Baharul Islam, J.
1. The appellant, Dhoda Hazarika, was convicted by the Sessions Judge, Dibrugarh and Lakhimpur Districts, at Dibrugarh, Under Section 302 of the Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for three months more.
2. The prosecution ease, briefly, is that on 23-6-1971 Kumud Bora (deceased) and Ketku Ganju (P. W. 1) who had been to the house of Nilambar, who had been bitten by a snake, were returning home. The deceased was a 'Bez' and he had been to the house of Nilambar with P. W. 1 to cure him of the snake bite. On their return at about 10 P. M., the deceased and P. W. 1 heard some musical tune from a violin in front of the E. and D. Office in village Mechlowgaon and enquired as to who was playing on the violin, The appellant replied from inside the room that he was playing with the violin, and he suddenly came out and gave some blows on the neck, shoulder and left chest of Kumud with a dao and left the place. P. W. 1 as well as Kumud raised alarm. Hearing this, the wife and children of Kumud, who were in a nearby house, came to the place of occurrence. He was taken in a bamboostretcher to Khowang Dispensary and thereafter the injured was removed to the Assam Medical College Hospital at Dibrugarh. Kumud died the following day.
3. In the same night a First Information Report was written by P. W. 5 in the name, of one Uma Kanta Bora and lodged at Moran Police Station, which was at a distance of 18 Kms. from the place of occurrence. The F. I. R., it appears, was lodged at 8.30 P. M. on 24th June, 1971, Meanwhile Kumud had expired at 7.30 P. M. presumably, after the P. Ws. 2 and 5 had left for the thana. Police originally registered a case Under Section 326 of the Penal Code, but as in the meantime Kumud had expired, police, after investigation, submitted a charge-sheet against the appellant Under Section 302 of the Penal Code, The committing Magistrate, after preliminary enquiry, committed the appellant to the Court of Session to stand his trial Under Section 302 of the Penal Code. The appellant pleaded not guilty to the charge.
4. The prosecution has examined P. W. 1 the alleged eye-witness, who accompanied the deceased while returning from the house of Nilambar, and P. Ws 2, 4, 5 and 6 who have proved certain dying declarations alleged to have been made by the deceased Kumud.
5. Shri S. A. Laskar, learned Counsel appearing for the appellant as amicus curiae submits that the evidence of the above-mentioned witnesses cannot be relied on in as much as all of them are related to, or interested in, the deceased Kumud, whereas there were P. W. D. personnel who stayed in the office of the E. and D. Department in front of which the occurrence took place. It is true that not a single person living in the neighbourhood of the place of occurrence has been examined in this case. The learned Sessions Judge merely believed P. W. 1 and the dying declarations proved by him as well as by P. Ws. 2, 4, 5 and 6, But in our opinion it is difficult to rely on their evidence for the following reasons ; 1 P. W. 1 though not related to the deceased, appears to have interest in the other witnesses as he was working as a labourer in the house of the deceased before his death and also in his family after his death 2 In the F. I. R. there is no mention of the name of P. W. 1 as an eye-witness to the occurrence, 3 In the F. I. R. also there was no mention about the alleged dying declarations made by the deceased before P. Ws. 1, 2, 4, 5 and 6. It is true that an F. I. R. need not or may not contain all the details of the prosecution case, but if the omissions are material and not explained they detract from the credibility of the prosecution case. In the instant case the prosecution case is that the deceased was returning at 10 O'clock in a very dark night. It was also the prosecution case that P. W. 1 was present at the time when assault was committed on the deceased and that P. W. 1 was the only person to have seen the occurrence. Similarly when the scribe (P. W. 5), according to his own evidence, came to the place of occurrence and was present when the dying declaration was made, he could not have omitted to mention the dying declaration in the F. I. R.
6. The defence suggestion is that the appellant's name was implicated on suspicion as the relation between the appellant and the deceased was strained. P. W. 4, Maikon Bora, widow of the deceased, has admitted in her cross-examination that their relation with the appellant was not happy. She has admitted that the appellant bought a bullock from them for 160/- and he had to pay an amount of Rs. 80/- to them ; when they demanded the balance, they were threatened by the appellant. The possibility, therefore that the appellant's name was implicated on suspicion cannot be ruled out. This suspicion is further strengthened by the fact that the lantern, which was allegedly carried by P. W. 1 has not been seized by the Investigating. Officer and no explanation has been given as to why it was not seized. If carrying of a burning lantern by P. W. 1 at the time of occurrence is not proved, then the means of recognition of the appellant in a dark night disappears. Even P. Ws. 2, 4, 5, and 6 do not speak about seeing a lantern when they visited the place of occurrence, Recognition of the culprit, therefore appears doubtful.
7. There is yet another circumstance which leads to the suspicion that the appellant was suspected to be the assailant. The occurrence took place at 10 P. M. of 23rd June and the F. I. R. was lodged at 8.20 P. M. on the following day. The distance between the place of occurrence and the Police Station, where the F. I. R. was lodged, is 18Kms, could not have taken 22 hours. In our opinion there was sufficient delay in lodging the F. I. R. The prosecution has not explained the delay. This delay possibly was necessary to guess as to who might be the culprit, and incorporating his name in the F. I. R.
8. In our opinion in this case the guilt of the appellant has not been proved beyond reasonable doubt, and, as such, the appellant is entitled to get the benefit of doubt.
9. In the result we allow the appeal and set aside the conviction and sentence imposed on the appellant by the Sessions Judge. The appellant shall be set at liberty forthwith.
10. I agree.