed with Barchhi. In that night, he slept on the Dalan of Jagdish Mistri. On the next day, he went to his house and his mother told him that his father did not return from his field and she told him that the appellants had taken him (deceased) to the field. He has further stated that his uncle Baban Mahto (P.W.11) had gone to search him. On the next day, he went to his house and his mother told him that his father did not return from his field and she told him that the appellants had taken him (deceased) to the field. He has further stated that his uncle Baban Mahto (P.W.11) had gone to search him. He has further stated that he had also gone to the field and saw the aforesaid articles there. In his cross-examination, he has stated that there was no one to see his presence at the Dalan of Jagdish where he was present on the fateful evening. In his cross-examination, he has stated that he has made the statement before the police officer. In paragraph 6, he has stated that he does not know whether his father (deceased) was an accused in any case and he had gone to jail. He has stated that the accused/appellants had no enmity with him (deceased). 12. P.W.9 has stated that he was returning to his house after easing. At that time, the sun was setting. He saw that four persons were going out of them he identified Lalan Mahto, Dadan Mahto and Nathuni. On query, Nathunti (deceased) told him that he was going to cut (may be read as to irrigate) the Barsim grass (fodder). On the next day, he came to know that the dead body of Nathuni was lying near the Gawalwa river. He has also supported the prosecution case as P.W.7. In his cross-examination, he has admitted that his co-villager Raghubans Singh was killed. In that case several persons including the deceased Nathuni, son of Jagdeo and P.W.9 were accused and they were convicted. After serving the sentence, he and others came out from the jail. 13. P.W.10 is the wife of the deceased. She has stated that it was night. At that time, she was in her house. The appellants came there and asked her husband (deceased) to irrigate the field. Lalan Mahto and Dadan Mahto were armed with Lathi and Ramdhin Mahto was armed with Barchhi. Her husband (deceased) had gone taking Kudal to the field. Lalan was wearing blue Lungi and Ganji. Dadan Mahto was wearing Dhoti. Her husband did not return in the night. She went to search her husband. Her Devear Baban Mahto (P.W.11) met her as she stated everything to him. Baban Mahto (P.W.11) went to search her husband. Her husband (deceased) had gone taking Kudal to the field. Lalan was wearing blue Lungi and Ganji. Dadan Mahto was wearing Dhoti. Her husband did not return in the night. She went to search her husband. Her Devear Baban Mahto (P.W.11) met her as she stated everything to him. Baban Mahto (P.W.11) went to search her husband. Later on, she went to Gawaliwa River and saw the dead body of her husband. Thereafter, she went to the field where her husband had irrigated the fodder. She saw that the fodder was trampling and her husband’s spade and shoes were lying. The Lathi and Lungi of Lalan and Chappal and Tauliya of Dadan were also there. It appears from her evidence that it was night and the appellants came to her house and took her husband and all these facts were told by her to her Devar (informant) but the informant had not stated in the fardbeyan that the appellants had come to the house of the deceased. 14. P.W.12 has also deposed as P.W.7. He has also stated that he had accompanied the informant to the police station where the informant P.W.11 had given his fardbeyan to the police officer, which was witnessed by him and he has identified his signature (Ext. 4/1). In his cross-examination, he has stated that he did not state before the police officer that he had gone with Baban (P.W.11) in the search of Nathuni (deceased). 15. In this case, the Investigating Officer and the Doctor have not been examined although the post-mortem examination report has been brought on the record by a formal witness P.W.4 who has proved the writing and signature of the doctor L.P. Jaiswal, who had held post-mortem and submitted the post-mortem report died. But in his cross-examination, he is not certain about the death of the doctor. There is a vital contradiction between the FIR given by the informant (P.W.11) and his statement in the court. P.W.3 has stated that her mother, sister and father were present when the appellants had come to her house to take her father (deceased) to irrigate the field. There is vital contradiction between the statement of P.W.3, her mother P.W.10 and uncle PW-11. P.W.10 is the wife of the deceased. P.W.3 has stated that her mother, sister and father were present when the appellants had come to her house to take her father (deceased) to irrigate the field. There is vital contradiction between the statement of P.W.3, her mother P.W.10 and uncle PW-11. P.W.10 is the wife of the deceased. She has stated that she has told the name of the appellants who had come to her house to take her husband to the informant (P.W.11) who is brother of the deceased but the name of the appellant Ramadhin Mahto has not been mentioned in the FIR. The prosecution evidence is full of contradictions and does not inspire confidence. The contradiction between the statement of the witnesses before the police and the court would have been clarified/examined, if the Investigating Officer had been examined in this case. The examination of the Investigating Officer appears to be vital and essential in this case. The non-examination of the Investigating Officer has caused prejudice to the appellants. There is no eye witness to the occurrence. 16. It has been submitted on behalf of the state that non-examination of the Investigating Officer does not affect the merit of the case. 17. It is well settled principle of law that non-examination of the Investigating Officer does not affect the merit of the prosecution case where the prosecution evidence is constant and inspire confidence but in case where the prosecution evidence is full of contradictions, the examination of Investigating Officer is essential to verify the statement of the witnesses before the Investigating Officer and in their deposition. 18. In this case, the examination of the Investigating Officer was essential. The non-examination of the Investigating Officer has caused prejudiced to the appellant. 19. It also appears from the record that the fardbeyan of the informant (P.W.11) has been recorded on 23.03.1984 at 9.00 A.M. and Shivsagar P.S. Case No.33/84 was instituted on 23.03.1984 at 12.45 P.M. but the FIR has been received in the court of learned Chief Judicial Magistrate on 27.03.1984. The Investigating Officer has not been examined. There is inordinate delay in the receipt of the FIR in the court and there is no explanation for the inordinate delay in the receipt of the FIR. 20. The Investigating Officer has not been examined. There is inordinate delay in the receipt of the FIR in the court and there is no explanation for the inordinate delay in the receipt of the FIR. 20. Section 157 of the Code of Criminal Procedure is one of sections, which has been incorporated in Chapter 12, which starts from Section 154 of the Code of Criminal Procedure. Section 154 of the Code of Criminal Procedure relates to registration of the case of cognizable offence. Section 157 of the Code of Criminal Procedure mandates the police to transmit the report of cognizable offence “forthwith” to the concerned Magistrate empowered to take cognizance of such offence. This is a mandatory section and it has to be followed. The mention of word “forthwith” is designed to keep the Magistrate to investigate a cognizable offence and also that if some direction is required, then such direction can be issued. Mere delay in despatching of the F.I.R. is no ground to throw away the possibility of the prosecution case, but it is a circumstance, which has to be perceived. If the delay is much and there is no explanation, then such FIR can be said to be a deliberated and consolidated FIR and as such, FIR was not giving the correct version of the occurrence. A reference may be made to a decision in case of Arun Marik Vs. State of Bihar reported in 1994 Supp (2) Supreme Court Cases 372. 21. Admittedly, there is no eye witness to the occurrence which has also been held by the learned trial court. The whole prosecution case is based on circumstantial evidence. In the present case, there is no such circumstantial evidence on the basis of which the court may arrive at the definite conclusion that it were only the appellants who have perpetrated the alleged offence. 22. Considering the facts and circumstances stated above, we find and hold that the prosecution has not been able to substantiate its charge against the appellants beyond reasonable doubt. The appellants are entitled to get the benefit of doubt. They are acquitted from the charge by giving benefit of doubt. The impugned judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are on bail. They are discharged from the liability of their bail bonds. Appeal allowed.