JUDGMENT : Heard Mr. Suraj Deo Singh, learned Advocate, who has argued this matter as Amicus Curiae at length and also heard Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State. 2. The present appeal has arisen out of a judgment dated 7th October, 2002 passed by learned Presiding Officer Additional Sessions Court No.I (Fast Track Court), Muzaffarpur in Session Trial No.249 of 1989/241 of 2001 (State Vs. Sanjay Kumar Shahi). The trial court has convicted the appellant under Section 394 IPC and awarded a sentence to undergo rigorous imprisonment for five years. 3. The facts as revealed from the judgment under appeal are as under:- A first information report giving rise to Minapur P.S. Case No.159 of 1988 was registered on 19.10.1988 in respect of an offence alleged to have taken place on 18.10.1988 at 23.45 hours (11.45 PM). The first information report was received in the court of learned Chief Judicial Magistrate on 27.10.1988 (eight days after registration). The FIR was lodged initially under Sections 452 and 380 IPC, but on the request of the officer in-charge of the Police Station, Minapur vide his application dated 27.10.1988 the FIR was converted under Section 394 IPC. A perusal of the FIR (Ext.-3) shows that one Malti Devi, wife of Ramdeo Sah, who is a co-villager of the accused (appellant), made a statement in presence of the officer in-charge that in the last night while she was sleeping in her house which had no door and the house was also in dilapidated condition, while her husband had gone to visit Dasahara fair, two accused persons entered into her house at about 11.45 PM in the night, one of them accused no.1 Chitranjan Shahi @ Tuntun Shahi aged about 25 years and Sanjay Kumar Shahi aged about 22 years caught hold of her hand and Sanjay Shahi (appellant) started assaulting her on her left hand. Chitranjan Shahi @ Tuntun Shahi assaulted her on her head by something causing bleeding from her head. It is alleged in the fardbeyan that one more person was there with them, Sanjay Shahi (appellant) had caught hold of her left hand and accused Chitranjan Shahi @ Tuntun Shahi took out Rs.4400/- in cash, one pair of silver ornament weighing about eight bhar, one gold nose pin and gold earring, two bali weighing six Ana from her box and left the house. She further alleged that when she raised hulla, her mother-in-law also started raising hulla, later on they came to know that co-villager Baidyanath Shahi and Ram Ganesh Shahi had also seen the accused persons fleeing away. It is alleged that the accused persons are covillagers and the people in the village are afraid of them. It is alleged that she had been taken to hospital for treatment where she was treated. The informant put her thumb impression (LTI) and Ramdeo Sah (her husband) and Harivansh Shahi put their signature on the fardbeyan. The signature of the witness Ramdeo Sah has been marked as Ext.3. 4. It appears that after investigation police submitted a charge-sheet vide charge-sheet no.6/89 dated 27.01.1989 under Sections 394/397 and 398 IPC against Chitranjan Shahi @ Tuntun Shahi and Sanjay Shahi (appellant). After taking cognizance the case was committed to the court of Session. It appears that in course of trial, accused Chitranjan Sahi was declared absconder, his bail bond was cancelled and the trial was separated vide order dated 03.12.2001. 5. In course of trial, prosecution examined 7 witnesses. Ram Narayan Prasad (PW-7) is a formal witness who proved the FIR and fardbeyan which was marked as Ext.-2 and signature of Ramdeo Sah on fardbeyan is Ext.-3. PW-1 Ram Janam Shahi and PW-6 Ragho Shahi were declared hostile. PW-2 Ramdeo Sah is the husband of the informant Malti Devi (PW-4), Urmila Devi (PW-3) is the brother’s wife of Ramdeo Sah and Dr. Anisur Rahman (PW-5) is the doctor who examined the injuries on the person of Malti Devi. The injury report has been marked as Ext.-1. 6. The plea of the defence was of alibi. The defence examined three witnesses i.e. Nagendra Sah (DW-1), Rajeshwar Sahi (DW-2) and Nagendra Sahi (DW-3) all of them have supported the plea of the appellant that at the time of alleged occurrence the appellant was at Minapur chowk which is at a distance of about two kilometers from the alleged place of occurrence. 7. The Investigating Officer in the present case was not examined. PW-4 in her statement stated that the accused persons had assaulted her on her head and hand. 7. The Investigating Officer in the present case was not examined. PW-4 in her statement stated that the accused persons had assaulted her on her head and hand. PW-5 has proved the injury report (Ext.-1) stating that on that day he had examined Malti Devi, wife of Ramdeo Sah and had found (i) one lacerated wound over left perital bone 3/4” X ¼” X ¼” caused by hard blunt object. Simple injury. (ii) one swelling with abrasion over left fore-arm caused by hard blunt object. Simple injury. (iii) Abrasion over dorsal aspect of left hand caused by hard blunt object. Simple injury and (iv) one swelling over left scapular region caused by hard blunt object. Simple injury. All the injuries were caused within six hours. 8. The trial court convicted the appellant and sentenced him as stated above. The learned trial court held that in the present case non-examination of the I.O. is not fatal to the prosecution case. The trial court held that in the circumstances in which the crime was committed the informant could have only seen the accused persons in the torch light of the accused and no other person could have seen it. The informant immediately disclosed about the names of the criminals to her Gotani (PW-3) and her husband later on. The trial court held that the evidences of PWs 3 and 2 are not hear say but are admissible under Section 6 of the Indian Evidence Act. The evidence of the doctor in respect of injuries found on the person of the informant is in conformity with the evidence of the informant. Hence, the trial court held that it has no doubt that the crime was committed by the accused as stated by the prosecution. The plea of alibi was rejected by the trial court. 9. Learned counsel (Amicus Curiae), while arguing on behalf of the appellant, has submitted that in the present case the occurrence had allegedly taken place on 18.10.1988 at about 11.45 pm in the dead of the night. The informant was allegedly taken to Primary Health Centre where the PW-5 examined her injuries, but whether PW-4 disclosed anything to PW-5 has not been stated by him in course of evidence. The informant was allegedly taken to Primary Health Centre where the PW-5 examined her injuries, but whether PW-4 disclosed anything to PW-5 has not been stated by him in course of evidence. Since, PW-5 was the first independent person who had occasion to meet the appellant and had examined her it was natural that he would have asked the informant about the reasons of those injuries. He was also obliged to inform the police station if it was a medico-legal case. PW-5 was named as charge-sheet witness but in course of evidence nothing has come to show that he had stated the I.O. about the disclosure if any made to him when the informant came for her treatment. Even informant did not claim in her statement that she disclosed the alleged occurrence and name of this appellant as one of the accused to the doctor. Neither the I.O. was examined nor the case dairy in which statement of PW-5 was recorded under Section 161 Cr.P.C. could be exhibited on behalf of the prosecution, therefore this vital discrepancy in quality of the evidence would be fatal to the prosecution. 10. Learned counsel submits that the evidence of PW-5 would have gain more importance because it reveals from the records that the FIR was lodged by an illiterate lady who simply put her thumb impression on the fardbeyan which was recorded by the investigating officer on 19.10.1988 (Wednesday). The said FIR reached in the court of learned Chief Judicial Magistrate only on 27.10.1988 i.e. after about eight days, this inordinate delay in receipt of the FIR in the court of learned Chief Judicial Magistrate is another factor which cast a reasonable doubt on the genuineness of the allegations as recorded in the fardbeyan. It is his submission that this delay of eight days, in the facts and circumstances of the case, would entitle the accused (appellant) to get a benefit of doubt. 11. It is submitted that Ramdeo Sah (PW-2) happens to be the husband of the informant who had put his signature on the FIR in the margin portion. The another person who had put his signature on the margin portion was Haribash Sahi, but said Haribash Shahi was not made a charge-sheet witness in the present case. 11. It is submitted that Ramdeo Sah (PW-2) happens to be the husband of the informant who had put his signature on the FIR in the margin portion. The another person who had put his signature on the margin portion was Haribash Sahi, but said Haribash Shahi was not made a charge-sheet witness in the present case. Referring to the depositions of the witnesses, learned counsel submits that the informant Malti Devi (PW-4) in her deposition has stated that Chitranjan Shahi had lighted the torch, Sanjay Shahi assaulted on her head and on her hand and blood started coming out. She has further stated that she had gone to Minapur hospital for treatment. She claims to have identified both the accused persons who were present in the house. In her examination, she has stated that the house of the accused is situated at a distance of two Laggi (normally a bamboo of size 5-6 hands is called Laggi) from her house. In her cross-examination she has further stated that after the accused fled away the informant went to the room of her younger gotani and disclosed about the occurrence. Learned counsel submits that in her cross-examination the informant has not stated that she had disclosed the name of the accused persons to her gotani. 12. Learned counsel further submits that from the statement of Urmila Devi (PW-3), who is younger gotani of the informant, it would appear that she has made false statement that she had seen the accused persons fleeing away. In her examination she has stated that her gotani Malti Devi told her that Chitranjan Shahi had assaulted her on her head and Chitranjan Shahi had taken away Rs.4400/- and radio etc. In paragraph 11 of her cross-examination she has stated that two boys (son of her gotani) were sleeping on the Darwaza. Learned counsel submits that it is highly surprising that neither the name of those two boys who were sleeping on the Darwaza were disclosed by the informant nor her gotani and these two boys have not been examined by the prosecution. Learned counsel further submits that it is highly unbelievable that while three ladies inside the house raised Hulla, the two boys who were sleeping on the Darwaza did not come forward and they did not identify the accused. Learned counsel further submits that it is highly unbelievable that while three ladies inside the house raised Hulla, the two boys who were sleeping on the Darwaza did not come forward and they did not identify the accused. In paragraph 17 this witness has further stated that she was awaken from slumber only on hearing Hulla of her gotani, learned counsel submits that informant has stated in her deposition that she raised Hulla after the accused persons had fled away, it means PW-3 reached to the informant when the accused persons had already fled away. Learned counsel also points out that the informant in her fardbeyan has stated that the accused Chitranjan Shahi had assaulted her on her head causing bleeding, but in her deposition in course of trial she changed her statement and stated that Sanjay Shahi (appellant) had assaulted on her head, but PW-3 the gotani of the informant has stated that when she went to the room of the informant she was told that Chitranjan Shahi had assaulted on her head and caused injury and he had fled away with cash Rs.4400/- and radio etc. 13. Thus, according to learned counsel, it is a clear case of false implication of the present appellant only as an afterthought at a belated stage. Learned counsel submits that PW-6 Ragho Shahi who is a co-villager and had also gone to the house of the informant on hearing Hulla found that the people were standing there and theft had allegedly taken place in the house of the informant, but who had committed the theft or had assaulted the informant was not known. This witness has further denied that he had disclosed the name of Chitranjan Shahi @ Tuntun Shahi and Sanjay Kumar Shahi in connection with this case. Learned counsel further submits that fardbeyan in the present case has been proved by one Ram Narayan Prasad who is said to be a clerk in the Civil Court at Muaffarpur. He has proved the fardbeyan and formal FIR as Ext.-2, but in his cross-examination he has categorically admitted that he does not know the present address of Rajnath Singh (officer in-charge, Minapur police station) and has never seen him and he has no occasion to work with him or to see his signature. He also denied any knowledge about the date and time when the fardbeyan was recorded. He also denied any knowledge about the date and time when the fardbeyan was recorded. Learned counsel submits that this conduct of the prosecution is highly doubtful in bringing this formal witness to prove the fardbeyan and signature of Ramdeo Sah. Learned counsel submits that Ramdeo Sah had himself deposed in course of the trial as PW-2, but fardbeyan was not proved by him or the informant rather the formal witness who had not seen the officer in-charge, Minapur police station recording the fardebyan was brought to prove the fardbeyan. Learned counsel has doubted the signature of Ramdeo Sah on the fardbeyan. 14. Learned counsel further submitted that in the present case there was no compliance of the provisions of Section 313 Cr.P.C. and the trial court has not at all considered the submission on behalf of the defence. The non-examination of I.O. will prove fatal for the prosecution. Learned counsel has also placed the statement of the defence witnesses who have all stated that they were together with the present appellant on the date and time at Minapur Chowk and were watching dance in the Dasahara Mela. 15. On the other hand, learned Additional Public Prosecutor Mr. Sujit Kumar Singh has submitted that the trial court judgment is based on the evidences which were brought on the record. He further submits that non-examination of I.O. in the present case would not prove fatal. Learned counsel submits that statement of informant and her gotani (PW-4 and PW-3) respectively are consistent on the point of identity, therefore no interference is required with the judgment of the trial court. CONSIDERATION 16. I have heard learned counsel for the parties and perused the records. The submission of the learned counsel for the appellant on the point of delay in sending the FIR to the court of learned Chief Judicial Magistrate has not at all been contested by offering any reason from the records. The delay of eight days in sending the copy of the FIR would definitely prove fatal for the prosecution. The submission of the learned counsel for the appellant on the point of delay in sending the FIR to the court of learned Chief Judicial Magistrate has not at all been contested by offering any reason from the records. The delay of eight days in sending the copy of the FIR would definitely prove fatal for the prosecution. From the facts emerging out from the records, it appears that the independent co-villagers like Ragho Shahi and PW-1 who have been declared hostile have said that they had heard Hulla about the theft which had taken place in the house of the informant, but at the same time they have clearly stated that they had not heard about the name of the accused persons. PW-1 has categorically denied that he had given any statement to the investigating officer. In such circumstance by not examining the I.O. and non-exhibition the case diary the prosecution has only damaged it’s own case. 17. Because the investigating officer was not examined, therefore delay in sending the FIR to the court of learned Chief Judicial Magistrate has not been explained. In absence of I.O. the prosecution has not got exhibited the case diary of the case and, therefore, the case of the defence has definitely been prejudiced. The accused (appellant) was admittedly a neighbour and, therefore, it is highly unbelievable that a well-known neighbour will go to commit dacoity without bearing mask on his face. The statements of the informant on the point of assault in her fardbeyan and in course of trial are shifting from Chitranjan Shahi @ Tuntun Shahi to Sanjay Shahi (present appellant). The informant and other prosecution witnesses have identified both the accused persons in the court room, but fact remains that the trial of this appellant was separated from Chitranjan Shahi @ Tuntun Shahi, therefore there was no question of presence of both the accused in the court room during trial. The statement of PW-3 that two boys were sleeping on the Darwaza creates further doubt because this fact was concealed in the fardbeyan and then in the deposition of the PW-2 as well as PW-4. If two boys were sleeping on the Darwaza then it is highly unbelievable as to how they could not awake from slumber and why they were not examined as a witness to support the case of the prosecution. If two boys were sleeping on the Darwaza then it is highly unbelievable as to how they could not awake from slumber and why they were not examined as a witness to support the case of the prosecution. The deposition of doctor (PW-5) nowhere talks of information furnished to him, if any by the informant who went to him with the injuries. It is an admitted fact that doctor examined the informant on 19.10.1988 at about 2.00 am whereas the FIR was lodged on the same day at 6.00 pm, therefore the informant had first gone to the doctor and thereafter she went to the police station in the evening. Had she disclosed about dacoity committed in her house and the name of the accused the doctor (P.W.5) was obliged to inform the police station because it was a medicolegal case. The injury report (Ext.-1) appears to have been prepared later and the same was sent to the S.I. of police, Minapur. It means for the whole night and till next day up to 6.00 pm no FIR was registered and doctor was not disclosed about the name of the persons who had assaulted the informant. The delay in sending the FIR to the court of learned Chief Judicial Magistrate, Muzaffarpur is such that it gives rise to a belief in the mind of this Court that during the period of about eight days police had an opportunity to change the fardbeyan of the informant and a case of theft in the dwelling house of the informant was converted in a case of dacoity impleading the present appellant as one of the accused. 18. It seems that the informant could not identify the accused who had committed theft and had assaulted her, otherwise there was no reason why she could not disclose the name of the accused to the doctor and the doctor did not inform the police about the informant coming to her for treatment in connection with a medico-legal case. In the fardbeyan itself she has stated that she had gone to the doctor where she was treated clearly shows that treatment was received by the informant without disclosing the alleged occurrence to the doctor. In the fardbeyan itself she has stated that she had gone to the doctor where she was treated clearly shows that treatment was received by the informant without disclosing the alleged occurrence to the doctor. The distance of police station from the alleged place of occurrence is not too far and it is apparent that Minapur Chowk is situated hardly at a distance of 1-2 kilometer and according to the findings returned by the trial court it could hardly take 5-10 minutes to reach there from a bicycle. Thus alleged occurrence could have been reported to the police station immediately when the informant was taken to doctor and was taking her treatment. This was not done only because at that point of time the informant could not think of the name of the accused. It was only after the whole day of deliberation on 19.10.1988 at about 6.00 pm the FIR was lodged but it was not sent to the court of learned C.J.M. and the FIR was sent only after eight days. Thus, possibility of changing the FIR cannot be ruled out. Further the deposition of the informant and her gotani are totally inconsistent, on the one hand informant says that she went to the room of her gotani when accused had already left the house, at the other hand her gotani (PW-3) claimed that on hulla raised by the informant as she entered the room she woke up and then she saw the accused persons fleeing away. This claim of PW-3 is not reasonably believable. 19. In the totality of the facts emerging out from the deposition of the witnesses, I am of the considered opinion that delay of eight days in sending the FIR to the court of learned C.J.M., Muzaffarpur, the informant firstly going to the doctor in the night at 2.00 am but then not disclosing the alleged occurrence to the doctor and going to the police station only on 19.10.1988 at 6.00 pm, the inconsistencies in the deposition of witnesses, non-examination of I.O. and non-compliance with the provisions of Section 313 Cr.P.C. in terms and spirit are the cumulative reasons to reach on a conclusion that the name of the appellant was brought in the fardbeyan only at a belated stage by way of an afterthought. 20. 20. In course of trial, the prosecution witnesses were suggested that accused Sanjay Shahi gave his land to his man near the house of Ramdeo Sah for which the informant was angry and on the instigation of her husband she filed a police case. DW-1 Nagendra Sah in his deposition has stated that the accused Sanjay Shahi (appellant) gave some land near the house of the informant to Nagendra Shahi who constructed his house on that land. He has stated that at the time of alleged occurrence accused Sanjay Shahi was at Minapur Chowk and had never separated throughout the night. The other defence witnesses have also supported this statement of DW-1. In this case there is no independent witness and in view of the reasons which I have already taken note of hereinabove, I am of the considered opinion that the trial court has completely missed out on the aspect of delay of eight days in sending the FIR to the court of learned C.J.M., Muzaffarpur as also another aspects which have been discussed hereinabove. 21. In my opinion, the benefit of doubt in the present case would go to the appellant. The judgment under appeal is hereby set aside. 22. As a result, the appeal is allowed and the accused appellant is discharged from the liability of the bail bond.