ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. Above named sole appellant has preferred the instant appeal against the judgment of conviction and order of sentence dated 26th February, 1991 whereby he has been found guilty for the offence punishable under sections 302 and 201 of the Indian Penal Code and he has been sentenced to undergo imprisonment for life for the offence under section 302 IPC and further one year rigorous imprisonment for the offence under section 201 IPC. It was ordered that both the sentences shall run concurrently. 2. Kishun Rishi (PW 5) has set the law in motion by lodging the case before the Police. He stated on 8.7.1989 at 10.AM that on 6.7.1989 his brother Nago Rishi (deceased) along with his wife (PW 6) had been to the field of Paltu Das (PW 1) for doing work as labourer. Baleshwar Mahto, the appellant, came at 2.30 PM and requested the informant’s bother (deceased) for taking toddy. The informant’s brother Nago Rishi went with Baleshwar Mahto in Mathuriyabari but did not return till night. The informant knew that Baleshwar Mahto had already returned. The informant’s mother (not examined) and bhabhi (PW 6) went to Baleshwar Mahto to inquire whereabout of Nago Rishi but he told that Nago got himself separated at 5.00 PM. The informant, thereafter, along with Madan Rishi (not examined), Sada Rishi (not examined) and Haleshwar Rishi (not examined) went to trace Nago Rishi, then one Santhal of Jayanti Gram told that Nago Rishi was with Baleshwar Mahto till 8.00 PM and both were taking toddy. In the next morning search was made along with Jamun Rishi (not examined), Haleshwar Rishi and Shiv Charan Rishi. At about 4.00 PM dead body of Nago Rishi was found in the north of bridge on Badhututta Dhar. The dead body was taken out. The neck was twisted and skin peeled off. It was suspected that Nago Rishi had been done away and after killing the dead body was thrown in the river. The fard-beyan resulted into formal FIR (Ext.1) vide Korha P.S. Case No. 0111 dated 8.7.1989 under sections 302, 201 of the Indian Penal Code and investigation commenced. The inquest report (Ext. 2) was prepared, post mortem report of the dead body (Ext. 3) was obtained from the hospital, statement of witnesses was taken and the place of occurrence was investigated into. The inquest report (Ext. 2) was prepared, post mortem report of the dead body (Ext. 3) was obtained from the hospital, statement of witnesses was taken and the place of occurrence was investigated into. The Investigating Officer found the case to be true, so chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions where charge under sections 302/201 Indian Penal Code was explained to the accused to which he pleaded his innocence and trial proceeded. 3. Before the trial court the prosecution has examined PW 1 Paltu Das, PW 2 Patwari Hansda, PW 3 Puran Besra, PW 4 Tala Hansda, PW 5 Kishan Rishi, PW 6 Jayanti Devi, PW 7 Shankar Prasad Poddar, PW 8 Sheo Janam Singh, the Investigating officer and PW 9 Dr. Amarnath Kejariwal, who has held post mortem. 4. PWs 2 and 4 were declared hostile by the prosecution and it was allowed to cross-examine. PW 3, an attesting witness, was tendered by the prosecution. PW 7 is a formal witness. Material witnesses were PW 1 Paltu Das, PW 5 the informant and PW 6 Jayanti Devi, the wife of the deceased. 5. The trial court after considering the evidences on record and also after hearing the submissions, found that the prosecution has succeeded in proving the charge against the accused, namely, the appellant beyond the shadow of all reasonable doubts and so the order of conviction and sentence was recorded. The appellant has impugned the judgment and assailed it on the ground that the conviction was recorded without any linking evidence and only on the basis of sketchy evidence, he has been convicted. 6. Now, this Court has to re-appreciate the evidence and to come to the conclusion as to whether the prosecution has succeeded in proving the case against the appellant beyond the shadow of all reasonable doubt or not. 7. Before discussing the oral evidence, it would be appropriate to go through the evidence of the doctor, who held autopsy upon the dead body. PW 9, while being posted on 8.9.1989 as Civil Assistant Surgeon, Sadar Hospital, Purnea at 4.30 PM, has held the autopsy of Nago Rishi and has found that it was a case of Asphyxia on account of throttling. The doctor’s evidence has proved that the death was on account of asphyxia due to pressure on neck and chest. PW 9, while being posted on 8.9.1989 as Civil Assistant Surgeon, Sadar Hospital, Purnea at 4.30 PM, has held the autopsy of Nago Rishi and has found that it was a case of Asphyxia on account of throttling. The doctor’s evidence has proved that the death was on account of asphyxia due to pressure on neck and chest. It was not the case of natural death rather it is a case of culpable homicide amounting to murder. Now, this court has to see as to whether the prosecution has succeeded in proving that it was the conduct of the appellant alone who was responsible for causing culpable death of Nago Rishi. 8. The informant’s evidence is being discussed firstly. The deceased was the elder brother of PW 5. He has stated that his brother had gone to the field of Paltu Das (PW 1) for working at his field. At that time his wife (PW 6) has accompanied him. The informant’s brother did not return in the evening. PW 6 returned and told that while Nago was working upon the field of Paltu, then he was persuaded by the accused to go and take toddy. Both proceeded and went to take toddy at the shop of Patwari Hansda. Baleshwar has returned and when the informant went to ask him, then he told that he has let off Nago in the evening at 5.00 PM and thereafter, the informant and three more persons, namely, Haleshwar Rishi, Jamun Rishi and Shiv Charan Rishi (not examined) went to locate his brother. All night efforts to trace him remained futile. On the next day, Athmit Chami and one Santhal told that they have seen Nago and Baleshwar taking toddy and the dead body was subsequently recovered from the bed of the river. The head was twisted and skin of chest was peeled out. The blood was out of nostrils. The informant went to Police Station along with Puran Besra (PW 3) where his fard-beyan was recorded, upon which Puran put his attesting marks. 9. PW 5 has been supported by PW 6 and PW 1. All have stated that Nago was persuaded by Baleshwar to go for taking toddy. Nago along with Baleshwar was found in the evening, Nago remained traceless and on the day following in the evening his dead body was found lying in the bed of the river. 9. PW 5 has been supported by PW 6 and PW 1. All have stated that Nago was persuaded by Baleshwar to go for taking toddy. Nago along with Baleshwar was found in the evening, Nago remained traceless and on the day following in the evening his dead body was found lying in the bed of the river. It had marks of violence. 10. The evidence of the witnesses is that for taking toddy, they have gone to the shop of Patwari Hansda (PW 2). Patwari Hansda while deposing has not supported that Nago and Baleshwar have come to his house for taking toddy. He stated that in the evening brother of Nago came and inquired about Nago but he (PW 2) has expressed his ignorance about Nago and Baleshwar. Subsequently, PW 2 Patwari Hansda was declared hostile. 11. PW 8 the Investigating Officer has stated that he came and has inspected the place of occurrence and found the case to be true, so chargesheet was submitted. 12. Learned Amicus Curiae appearing on behalf of the appellant has submitted that this is a case there is no evidence that the appellant was seen along with the deceased soon before the recovery of the dead body. It has also been submitted that though the prosecution has tried to fill up the gap of time by introducing the version that Baleshwar was seen along with Nago at the shop of PW 2 but PW 2 has negated the version when he has stated that neither of the two have come to his shop for taking toddy. So, it has been submitted that Nago and Baleshwar were not seen by any of the independent witness after both set out for taking toddy and the dead body was recovered after more than 24 hours. It has been submitted that in a case in which the prosecution relies upon the evidence of last seen in the company of the deceased, it is imperative upon the prosecution to prove that in between the period of occurrence date there was no possibility that the deceased to have entangled with any person or any stranger. In that circumstance, only it can be held that there was no chance for the victim coming in contact with the other persons and only in that circumstance, theory of last seen of evidence can be applicable. 13. In that circumstance, only it can be held that there was no chance for the victim coming in contact with the other persons and only in that circumstance, theory of last seen of evidence can be applicable. 13. In the present case, material witnesses have either tendered or have not supported the prosecution case. PWs 2 and 4 were the material witnesses who could have divulged to some extent the proximity of time between last seen and between recovery of dead body, but none have supported the prosecution case. PW 3 Puran Besra, the attesting witness of the fard-beyan, was tendered by the prosecution though the prosecution had relied upon him but there is no explanation as to why Puran Besra, who had been named by the prosecution at different stages, was tendered by the prosecution. 14. In this case, there is no eye witness. The only circumstantial evidence is the evidence of PW 6, namely, the wife of the deceased who has stated in her deposition that there was none else in the field of PW 1 when the appellant came and ask the deceased for taking toddy and the deceased at his own went with the appellant for taking toddy. He has stated that her husband was accustomed and habituated for taking toddy and always used to go out for that purpose. Therefore, the circumstance which has been relied upon by the prosecution for proving the charge has only up to the stage when the deceased has set out for taking toddy along with the appellant and there is no material to explain the long delay. PW 2 was relied upon by the prosecution during investigation to fill up this gap but he did not supported the theory as propounded by the prosecution and he has defecated the prosecution version that the deceased was seen by any other after leaving the field along with the appellant. 15. Another fact which has come prominently is delay in reporting the matter. The victim was found missing since 6.7.1989. Baleshwar Mahto, who was suspected to be involved, was seen in the house in that very evening, grave suspicion was caused against him in the same evening. 15. Another fact which has come prominently is delay in reporting the matter. The victim was found missing since 6.7.1989. Baleshwar Mahto, who was suspected to be involved, was seen in the house in that very evening, grave suspicion was caused against him in the same evening. The Police Station was hardly at a distance of 8 kilometer and there is no explanation as to why this matter was not reported to the Police in that evening itself because the suspect was none else than the appellant. This delay has remained unexplained. Another factor is that the dead body was recovered at 4.00 PM on 7.7.1989 and then also there is no explanation as to why the matter was kept pending till 10.00 AM on the next date though the Police Station was not at far distance. The criminal activity should be reported forthwith and without delay. The delay itself is never a fact that casts grave doubt but if there is no explanation as to why the delay was caused, then the delay becomes suspicious and its non-explanation goes to the root of the matter. Non-explanation of delay casts further doubt when it is seen that the occurrence though was reported at 10.00 AM on 8.7.1989 was not reported to the Court on that very day rather it was not even reported on the next date i.e. 9.7.1987 rather it went to the court of learned C.J.M. on 10.7.1989. The mandate of law is that the information must be reported to the court forthwith. The terms “forthwith” has been taken very lightly and it was reported after two days of arrest and that also remained uncounted and unexplained. This circumstance goes to the root of the matter and casts doubt as to whether the prosecution has come with clean version. Non-examination of independent witnesses, tendering of independent witnesses and withholding of the independent witness are the circumstances which coupled with the delay between the occurrence and report to Police and non-report to the court create doubt with regard to the prosecution version. Once a doubt is created, then the benefit of doubt has to be passed to the accused. 16. In view of the discussions made above, we are of the view that the prosecution has not succeeded in proving its charge against the appellant beyond the shadow of all reasonable doubts. 17. Once a doubt is created, then the benefit of doubt has to be passed to the accused. 16. In view of the discussions made above, we are of the view that the prosecution has not succeeded in proving its charge against the appellant beyond the shadow of all reasonable doubts. 17. In the result, the judgment of conviction and sentence is set aside and this appeal is allowed. The appellant is acquitted. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds. 18. As none was appearing in this appeal, Mr. Ghanshyan Jha, Advocate was appointed as Amicus Curiae to assist this Court on behalf of the above named appellant and he has argued well. We appreciate the assistance given by Mr. Jha. 19. Let a copy of the first and last page of this judgment be handed over to Mr. Ghanshyam Jha, Advocate, so that he may get the prescribed fee from the High Court Legal Services Committee, Patna.