Vishnudeo Narayan, J.
1. The sole appellant named above has preferred this criminal appeal against the judgment dated 21.1.1998 and the order dated 28.1.1998 passed in ST No. 66 of 1990 by Shri Dilip Kumar Sinha, 2nd Additional Sessions Judge, Hazaribagh whereby and whereunder the appellant was found guilty for the offence punishable under Sections 302 and 201 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code and RI. for five years and a fine of Rs. 1,000/- for the offence under Section 201 of the Indian Penal Code and in default to undergo imprisonment for one year. Both the sentences were, however, ordered to run concurrently.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 7) of PW 4, Babu Ram Bedia, the informant recorded by Sri J.R. Singh, S.I. Bharkunda P.S. on 29.7.1989 at 12.30 hours at Bharkunda P.S. regarding the occurrence which is said to have taken place in the night between 28th and 29th of July, 1989 in the house of the deceased situate in the village Sanki P.S. Bharkunda (Patratu) District Hazaribagh. Golua Bedia @ Chinua Bedia is the deceased of this case. PW 4, Babu Ram Bedia, the informant is the son of the sister of the deceased whereas appellant Doman Bedia is the eldest son of the said deceased. The case was instituted on that very day at 14.30 hours and the formal FIR and the fardbeyan was received in the Court empowered to take cognizance on 31.7.1989.
3. The prosecution case, in brief, is that the informant awoke at 5 O'clock in the morning on 29.7.1989 and he came out for urination and found a Sendh cut in the west south corner of the house of the deceased and after urination he came to the room of the deceased and found it locked from outside and, thereafter, he called his brother PW 9, Gobardhan Bedia and also appellant Doman Bedia and informed them about the cutting of the Sendh and, thereafter, the appellant awoke his brother PW 6, Ghashi Bedia and asked him to bring the key of the lock of the said room. It is alleged that Ghashi Bedia opened the lock of the room of the deceased but the door was found to be bolted from inside and it could not be opened and, thereafter, PW 6 Ghashi Bedia asked PW 10, Rameshwar Bedia @ Ramesh, the third son of the deceased to go inside the said room through the passage over the inner wall of the house of the appellant and said Rameshwar Bedia @ Ramesh went inside the house of the appellant and he entered into the room of the deceased through the passage of the inner wall of the said house of the appellant and opened the door of the said room. The prosecution case further is that, thereafter, the informant along with the persons aforesaid went inside the said room and found Golua Bedia dead and there was a deep Injury on his neck caused by some sharp pointed weapon and there was copious blood fallen there and dead body was lying on his knee and the neck of the dead body was bent. It is further alleged that no person can enter into the said room from outside through the said Sendh and the person who has committed the murder of the deceased must have entered through the wall inside the house of the appellant and the appellant resides in his house with his wife along with PW 2 Jhubra Bedia, the youngest son of the deceased. The prosecution case further is that PW 1, Mahesh Mahto and PW 2 Meghnath Singh, the Mukhiya and Sarpanch, respectively also came there and said that nobody can enter inside the said room from outside through the said Sendh and on query PW 5, Jhubra Bedia aged about 7 or 8 years told that, the appellant had committed the murder of the deceased by causing injury by tangi by entering into his room through the wall of his house. It is alleged that the wife of the deceased had died 2 or 3 years prior to the occurrence and Golua Bedia, the deceased of this case works in the Lapanga Colliery and he was desirous to re-solemnize his marriage with Manju Devi as he was feeling difficulty in cooking which was protested to by the appellant. It is also alleged that the appellant also wanted to get a job in the colliery at the place of his father Golua Bedia and for that there used to be altercations between them. The deceased had four sons and the appellant is the eldest son of the deceased and he is married living separately with his wife in the room adjacent the said room of the deceased. Lastly it has been alleged that it appears that the appellant has committed the murder of the deceased with a view to get the job in the colliery.
4. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case as a result of the conspiracy of the informant who was admittedly inimical to him as of deceased due to litigation prior to the occurrence.
5. The prosecution has in all examined 13 witnesses to substantiate the charges leveled against the appellant. PW 4, Babu Ram Bedia is the son of the sister of the deceased and he is the informant of this case and his signature on the fardbeyan (Ext. 7) is Ext. 3 and PW 9, Gobardhan Bedia is his brother. PW 6, Ghashi Bedia, PW 10, Rameshwar Bedia @ Ramesh and PW 5, Jhubra Bedia are the sons of the deceased and the full brother of the appellant. PW 1, Mahesh Mahto is the Mukhiya of village Sanki, PW 2, Meghnath Singh is the Sarpanch of the said village and he has proved the seizure list (Ex. 1) regarding the recovery of the tangi which is alleged to be the weapon of assault of this case and his signature thereon is Ext. 2, PW 9 is also a witness on the said seizure list and his signature thereon is Ext. 2/1. PW 3, Bish-nu Bedia and PW 7, Mohan Bedia are also the residents of village Sanki. PW 8 has been tendered in this case whereas PW 13 is a formal witness who has proved the Jardbeyan (Ext. 6) and the formal FIR (Ext. 7). PW 11 Binod Prasad Singh was the Judicial Magistrate who has recorded the statement under Section 164, Cr PC of PW 2, Meghnath Singh, PW 1 Mahesh Mahto and PW 5 Jhubra Bedia and their statements are Ext. 4 series in this case. PW 12, Dr. Lalit Kishore Dayal has conducted the postmortem examination on the dead body of the deceased and the postmortem report per his pen is Ext. 5 in this case. I.O. has not been examined in this case and the alleged seized tangi has not been brought before the Court below. No oral and documentary evidence has been brought on the record on behalf of the defence.
6. The learned Court below has relied upon the ocular testimony of PW 5, a child witness aged about 5 or 6 years at the time of the occurrence coupled with the extra-judicial confession made by the appellant before PWs 1, 3, 4, 6, 7, 9 and 10 as well as on the testimony of the medical witness read with the testimony of PW 10 regarding he manner of the entry in the room of the deceased through the room of the appellant and found the appellant guilty and convicted and sentenced him as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below has committed manifest error in coming to the finding of the guilt of the appellant and did not meticulously consider the evidence on the record in proper perspective, It has been contended that the alleged ocular testimony of PW 5, Jhubra Bedia, the youngest son of the deceased aged about 5 or 6 years at the time of occurrence is highly unreliable and is fit to be brushed aside in view of the fact that he cannot be termed as ocular witness of the occurrence as per his own evidence and there is total absence of any other ocular evidence of the occurrence. The circumstantial evidence emanating on the record as per the testimony of the other witnesses is equally fit to be brushed aside which does not complete the chain leading to the only hypothesis of the guilt of the appellant in commission of the murder of the deceased. It has also been contended that the medical evidence as deposed by PW 12 is definitely not inconformity with the manner of assault on the person of the deceased caused by tangi as alleged by the prosecution. It has also been submitted that the IO has not taken oath in this case and the alleged confessional statement of the appellant recorded by the IO has not been brought on the record in pursuance of which the alleged tangi is said to have been produced by the appellant to the IO on which it is stated that there was human blood and there is also no report of the Serologist to substantiate the fact that the alleged tangi not produced before the Court has human blood thereon. It has further been contended that the extra-judicial confession alleged Lo have been made by the appellant before PWs 1, 3, 4, 6, 7, 9 and 10 is highly unreliable and it suffers with legal infirmity and there is no evidence brought on the record by the prosecution to corroborate the said extra-judicial confession of the appellant made before them. Lastly it has been submitted that the murder of the deceased has taken place in the night between 28th and 29th of July, 1989 and the factum of the commission of murder came to light at 5.00 O'clock in the morning on 29.7.1989 but the fardbeyan was recorded at 12.30 hours after considerable unexplained delay and PW 4, the informant in para 7 of his testimony has admitted the fact that there has been deliberation and consultation for one and half hours and, thereafter, the fardbeyan was lodged and besides that the FIR has been received in the Court empowered to take cognizance on 31.7.1989 and for that also there is no explanation on the record and as such the fardbeyan (Ext. 7) which is the basis of this case suffers with embellishment as a result of after thought, deliberation and consultation and the same is bereft of spontaneity and the true version of the occurrence. And last but not the least there is no cogent and legal evidence on the record to establish the motive as alleged for the commission of the murder of the deceased by the appellant. Therefore, the impugned judgment is unsustainable.
8. The learned APP has submitted that in this case there is a ocular testimony of PW 5, the youngest son of the deceased regarding the commission of the murder of the deceased by the appellant and the extra-judicial confession made by the appellant in presence of PWs 1, 3, 4, 6, 7, 9 and 10 having committed the murder of the deceased by tangi coupled with the recovery of the said tangi in pursuance of the confessional statement of the appellant made before the LO. It has also been submitted that there is evidence on the record of the prosecution witnesses which clinchly establishes the fact that the appellant has entered in the room of the deceased through his room by scaling the wall for the commission of the murder of the deceased and there is no other way for entry in the room of the deceased in the fact and circumstances of this case. The learned Court below has rightly believed the evidence on the record and has come to the finding of the guilt of the deceased.
9. It will admit of no doubt that Golua Bedia was done to death in his room in the night between 28th and 29th of July, 1989 and the said room was found bolted from inside and locked from the outside. PW 4, Babu Ram Bedia, the informant has deposed that he awoke at about 5 O'clock in the morning of 29.7.1989 for urination and he found a Sendh cut in the south western corner of the room of the deceased and he called the appellant and his brother PW 9, Gobardhan Bedia. PW 6, Ghashi Bedia was called from the house of PW 7, Mohan Bedia where he was sleeping and the key of the lock of the said room was with him and he unlocked the said lock but the room was found to be closed from inside. PW 4, the informant has further deposed that there is a passage to go in the room of the deceased through the Kotha Ghar of the appellant. PW 10 has deposed that as per direction of the informant he went inside the room of the deceased through the room of the appellant and he found Golua Bedia dead besmeared with blood and he opened the door of the room from inside and the persons assembled there came inside the room. PW 4, the informant has further deposed that the size and dimension of the Sendh, was such through which no person can enter into the said room through that Sendh from outside. He has also deposed that only entrance in the room of the deceased was through the room of the appellant and as such it was suspected that it is the appellant who has committed the murder of the deceased. PW 4, the informant has further deposed that the appellant confessed before him and several other persons that he has committed the murder of the deceased. He has also deposed that the deceased has four sons, namely, appellant Doman Bedia, PW 6, Ghashi Bedia, PW 10, Rameshwar Bedia @ Ramesh and PW 5, Jhubra Bedia and appellant is the eldest son whereas PW 5, Jhubra is his youngest son and the wife of Golua Bedia has predeceased him and said Golua Bedia, the deceased of this case was in service in the colliery and in the night of the occurrence the appellant and his youngest brother PW 5, Jhubra Bedia was inside in the house of the appellant. PW 1 Mahesh Mahto deposed to have come to the place of occurrence on information and he found Goula Bedia murdered. He has also deposed that no person can enter from outside through the Sendh in the room of the deceased. His evidence is further to the effect that the appellant used to reside in one room and in the adjacent room the deceased used to reside and one can enter in either of the room through the other room. He has specifically deposed that the appellant has confessed regarding committing the murder of the deceased before him in presence of several persons. PW 9, Gobardhan Bedia has also deposed to have come to the place of occurrence on the alarms raised by PW 4 and found the Sendh cut in the wall of the room of the deceased. He has also deposed that no person can enter from outside through the Sendh in the room of the deceased. He has further deposed that he awoke the appellant who was sleeping in the room nearby to the room of the deceased and directed PW 10, Rameshwar Bedia @ Ramesh to enter into the room of the deceased through the room of the appellant as the room was closed from inside and locked from the outside and the said lock was opened by the appellant who had the key of the said room. He has also deposed that when the said room was opened he found Golua Bedia dead besmeared with blood and there was sharp cut injury on the neck of the deceased caused by some sharp cutting instrument. His evidence is further to the effect that the appellant confessed regarding committing the murder of the deceased in presence of PWs 1 and 2 and several other persons in presence of the police and at the instance of the appellant the tangi was seized. PW 7, Mohan Bedia has deposed that in the night of the occurrence he was at his house and PW 6, Ghashi Bedia used to sleep in his house in the night. His evidence is further to the effect that the appellant came to his house in the midnight (sic) of the said room to take the key of the room of the deceased from PW 6 and after taking the key he returned from there and after sometime he handed over the key to this witness who kept the key with PW 6 and, thereafter, he had slept. He has also deposed that alarm was raised, thereafter, and he went to the place of occurrence and saw a Sendh cut in the wall of the room of the deceased. He has also deposed that the appellant confessed before him and others that he has committed the murder of the deceased for getting the job. He has also made confession regarding the fact that PW 5, Jhubra Bedia had seen him committing the murder of the deceased.
His evidence is further to the effect that no person can enter from outside in the room of the deceased through the said Sendh. PW 3, Bisen Bedia has deposed regarding the extra-judicial confession made by the appellant before him and others regarding committing the murder of the deceased. PW 10, Ramesh Bedia @ Ramesh has deposed that he was sleeping in the house of Pauna Bedia in the night of the occurrence and he was called by the informant and asked him to enter into the room of the deceased through the room of the appellant and, thereafter, he went in the room of the deceased from the room of the appellant and found Golua Bedia dead besmeared with blood. He has also deposed that he has opened the door of the said room from inside and the persons assembled there saw the dead body of the deceased. He has also deposed regarding the extra-judicial confession made by the appellant regarding commission of the murder of the deceased by him before several persons of the village including this witness. He has also deposed to have found the Sendh cut in the wall of the room of the deceased in which nobody can enter from outside for going into the room of the deceased. PW 6, Ghashi Bedia has deposed that he has locked the room from outside as per direction of the appellant and he slept, thereafter, and after sometime the appellant took the key from him of the said room for taking out tobacco leaf. He has further deposed that he heard the alarms that his father Golua Bedia has been done to death. He has also deposed that he does not no as to who has committed the murder of the deceased but the appellant has made extra-judicial confession before him in presence of the Sarpanch and Mukhiya regarding the commission of the murder of the deceased by him.
10, The appellant is said to have made extra-judicial confession regarding the murder of the deceased by him in presence of PWs 4,9.1,7,3,10 and 6 besides PW 2, the Sarpanch as per the evidence referred to above. Extra-judicial confessions are those which are made by the culprit elsewhere than before the Magistrate or in Court. It embraces not only expressed confession of crime but all those admissions and acts of the accused from which guilt may be inferred. All voluntary confession made by the accused is receivable in evidence on being proved like other fact. The extra-judicial confession can be accepted and can form the basis to establish the guilt of the appellant if it comes from the mouth of the witness who appear to be unbiased not even remotely inimical to the accused and in respect of whom nothing is brought out which may taint to indicate that he may have a motive for attributing an untruthful statement of the accused and furthermore the words spoken to by the witnesses are clear unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. Here in this case the evidence of PW 4 and his brother PW 9 regarding the extra-Judicial confession made by the appellant before them is not worthy of credit in view of the fact that he has enmity existing and alive with the deceased prior to the occurrence as per para 4 of his testimony. He has further deposed that there had been thoughtful deliberation and consultation for one and half hours between the informant and others after the knowledge of the murder of the deceased for instituting the case as per his fardbeyan and, thereafter, he had proceeded to the P.S. along with PW 6, Ghashi Bedia besides others. It appears queer enough as to why the fardbeyan of PW 4 was recorded when PW 6, the son of the deceased was present there. PW 9 in para 3 of his deposition has deposed that the appellant has made extra-judicial confession before him and the Mukhiya in presence of the police. He has also deposed in para 5 of his evidence that he had no talk with the appellant at the place of occurrence. Therefore, the testimony of PWs 4 and 9 has to be viewed with suspicion as they have animus to depose falsely and they cannot be termed as creditworthy and reliable witness in respect to the alleged extra-judicial confession as alleged made before them. Therefore, the evidence of PWs 4 and 9 is fit to be brushed aside in respect thereof. PW 2, Meghnath Singh, the Sarpanch does not whisper in his evidence on oath regarding any extra-judicial confession made by the appellant before him. PW 2, in para 3 of his cross-examination has deposed that he had no talk with the appellant at the place of occurrence. He has also deposed that he had also no talk with any of the person assembled at the place of occurrence. According to PW 9, the alleged extra-judicial confession was made by the appellant before PW 1 in presence of the police. In view of the evidence aforesaid the testimony of PW 1 regarding extra-judicial confession is inadmissible in evidence. The testimony of PW 7 regarding extra-judicial confession made before him by the appellant is highly improbable as per his evidence appearing in para 3 of his testimony. PW 7 has deposed in para 3 of his testimony that he had gone to the field for ploughing before Sun rise and, thereafter, he returned from the field at 9 O'clock in the day and on his return he had no talk with any person of the village. Furthermore his evidence is that the appellant confessed before him to have committed the murder of the deceased for getting the job. None of the other witnesses on the point of extra-judicial confession made by the appellant has whispered that the appellant has stated before them that he has committed the murder of the deceased for getting the job. Therefore, there is vital contradictions and material inconsistencies in the statement regarding extra-judicial confession made before him vis-a-vis to other witnesses aforesaid. The extra-judicial confession alleged to have been made by the appellant before PWs 3, 6, and 10 is also not free from blemish and it suffers with legal infirmity in view of the fact that as per their evidence alleged extra-judicial confession was made to them before the Mukhiya and Sarpanch in presence of the police. For this I have already dilated above referring the evidence of PWs 9 and PW 1, PW 10 has specifically deposed that the appellant had no talk with the Mukhiya and Sarpanch. at the place of occurrence which equally rules out the fact of any extra-judicial confession made by the appellant before them. PW 6 in para 2 of his cross-examination has deposed that whatever he has deposed in this case is based on his hearsay information. PW 3 has deposed that the Mukhiya and Sarpanch were present at the place of occurrence before his arrival and the confession was made by the appellant in their presence. It is the settled principle of law that any extra-judicial confession becomes tainted if it is made before the police. Furthermore there is inherent inconsistencies and material contradictions in the evidence of the witnesses referred to above regarding the equal words allegedly spoken by the appellant amounting to extra-judicial confession in committing the murder of the deceased and to crown all the evidence on the record does not show any motive for the appellant to commit the murder of the deceased and I will dilate in respect thereof later on at the appropriate place. The absence of any motive of the appellant for the alleged commission of the murder of the deceased is a circumstance which casts a cloud of suspicion regarding the fact of extra-judicial confession allegedly made by the appellant before them. Therefore, no reliance can be placed on the evidence of the aforesaid witness of the prosecution regarding the extra-judicial confession of the appellant allegedly made before them coupled with the fact that the alleged extra-judicial confession suffers with inherent legal infirmities and there is also no compelling reasons for the appellant to make such a confession before them. Therefore, the evidence regarding extra-judicial confession made by the appellant as deposed by the witnesses is fit to be brushed aside.
11. There is no ocular witness of the occurrence except PW 5, Jhubra Bedia, a child witness 5 or 6 years old at the time of the occurrence. He has disclosed his age in his deposition which is ten years on 10.1.1994 when he has taken oath in this case. The date of the occurrence is in the night between 28th and 29th of July, 1989. Therefore, from the date of the occurrence his age comes between 5 and 6 years. It is pertinent to mention at the very outset that the learned Court below while examining PW 5 in this case has not satisfied himself regarding the mental capacity, capability and understanding faculty of the child witness competent to testify that he can understand the question put to him and give rational answers to it. A child is competent to testify if he can understand the question put to him and give rational answer thereto. The learned Court below has acted improperly in this case by examining PW 5 without having been satisfied regarding the mental capacity and understanding faculty of the said witness competent to testify. The evidence of child witness is notoriously dangerous and they are very much prone to tutoring and as such the evidence of a child witness has to be scrutinized with care and caution and some corroboration of his testimony is required by some natural, competent and independent witness of the occurrence. PW 5 has deposed that in the night of the occurrence he was sleeping with the appellant. He has further deposed that the appellant went to the 'Kotha Ghar' of the room and he entered into the room of the deceased and assaulted at the neck of the deceased by tangi as a result of which the deceased has died. He has also deposed that the appellant has committed the murder of the deceased for getting the job. His evidence is further to the effect that, thereafter, the appellant started making hole in the wall and, thereafter, the appellant came and slept after keeping the said axe in the Kotha Ghar of his room. He has also deposed that he had stated regarding the said facts to the Mukhiya and Sarpanch of the village and also to the police in the following morning. In para 2 of his cross-examination he has deposed that he had slept in the room at 10 O'clock in the night after putting off the light and there was total darkness in the room. He has further deposed that he woke up in the morning after his continuous sleep from 10 O'clock and he did not wake in the night. The evidence of PW 5 appearing In cross examination gives a total go by to what he has stated in his cross examination in chief and, therefore, his testimony is self contradictory and inconsistent, unworthy of credit on its face value. PW 6, Ghasi Bedia and PW 10 Ramesh Bedia @ Ramesh both the sons of the deceased in their evidence on oath have not at all whispered the fact that PW 5 Jhubra Bedia had slept with the appellant in his room in the night of the occurrence. Even PW 1 and PW 2 i.e. Mukhiya and Sarpanch of the village have also not whispered in their evidence on oath regarding PW 5 sleeping in the night with the appellant in his room as well as the fact that PW 1 has disclosed to them regarding the appellant having been seen by him committing the murder of the deceased. Therefore, PW 5 appears to have been set up in this case as an ocular witness of the occurrence by the prosecution for the reasons best known to it. It is well settled that the child is prone to tutoring and hence there should be evidence of natural, competent and independent witness of the occurrence to corroborate the testimony of the said child witness. There is always the danger in accepting the testimony of the child witness as there is very possibility that under influence such a child witness might have been coached to give out a version by the persons who may have influence on him. It is equally well settled that the testimony of a child witness should only be accepted after greatest caution and circumspectim. The rational for this is that it is common experience that a child witness is himself susceptible to tutoring both on account of fear and inducement and he can be made to depose about the things which he had not seen and once having been tutored he come on repeating in a parrot like manner what has been tutored to state. Therefore, the uncorroborated testimony of PW 5, a child witness implicating the appellant in the occurrence in question is fit to be brushed aside as unworthy of credit.
12. PW 12, Dr Lalit Kishore Dayal has deposed to have conducted the post mortem examination on the dead body of Golua Bedia, the deceased of this case on 30.7.1989. The post mortem report (Ext. 5) shows that the post mortem was conducted at 2.30 P.M. The medical witness has deposed to have found the following ante mortem injury on the dead body of the deceased :
(a) Sharp penetrating wound 2'x2' pericardium deep on the left side of neck in the (lower part) above left clavical cutting the large vessels on neck penetrating into the pericardium causing injury to the large vessels of heart.
The medical witness has further deposed in his examination in chief itself that the above injury was caused by sharp cutting instrument but may not be by an axe. The prosecution case is very specific in this case regarding the assault made by the appellant on the neck of the deceased by an axe. Similar is the evidence of PW 5 also a child witness. It is said that the axe has been recovered in pursuance of the confessional statement of the appellant made before the I.O. and it is the appellant himself who has produced the said tangi. The said tangi has not been brought before the Court below. There is no iota of evidence on the record due to the non-examination of the IO regarding the recovery and seizure of the said axe. There is also no evidence on the record that the said axe had human blood thereon. And last but not the least, the said axe has not been sent to the Forensic Science Laboratory for its chemical examination and in the absence of any Serologist report it cannot be said that the said axe is the weapon of assault used for committing the murder of the decease. Moreover the evidence of the medical witness totally rules out the possibility of the axe being the weapon of assault in this case in view of the penetrating injuries found on the neck of the deceased in course of post mortem examination. Therefore, the medical evidence on the record is not at all inconformity with the manner of assault as alleged by the prosecution. Furthermore the appellant stands seriously prejudiced in the fact and circumstances of this case due to the non-examination of the I.O. as he stands debarred of eliciting facts showing his innocence in the cross examination of the I.O.
13. Two fold motive have been averred in the fardbeyan (Ext. 7) of PW 4, the informant for the commission of the murder of the deceased by the appellant. It is said that the deceased had a desire to solemnize his marriage with Manju Devi daughter of Sahdeo Bedia as he was feeling difficulty in cooking after the death of his wife which was always objected to by the appellant and secondly the appellant intended to have the job in place of his father Golua Bedia, the deceased in this case in the colliery for which there used to be quarrels between them. Let us now advert to the evidence in respect thereof. PW 4, the informant who is inimical to the informant as well as to the deceased has deposed that the deceased has intended to hand over the job in the colliery in his place to PW 6, Ghasi Bedia which was objected to by the appellant and for that there used to be quarrel to them. PW 4 has not said a word regarding the desire of the deceased to solemnize his marriage with Manju Devi as a motive for the murder by the appellant. PW 9, the brother of the informant, PW 7 Mohan Bedia and PW 3 Bisun Bedia is conspicuously silent in respect thereof in their evidence on oath. PW 1, Mahesh Mahto, the Mukhiya of the village has deposed that the deceased wanted to give job in the colliery in his place to PW 6, Ghasi Bedia but the appellant wanted to have the job for himself and for that there was always quarrel between the appellant and the deceased. The evidence of PW 4 and PW 1 stands contradicted and falsified as per the testimony of PW 10, Rameshwar Bedia @ Ramesh, the third son of the deceased. PW 10 has specifically deposed in the most clear and unequivocal terms that there was never a quarrel between the deceased and the appellant. He has not deposed in his evidence that the deceased wanted to give his job to PW 6 which was protested to by the appellant. He has further deposed that the deceased and all his sons were joint in mess and cooking was done by PW 6 Ghasi Bedia. It is also relevant to mention here that PW 6 Ghasi Bedia in his evidence on oath has not substantiated at all regarding the alleged motive as averred in the fardbeyan (Ext. 7) for the murder of the deceased by the appellant. The evidence of PW 5, a child witness is untrustworthy in respect thereof for the reasons as I have stated above. Therefore, there is total absence of any legal evidence worthy of credit regarding the genesis and motive of the occurrence in question in respect of the murder of the deceased by the appellant as alleged. Therefore, the circumstantial evidence emanating on the record does not unerringly and unmistakable point towards the only hypothesis of the guilt of the appellant and the entire evidence taken cumulatively also does not form a chain so complete that there is no escape from the conclusion that beyond all human probability the crime was committed by the appellant and non-else. Here in this case the circumstantial evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence.
14. Lastly the fardbeyan of PW 4, the informant was recorded at 12.30 hours on 29.7.1989 when the murder of the deceased had been known and come to light at 5.00 O'clock in the morning on that very day and the case was also instituted on that very day at 14.30 hours but the FIR and the fardbeyan was received in the Court empowered to take cognizance on 31.7.1989. The distance of the police station is only 10 kms. from the place of occurrence. No explanation is coming on the record by the prosecution as to why there has been delay of seven hours in lodging the case before the P.S. On the contrary the evidence of PW 4, the informant, appearing in para 7 of his testimony depicts a different picture. PW 4 has deposed that when the murder of the deceased has come to light there had been thoughtful deliberation and active consultation for one and half hours and, thereafter, the informant in the company of PW 6 Ghasi Bedia, the son of the deceased, proceeded to the P.S. for lodging the case. It is also queer enough as to why the fardbeyan of PW 6, the son of the deceased, Ghasi Bedia was not recorded for instituting this case and instead of that the fardbeyan of PW 4 who is inimical to the deceased and the appellant was got recorded. Even the fardbeyan and the FIR have been received in the Court empowered to the cognizance on 31.7.1989 i.e. on the third day of their being recorded. The FIR in the criminal case and particularly in a murder case is vital piece of evidence for the purpose of appreciating the evidence led at the trial. Section 157 of the Cr PC mandates and casts a duty on the Investigating Officer to forthwith send the report of the cognizable offence to the concerned Magistrate. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprit and the part played by him, the weapon, if any, used as also the names of the eye- witnesses, if any, and delay in lodging the FIR often result embellishment which is creature of an afterthought and on account of delay the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in by an introduction of a coloured version or exaggregated story. If the FIR is received late in the Court it can also give rise to an inference that the FIR was not lodged at the time it has alleged to have been recorded and the facts and circumstances are indicative of the fact that the FIR came to be recorded later on after due deliberation and consultations and it was ante-timed unless the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the FIR by the local Magistrate. Here in this case no explanation in respect of the delay in the receipt of the FIR and fardbeyan in the Court empowered to take cognizance is forthcoming on the record by the prosecution. PW 7 has categorically admitted in his evidence that there had been thoughtful deliberation and consultation for one and half hours prior to lodging of the fardbeyan. Therefore, the fardbeyan of this case is surrounded by suspicious circumstances and in this view of the matter the false implication of the appellant cannot be totally ruled out in the facts and circumstances of this case at the instance of PW 4, the informant, who is admittedly inimical to him. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. It is pertinent to mention here that the learned Court below has lost sight of the fact that there is no legal reliable evidence on the record to substantiate the guilt of the appellant and even the circumstantial evidence on the record does not unerringly and unmistakably lead to the only hypothesis of the guilt of the appellant. Therefore, the impugned judgment is unsustainable.
15. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned Court below is hereby set aside. The appellant is found not guilty and he is acquitted. Let the appellant be set free forthwith, if not wanted in any other case.
Laxman Uraon, J.
16. I agree.