Criminal Appeal (SJ) No. 190 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Subhash Paswan, S/o Sohi Paswan, R/o Village- Kharhara, Police Station-Barahat, District-Banka. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Vijay Kumar Sinha-I, Adv. For the State : Mr. A.M.P. Mehta, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 325 IPC and sentenced to RI for four years and a fine of Rs. 1,000/- in default of which simple imprisonment for one year by the 2nd Additional Sessions Judge, Banka in S.Tr. No. 312 of 1993 by a judgment dated 19.08.1995. 2. The case of the prosecution is that on 15.07.1991 at 10.30 P.M. the appellant and his son were fighting with each other at her door which was objected to by the husband of the informant at which the appellant is said to have given a lathi blow on the head of the deceased whereafter the rest of the accused persons assaulted him with lathi and then fled away. The injured was taken to the hospital where he died on 19.07.1991. The First Information Report was instituted on 20.07.1991 at 10.30 A.M. i.e. almost five days later. 2 3. The prosecution in all examined eight witnesses out of whom P.W. 4 is tendered, P.W. 2 and P.W. 3 are the witnesses on the point of occurrence whereas P.W. 5 is informant of the wife of the deceased. P.W. 6 is the son of the deceased but the hearsay witness. P.W. 7 is the Doctor who conducted the post- mortem and P.W.8 is the formal witness. The Investigating Officer has not been examined. 4. Initially the accused persons were charged under Section 302/34 IPC but they were acquitted of the charges. The sole appellant has been sentenced as mentioned above. 5. It appears from the evidence of the witnesses that the injured deceased had been taken to the Police Station before he was removed to the hospital and it is only on reference of the police personnel that he was taken to the hospital but unfortunately neither the station diary entry nor the first information given at the P.S. has been proved by the prosecution during trial. The Investigating Officer has also not been examined to explain this serious lacunae in the prosecution case. In the background of the fact that the First Information Report was instituted five days later and it was received in the Court on 26.07.1991, this fact can not be brushed aside lightly since it is well known that in criminal cases the time of reporting of an 3 incident is of great importance. The investigation admittedly was initiated more than a week after the occurrence so I am not inclined to accept the prosecution case as having been proved beyond all reasonable doubt. 6. In the result, the appeal is allowed and the judgment dated 19.08.1995 passed by the 2nd Additional Sessions Judge, Banka in S.Tr. No. 312 of 1993 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 21st April, 2011. NAFR/Vikash/-