JUDGMENT
B.K. Behera, J.
1.Concurrent findings recorded by the trial and the appellate Courts holding the petitioners to be guilty of the charge of theft for having cut away and removed branches of a pipal tree belonging to the complainant-opposite party standing on plot No. 1013/1256 at village Salijanga in the district of Cuttack on April 16, 1978 convicting them under Section 379 of the Indian Penal Code and sentencing each of them to pay a fine of Rs. 100/- and in default of payment thereof, to undergo rigorous imprisonment for a period of ten days are under challenge in this revision on the grounds that the opposite party had not proved his actual possession over the land in question where the tree stood and had not explained the delay in making the complaint. The opposite party, in spite of service of notice on him personally, has not entered appearance in this Court.
2. Normally the jurisdiction of this Court in revision is to be exercised to set aside an order in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has clearly resulted in miscarriage of justice and the High Court is not expected to act in its revisional jurisdiction as if it is hearing an appeal, but concurrent findings recorded by the trial and appellate Courts cannot be stamped as infallible because they are concurrent nor can the conviction recorded by the two Courts be maintained if it is legally unfounded and unsustainable In my view, the grounds taken on behalf of the petitioners are unassailable and must be upheld for the reasons to follow.
3. in the petition of complaint as also in his evidence, the definite case of the complainant-opposite party was that the petitioners cut away the branches of a pipal tree belonging to him standing on plot No. 1013/1256. An application (ext. A) had been made by the opposite party for demarcation of the plot. No mention had been made there in about the existence of any Pipal tree, The Khatian (Ext. 2) would belie the case of the opposite party that a Pipal tree stood on plot no. 1013/1256.
4. The Amin (P. W; 4) had reported as per Ext. 1 that there was a Pipal tree on plot No. 1013/1257, but the case of the opposite party was that theft had been committed in respect of the brandies of a Pipal tree standing on plot No. 1913.’1256 and it was not his case that the occurrence had taken place on plot No. 1013/1257. Unjustifiably, the trial Court assumed that P, W. 4 had, by slip of pen, mentioned plot No. 1013/1256 to be 1013/1257 and this finding of the trial Court was maintained by the appellate Court without any discussion and without recording any reasons therefor. No clarification had been sought by the opposite party when P. W 4 was under examination and in the absence of any material, the trial Court as also the appellate Court ought not to Have readily concluded that P. W. 4 had committed a mistake in respect of the plot number while recording it in Ext 1. It would dearly appear that the opposite party had not established that he was in possession of a Pipal tree standing on plot No. 1013 / 1256. This would be sufficient to set at naught the order of conviction.
5. The occurrence took place, as alleged, on April 16, 1978, during the absence of the opposite party who returned to the village two days thereafter on April 18, 1978. The petition of complaint was made in the Court twelve days after the occurrence on April 28, 1978. It had been stated in the complaint and the opposite party as P. W. 1 had given evidence that he had made a Station Diary Entry at the police station about the occurrence and as the Officer-in-charge was transferred, he barf been advised by another police officer to make a complaint in the Court. No such Station Diary Entry had been called for and proved. On the face of it, the explanation given by the opposite party could not be accepted. if a Station Diary Entry had been made with regard to a cognisable offence or a case had been registered on the basis of such a report, no direction could be given to the opposite party to go and make a complaint in the Court merely because of the transfer of the Officer-in-charge of the police station.
6. The statement of the opposite party that he had gone to the police station and made a Station Diary Entry could be, but had not been corroborated by any other evidence. The explanation offered by the opposite party regarding the delay in making the complaint should not have beer so glibly accepted by the Court below.
7. The trial Court had made an observation that as the complaint had been made within the period of limitation, the delay was not fatal to the prosecution. The question of limitation would come into find out as to whether a case is maintainable in the Court of law Merely because a complaint had been made during the period of limitation, it , would not follow that the complainant is not obliged to offer an explanation for delay in making the complaint.
8. The object of making a prompt report or complaint in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the parts played by them. Delay in making the report or complaint may result in embellishment and the report would get bereft of the advantage or spontaneity. Danger may creep in of the introduction of coloured and exaggerated account as a result of deliberation. It is, therefore essential that the delay in this regard should be explained satisfactorily in the trial Court. In the instant case, the delay in making the complaint had not been explained as it should have been.
9. For the foregoing reasons, findings recorded by the trial and appellate Courts cannot be allowed to stand. The order of conviction recorded against the petitioners is legally misconceived.
10. I would allow the revision and set aside the order of conviction and sentences passed against the petitioners.