- (1.) JAGDISH Bhalla, J. This appeal is directed against the judgment and order dated, 4-5-1984 passed by the Sessions Judge, Kheri in Sessions Trial No. 278 of 1983 convicting the appellant under Sec tion 304, Part (II) I. P. C. and sentencing him to four years 'rigorous imprisonment.
(2.) ON 22-3-1981 at about 10. 00 a. m. on F. I. R. was lodged at Police Station Maigalganj, district Kheri under Section 308, I. P. C. inter alia mentioning therein that on21-3-1981 at about 6. 00p. m. , which was the day of the Holi festival, the vil lagers were visiting at the house of Kamta P. W. 2 as it was the first Holi after the death of the father of Kamta. Roop Rani P. W. 1 was sitting at her entrance and Sobran P. W. 3, Ajodhi P. W. 4, Ummed and Pancham (deceased) were near the entrance of the house. The deceased Pancnam was embracing Ummed. Accused-appellant Chandrika armed with lathi reached there from a Galiyara towards east and said to Pancham "my enemy, the chance has come" and gave a lathi blow on the head of Pancham deceased who fell down. Kamta P. W. 2 scolded the accused Chandrika who ran away from the spot. Sobran P. W. 3, Jodhi P. W. 4 and others were the eye-wit nesses of this incident. Pancham deceased who had fallen down became unconscious although there was no bleeding. Roop Rani tried her level best to arrange for a bullock-cart to take Pancham to police station but she could get it the next morning when Pancham was escorted to the police station Maigalganj and an FI. R. of the incident was lodged by Roop Rani, as slated above. Pancham was, thereafter, taken to the hospital at Sitapur where he was examined on 22-3-1981 by Dr. K. K. Misra P. W. 6 who prepared the injury report (Ext. Ka-3 ). However, Pancham died on 28-3-1981. After the death of Pancham' the offence was converted in to Section 302, I. P. C. Learned Counsel for the appellant submitted that there is a delay in lodging the first information report as the occur rence took place on 21 -3-1981 at 6. 00 p. m. whereas the report was lodged on 22-3- 1981 at 10. 00 a. m. The explanation given by Roop Rani P. W. 1 for lodging the delayed F. I. R. is that she could not arrange the bullock-cart as she was alone and thereafter it became dark. With regard to this explanation of non-availability of the conveyance there are material contradic tions in the statement of P. W. 1 Roop Rani. From the statement of P. W. 1 it appears that Kamta P. W. 2 who is her nephew had one bullock-cart and on the date of occur rence the bullock-cart was at the residence of Kamta. Further it has been admitted that between Maigalganj and Fatehpur there is Bus service till 8. 00 O'clock in the night. With regard to the fact of darkness Roop Rani has admitted in her statement that sunset took place after almost one hour of the incident. In the circumstances it appears that there is inordinate delay in lodging the first information report and thereafter there was a considerable delay in recording the statements of the material witnesses which creates suspicion to the prosecution story. It has been further submitted that P. W. 1 Roop Rani was present along with other witnesses at the time of the incident as well as at the police station but her statement was not recorded at the police station but was recorded in the evening at her house when the police party led by the Investigating Officer visited the village. No explanation has come to justify the non-recording of the statement at first appearance and for recording it later on at her residence. On the other hand delay in recording the statements of other eye-witnesses who were easily available also creates suspicion. In this connection learned Counsel for the appellant has placed reliance on the case of Ganesh Dhawan Patel and another v. State of Maharashtra, 1979 (16) ACC 11 (Sum.): 1979 SCC (Cri) 1, wherein the Hon'ble Supreme Court has held as under: Para 15. "as noted by the trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvar-bai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue-delay on the pan of the Investigating Officer in recording their statements. Although these wit nesses were or could be available for examina tion when the Investigating Officer visited the scene of the occurrence or soon thereafter, their statements under Section 161, Cr. P. C. were recorded on the following day. " Para 29. "thus, considered in the light of the surrounding circumstances this inordinate delay in registration of the F. I. R. and further delay in recording the statements of the material witnesses, cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. " He has further relied on the case of Ram Ashrit Ram v. State of Bihar. 1981 (18) ACC 31 (Sum.): 1981 SCC (Cri) 324. In para 14 of the above ease the Hon'ble Supreme Court has held that they delay in recording the statements of the eye-wit nesses at the earliest opportunity could have given a chance to the complainant party to fabricate false circumstantial evidence at the alleged scene of crime. It does show an attempt on the part of the Investigation" Officer to suppress evidence which would have supported the defence version.
(3.) UMMED the son of Basant, accord ing to the F. I. R. was embracing Pancham deceased when the deceased was chal lenged by the accused- appellant. Surpris ingly UMMED was neither produced before the trial Court nor his statement was ever recorded by the Investigating Officer. It has also been pointed out that there was no lathi injury on the person of UMMED. It has further been pointed out that at the time of the assault on Pancham deceased one Banwari Chowkidar, a Public servant, was having food at the house of Chandrika accused. Even the accused selected the time when Banwari Chowkidar was present at his residence. It has been con tended on behalf of the appellant that it is improbable that in a village where the Chowkidar has influence and exercises his powers as well, the accused will select a lime to attack the deceased when the Chowkidar is present at his (accused's) residence. As far as this contention is con cerned. I am of the considered opinion that it is difficult to read the mind of an accused that under what circumstances he will react and the facts and circumstances force into a particular act or omission. Non-production of Chowkidar Banwari leads to various question unanswered. Had it been so the P. W. 1 Smt. Roop Rani, would have easily mentioned this fact in the F. I. R. but for the reasons best known to her she did not disclose this fact in the F. I. R. nor in her statement before the Investigating Of ficer. Either side could have produced the Chowkidar, but it was not done. I have no hesitation to appreciate the contention of the learned Counsel for the appellant that non- examination of the Investigating Officer at the trial without any explanation is a serious lacuna in the case of the prosecution. The prosecution has failed to explain why the Investigating Officer was not produced in support of the prosecution case. In support of this contention the learned Counsel, for the appellant has placed reliance on the case of Ram Dev and another v. State of U. P. , 1995 SCC (Cri) 402, wherein it has been held by the Hon'ble Supreme Court that non-ex amination of the Investigating Officer of the case at the trial is a serious lacuna in the case resulting in prejudice to the accused- appellant.;