BHATNAGAR, J. - (1.)THIS appeal is directed against the judgment dated 4. 10. 1989 passed by the learned Additional Sessions Judge No. 2, Jodhpur by which appellant Gordhan Ram @ Goda Ram was held guilty for the charges under sections 302, 364 & 404 IPC, and was sentenced to imprisonment for life and a fine of Rs. 100/- in default of payment of fine to undergo 1 months simple imprisonment on the first count; 5 years rigorous imprisonment and a fine of Rs. 100/- in default of payment of fine to undergo 1 months simple imprisonment on the second count and 1 year's rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to undergo one months simple imprisonment on the third count with the order that all the substantive sentences shall run concurrently.
(2.)BRIEFLY stated the prosecution case leading to the trial of the appellant is that on 4. 1. 1986 deceased Chenia alongwith PW 4 Leela and PW 10 Mohani went to the Shop of PW 12 Bhagaram father of Chenia. He was given sugar and tea leaves by his father, which he took to his house. On reaching his house, Gordhan Ram, who was standing out side his own house, situated nearby, called Chenia to have sweet drops. Chenia gave sugar and tea leaves to his brother Lakha standing out side his house and himself went to Gordhan Ram, Leela & Mohani went to their houses. PW 2 Moda Ram is said to be sitting at the shop of Bhagaram when the three children had gone there. When Chenia did not return till late in the night, PW 5 Jimni, mother of Chenia went to inquire of Leela about her son and was informed that Chenia was called by Gordhan Ram and had gone to him. She sent to Moda Ram and told about Chenia not returning home. On that day sister of Moda Ram and Bhaga Ram had come to the house of Bhaga Ram. She had returned to her house after taking tea and as such the family members thought that Chenia might have gone with her. He was searched at the bus stand also. After making the search in the village, he went to Pipad and did not return for 3-4 days and tried to search the boy. On 8-1-1986 in the morning when PW 1 Smt. Ghisi wife of Bhanwar Lal son of Gokul Ram opened the door of her house for going to milch the buffalo in the 'bada', she saw her uncle-in-law appellant Gordhan Ram placing the dead body of Chenia by the side of the wall of the House of Gokul Ram and going away from there. She closed the door and went inside the house and informed her husband Bhanwar Lal about what she had seen. Bhanwar Lal went to inform Moda Ram and Bhaga Ram what his wife had seen. Moda Ram came to the site where the dead body of Chenia was lying. PW 3 Nimba Ram, Sarpanch, was called at the site. He asked Moda Ram to inform the police. Moda Ram went to the Police Station, Dangiawas and lodged the report (EX. P. 1 ). PW 15 Sohan Lal on the basis of that information chalked the informant FIR (Ex. P. 16) and proceeded for investigation. He saw the dead body lying by the side of the wall of Gokul Ram's house. He prepared the necessary memos. He went to the house of Gordhan Ram and had a talk with him. The dead body of Chenia was sent to M. G. Hospital, Jodhpur, where on 9-1-1986 Dr. Dharmendra Sharma Medical Jurist (PW 16) conducted the autopsy over the dead body. The doctor prepared the post mortem Report (EX. P. 22 ). He noted ligature mark around the neck. He found one rubber string tied around the neck of the dead body and on taking off the string rigor marks around the neck 36 Cm. x 3cm. at the level of thyroid Cartilage, traverse in nature. On cut underlying tissues are ecehymosis. The doctor also noted injuries on the ribs. The cause of death according to the doctor was strangulation and duration of death was 3 to 5 days. Viscra was preserved at the request of the police. The string found tied around the neck of the dead body was taken in possession by the police. Vide memo Ex. P. 17, SHO Sohan Lal on 24-1-1986 arrested the appellant Gordhan Ram.
On 28-1-1986 while in custody Gordhan Ram furnished information Ex. P. 18 to SHO for getting recovered one Under-wear from the room situated in his 'baba'. In pursuance of that information, the SHO got recovered one under-wear from the room of the appellant in the 'bada' and took it in his possession vide Ex. P. 10. On 28-1-1986, the appellant while in custody furnished information to the SHO to get recovered golden ear-tops (Loongs) from slab in the room of his house. The SHO in pursuance of that information recovered the ear-tops and prepared the memo Ex. P. 8. The beddings were also taken from the house of the appellant as they were suspected to be stained with blood. During the course of investigation Kachha of the appellant and plaster from his house were also taken in possession by the police and sent for chemical examination because of the suspicion of stains of semen.

Upon completion of necessary investigation, charge sheet against the appellant was filed in the court of Munsif & Judicial Magistrate, Jodhpur. The learned Magistrate committed the case to the court of Sessions Judge, Jodhpur which on transfer reached to the court of Additional Sessions Judge, Jodhpur. The learned Additional Sessions Judge charge sheeted the appellant for the offence under sections 302,364 & 404 IPC and recorded his plea. Accused denied the charges and trial proceeded. Sixteen witnesses were examined by the prosecution. In his statement under section 313 Cr. P. C, the appellant denied the allegations levelled against him. He stated that there was dispute for partition between him and his brother Gokul Ram, Basti Ram & Bhura in which Nimba Ram Sarpanch played mischief and was against him. No defence witness was examined. The learned Judge placed reliance on the prosecution witnesses and passed the judgment under appeal. As the appellant was unrepresented Mr. Vasu Deo Vyas was appointed Amicus Curiae to plead on his behalf.

We heard Mr. Vasu Deo Vyas learned Amicus Curiae and Mr. S. M. Singhvi learned Public Prosecutor for the State.

At the very outset it may be observed that the prosecution case rests on circumstantial evidence only. The circumstances brought on record to connect the appellant with the commission of the crime are his having been last seen with the deceased, seen placing the dead body by the side of the wall of the house of Gokul Ram by Smt. Ghisi in the morning of 8-1-1986, the recovery of Under-wear in pursuance of the information furnished by him; the recovery of ear-tops belonging to Chenia (deceased) in pursuance of the information furnished by him from his house and the recovery of beddings suspected to have stains of blood and semen.

(3.)THE learned counsel for the appellant has strenuously contended that in this case, the First Information Report was lodged after a delay of 4 days of the missing of the boy which is sufficient to discard the prosecution case. According to him, in the natural course of events the father and the relatives of the missing boy should have informed the police instead of making efforts to trace the boy themselves. THE learned Public Prosecutor is correct that in rural area people do not attach much importance to rushing up to the police in cases of boys not being found for some time thinking that they might have gone to relatives. THE explanation coming forth from the prosecution is that the boy was being searched by all the members of the family and the father of the boy went to the villages nearby and till his return the mother and uncle cannot be blamed for the insignificance delay for not bringing the matter in the notice of the police. That, when the dead body was found near the house of Gokul Ram, Moda Ram called the Sarpanch and police was informed.
Next contention of the learned counsel for the appellant is that in this case provisions of section 157 Cr. P. C. have not been complied with in as much as the First Informantion lodged on 8-1- 1986 at 10 A. M. did not reach the concerned Magistrate till 10 A. M. on the next day i. e. 9-1-1986.

The importance of sending the report forthwith to the concerned Magistrate need not to be over emphasized. The provision is meant to discourage any improvement in the prosecution version. It will, however, depend upon the circumstances of each and every case as to whether the case of the prosecution should be discarded on this count alone. If from other circumstances the case against the accused is proved this fact of delay in sending the information to the concerned Magistrate would not itself prejudice the case of the accused.