JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 19.07.2003, passed by learned 3rd Additional District & Sessions Judge (Fast Track Court), Jamtara, in Sessions Case No. 510 of 1992/ 35 of 2003, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code, R.I. for 4 years under Section 325 of the IPC and further fine of Rs.2,000/- each and in default thereof; further to undergo SI for three months, and the sentences were directed to run concurrently. 3. The prosecution case in brief is that on 28.10.1990 at about 10 P.M. the appellants along with Avinash Murmu (deceased) came to the appellant armed with rod, lathi and tangi and assaulted the informant, his wife and his mother. When he raised alarm persons of vicinity came to help and seeing this, the appellants fled away. 4. Mr. Rajeeva Sharma, learned senior counsel for the appellants and Mr. Sabyasanchi, learned amicus appointed by this Court for the appellants assail the impugned judgment on the following grounds: i) There is a delay in lodging FIR by 18 days inasmuch as, as per the version of first information report the occurrence took place on 28.10.1990; whereas the FIR has been registered on 15.11.1990 and no explanation for delay has been explained. ii) The earliest version has not been brought on record by the prosecution, inasmuch as, by going through para 7 of the cross examination of P.W. 2 it appears that while P.W. 2 was in Hospital, the police came there and recorded her statement and P.W.2 has duly put her left thumb impression on the said statement and when the said statement was duly executed by P.W 2 the alleged FIR is inconsistent and not in consonance with Section 161/162 of the Code of Criminal Procedure because Section 162 clearly stipulates that no statement made by any person to a police officer in course of an investigation shall be signed by the person making it and since the deposition of P.W. 2 clearly indicates that her statement was recorded which was duly executed by her; the FIR also becomes doubtful and must be an afterthought. iii) Exhibit-A is an FIR lodged by one Chandmuni Marandi against the informant as well as his family members indicating therein a fight between Chandmuni Marandi and in the informant party, as such on the same day there cannot be two fight and that is the reason that purposefully the informant party had got registered of the FIR after 18 days without any rhyme and reason. iv) No independent witness has been examined on behalf of the prosecution. v) The I.O. has also not been examined in this case in order to prove the place and manner of occurrence. 5. Mr. Sabyasanchi, learned amicus vehemently argued that looking to the facts of the case on the same very day an FIR has been lodged by one 3rd party namely, Chandmuni Marandi against the informant and his family members itself goes to show that there was a fight between the two sides but with the ulterior motive, appellants have been dragged in this case. Non-examination of I.O. in the instant case became fatal for the prosecution. Relying upon the aforesaid facts and submissions, learned counsels contended that though it is not in dispute that the informant side were badly injured but it has not been proved by any piece of evidence that the appellants were involved in this case and since the conviction is based merely on surmises and conjecture, the same should be set aside. 6. Learned APP for the State has opposed the prayer of acquittal and submits that Doctor has given a categorical report about the injury and all the prosecution witnesses have supported the version of the informant that there was a fight and the informant side has been badly injured in that. However, learned APP could not rebut the very fact that there was a delay in lodging the alleged FIR which is dated 15.11.1990 though time of occurrence was 28.10.1990. He further contended that non examination of I.O. is not fatal for the prosecution. 7. However, learned APP could not rebut the very fact that there was a delay in lodging the alleged FIR which is dated 15.11.1990 though time of occurrence was 28.10.1990. He further contended that non examination of I.O. is not fatal for the prosecution. 7. Having heard learned counsel for the parties and after going through the impugned judgment and the deposition; especially of P.W. 2-wife of the informant, who stated at para 7 of her deposition that when she came to the Hospital she was very much conscious; however, after that she became unconscious and during her statement in the Hospital, police party came and she gave her statement which was duly recorded in writing and she duly put her left thumb impression on the said document. Thus, it is clear that the first information was the statement recorded by the police and duly executed by the wife of the informant. However, for the reason best known to the prosecution the said statement has not been brought on record. 8. It further transpires from Exhibit-A of the case which is an FIR lodged by one Chandmuni Marandi indicating therein that the said Chandmuni Marandi lodged an FIR on 28.10.1990 itself against the informant side for a free fight for assault under various sections of Penal Code. So, it is an admitted fact that an occurrence had certainly taken place on 28.10.1990. The learned trial court, interestingly, has referred the factum of the FIR by said Chandramuni Marandi; however, he opined that the occurrence had taken place on 28.10.1990 either with the present accused or with Chandmuni Marandi. For brevity, relevant portion of paragraph 16 of the trial court judgment is quoted herein below: “……………… It will admit of no doubt that an occurrence has taken place on 28.10.90, either with the present accused or with one Chandmuni Soren……………” By going through the aforesaid observation/finding of the learned trial court it appears that he himself was not certain with respect to the fight/assault with the present accused or with Chandmuni Marandi @ Chandmuni Soren. The word used either in the sentence clearly goes to show that the learned trial court was not certain in giving his opinion. The word used either in the sentence clearly goes to show that the learned trial court was not certain in giving his opinion. It goes without saying that since it was a criminal proceeding; as such the learned trial court should have come to a conclusive finding and should not have used either which makes the order perverse also. Admittedly, there was a fight as per Exhibit- A and the informant side were admitted to the Hospital. It is also clear that the first version of P.W. 2 was of somewhere around 1st week of November, 1990 but for the reason best known to the prosecution, the FIR was lodged on 15.11.1990 after a delay of 18 days from the date of occurrence and the first version of P.W.2 was never brought on record. At the cost of repetition, the relevance of 28.10.1990 vis-a-vis Exhibit-A is that on 28.10.1990 itself, one Chandmuni Marandi has lodged the FIR against the informant party as stated hereinabove. So, without going into the evidence of doctor with regard to injury of the informant side; it is not certain that the appellants were involved in the said free fight because the learned trial court himself has said that the occurrence had taken place admittedly either with the present accused or with one Chandmuni Marandi. The learned trial court has further failed to give any finding with regard to the action taken in the case lodged by Chandmuni Marandi. 9. Now coming to the issue of examination of I.O.; it is true that the examination of the I.O. is not fatal for the prosecution in all the cases but in the facts and circumstances of this case when no stain cloths were seized by the police, the existence of Chandmuni Marandi in the entire picture has not been proved, the time and manner of occurrence has not been conclusively proved, reason for delay in lodging the FIR and last but not the least, the reason for suppressing the first information given by P.W. 2 to the police in the Hospital makes the prosecution case weak and leads to an inference that the delay in lodging the FIR is concocted. Reference in this regard may be made to the case of Thulia Kali versus The State of Tamil Nadu reported in (1972) 3 Supreme Court Cases 393 the relevant part of para 12 of this judgment is quoted herein below: “12. ….. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. ……” 10. In view of the aforesaid discussion and judicial pronouncement, the judgment passed by the learned trial court does not have any leg to stand in the eye of law. 11. As a result, the instant criminal appeal stands allowed and the judgment dated 19.07.2003, passed by learned 3rd Additional District & Sessions Judge (Fast Track Court), Jamtara, in Sessions Case No. 510 of 1992/ 35 of 2003, is hereby, quashed and set aside. 12. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse Mr. Sabyasanchi, learned Amicus on submission of bill(s) for this case @ Rs.5000/- per hearing subject to the maximum ceiling as per the applicable Notification. 13. Let a copy of this order be communicated to the court below, the Secretary, Jharkhand High Court Legal Services Committee and the appellants. 14. The appellants shall be discharged from the liability of their bail bonds. 15. Let the copy of this order and the lower court record be sent to the court concerned forthwith.