Allahabad High Court
Chandresh Yadav And Others vs State Of U.P. on 26 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2608
Bench: Bala Krishna Narayana, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No.4
Case :- CRIMINAL APPEAL No. - 1101 of 2011
Appellant :- Chandresh Yadav And Others
Respondent :- State of U.P.
Counsel for Appellant :- L.P. Singh,Ghan Shyam Das,Mayank Srivastava,R.B. Maurya,Sudhakar Pandey
Counsel for Respondent :- Govt. Advocate
And
Case :- CRIMINAL APPEAL No. - 1100 of 2011
Appellant :- Yogindra Yadav
Respondent :- State of U.P.
Counsel for Appellant :- L.P. Singh
Counsel for Respondent :- Govt. Advocate
And
Case :- CRIMINAL APPEAL No. - 1099 of 2011
Appellant :- Rama Shankar Yadav And Anr.
Respondent :- State of U.P.
Counsel for Appellant :- L.P. Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Bala Krishna Narayana, J.
Hon'ble Rahul Chaturvedi,J.
(Delivered by Hon'ble Rahul Chaturvedi, J.)
1. A cluster of three connected appeals filed by different set of accused-appellants questioning the legality and validity of common judgement and order of conviction dated 25.01.2011 wherein learned III-Additional Sessions Judge, Ballia while deciding Session Trial No.42 of 2007 (State of U.P. vs. Chandresh Yadav and 7 others) has convicted all the eight accused-appellants. This Court proposes to adjudicate all three above appeals by a common judgement with the assistance of the submissions and learned arguments raised by the counsel for the rival parties.
2. Heard Shri Kamal Krishna, learned Senior Counsel who has spearheaded the battery of seasoned lawyers namely, Shri Ghan Shyam Das, Shri Shashi Bhushan, Shri Sudhakar Pandey and Shri Mayank Srivastava for the appellants and Shri H.M.B. Sinha, learned Additional Government Advocate and Shri Awdhesh Shukla, learned State Law Officer at length.
3. As mentioned above, out of the aforementioned three appeals, we are also adjudicating Appeal No.1101 of 2011 (Chandresh Yadav and others vs. State of U.P.) as leading appeal and the same reasoning would be applicable in the remaining appeals.
4. The appellants of these appeals are jointly and collectively assailing the judgement of conviction dated 25.01.2011 passed by learned III-Additional Sessions Judge, Ballia in Session Trial No.42 of 2007 In re : State of U.P. vs. Chandresh Yadav and 7 others, convicting all eight appellants under sections 147, 148, 302 I.P.C. read with 149, 504, 506 I.P.C., Police Station-Reoti, District-Ballia. While deciding the above mentioned session trial, learned Sessions Judge after recording the conviction to all the named accused sentenced all of them u/s 302/149 I.P.C. for life imprisonment with a fine of Rs.5000/- and in default of payment of fine, six months additional imprisonment. Similarly under section 147 I.P.C. one year rigorous imprisonment and under section 148 I.P.C. two years rigorous imprisonment was sentenced, acquitting the appellants under sections 504 and 506 I.P.C. All the sentences have been directed to run concurrently.
5. Before touching the merits of the case, it is imperative to have a eagle's eye view to the entire prosecution case for just and proper adjudication of facts of the case and the testimonies of prosecution witnesses in support thereof.
6. PROSECUTION VERSION IN FIR :- The present criminal case triggered after lodging the F.I.R. by one Rajan Yadav s/o Dhaneshwar Yadav on 06.10.2006 at 7.35 A.M. referring to the incident said to have occurred during intervening night of 4/5.10.2006 around 01.00 in the dark hours of midnight. The scribe of this F.I.R. was one Shri Girish Kumar Mishra, member of Kshetra Panchayat Muni Chhapra, District-Ballia. Police Station Reoti was barely ten kilometers far from the place of occurrence (Rampur Masrik). This F.I.R. was registered as Case Crime No.93 of 2006 under sections 147, 148, 149, 304, 308, 324, 323, 504, 506 I.P.C. against as many as eight named persons attributing an omnibus and general role of allegedly assaulting upon Ram Badan Yadav (D-1) and Tarkeshwar Yadav (D-2) initially making them seriously injured, who later on on different occasions took their last breath.
7. From the F.IR., given by Rajan Yadav, it reveals that, he claims that the informant is the permanent resident of Village Rampur Masrik of Police Station-Reoti, District-Ballia. In the north of river Ghaghra, he is having a small cottage ("DERA") where he was engaged in agriculture and also having stock of cattle. During intervening night of 4/5.10.2006 around 01.00 in the dead hours of night, the informant along with his brothers Ram Badan Yadav (D-1) and Tarkeshwar Yadav (D-2) were asleep. During those dead hours of night, he overheard certain exotic cries and immediately thereafter the informant beheld that the named accused persons namely, (i) Parasuram Yadav s/o Dharm Nath Yadav, (ii) Chandresh Yadav s/o Jairam Yadav, (iii) Ram Chandra @ Malik Yadav s/o Parasuram Yadav, (iv) Joginder Yadav s/o Jagdev Yadav, (v) Shriram Yadav s/o Dharm Nath Yadav and (vi) Rajan Yadav s/o Sudama Yadav, all resident of Rampur Masrik along with (vii) Rama Shankar Yadav s/o Radhey Shyam r/o Dataha and (viii) Bira Yadav s/o Sarju Yadav r/o Alakh Diari have jointly, mercilessly and indiscriminately assaulted with their respective weapons of assault, namely, lathi, danda and gandasa upon his brothers named above, resultantly, both the brothers got seriously injured and turned unconscious. Upon hearing screams and cries, number of persons gathered at the place of occurrence. The assailants took to their heels from the site, hurling filthy abuses and extending threats to their lives by opening fires from their Katta (country made pistol). At the stage of unconsciousness, the injured were taken to CHC, Reoti and after providing first aid, they were referred to District Hospital, Ballia. During treatment at District Hospital Ballia, one of the injured, Ram Badan Yadav lost his life on 05.10.2006 itself, however, Tarkeshwar Yadav underwent treatment at District Hospital. This incident was witnessed by Shri Kishun Yadav s/o Jangali Yadav and Ganga Dayal Yadav S/o Chhatthu Yadav. It would not be out of context herein to mention that during the course of treatment Tarkeshwar Yadav (D-2) too, took his last breath on 10.10.2006 without getting recorded any dying declaration.
8. It is borne out from the record of the case that on the basis of written Tehrir (Report) (Ex. Ka-1) submitted by Dr. Girish Kumar Mishra, Member Kshetra Panchayat, Muni Chapra Ballia on behalf of informant Rajan Yadav (P.W.-1), one Constable Rajdeo Yadav (P.W.-4) penned down Chik FIR (Ex. Ka-3) and registered it as Case Crime No.93/2006, undere sections 147, 148, 149, 304, 308, 324, 323, 504, 506 I.P.C., P.S.-Reoti, District-Ballia vide G.D. No.10 at 7.35 AM dated 06.10.2006.
9. After registering the above F.I.R., Shri Atma Yadav (P.W.-7) S.H.O., P.S.-Reoti, Ballia, himself has started exploring and investigating into the matter. During the investigation he recorded the statements u/s 161 Cr.P.C. of the Constable scribe of First Information Report, the first informant Rajan Yadav, thereafter reached the spot of occurrence with his colleague Constables, prepared site plan (Ex. Ka 12) in his own handwriting and signatures. During course of the investigation, the Investigating Officer of the case prepared recovery memo of blood stained and plain earth (Ex. Ka 13). Besides above, a torch belonging to Shri Kishun and Ganga Dayal Yadav was also recovered and was exhibited as Ex. Ka-2 dated 19.11.2006. On 10.10.2006 the Investigating Officer of the case effected the arrest of the named accused Chandresh Yadav, Ram Chand @ Malik and recorded their statements. After getting information from the informant on 15.10.2006, that his brother Tarkeshwar Yadav took his last breath on 10.10.2006 at District Hospital, Ballia, the Investigating Officer Shri Atma Yadav (P.W.-7) geared up the investigation and arrested Parashuram Yadav on 20.10.2006 from Reoti Bus Stand. During custody, Parashuram Yadav, an accused, confessed his guilt before him and offered the recovery of weapon of assault. Accordingly, the accused Parashuram Yadav, piloted the police party to his residence and from south-west of his 'SAHAN', under the heap of straw, two Lathi-Dandas were recovered at his pointing out, revealing that the alleged weapon of assault was used by him and his accomplice Chandresh Yadav s/o Jairam. The alleged recovery memo of Lathi-Danda having no blood stained over it, was prepared on 20.10.2006 and exhibited as "Ex. Ka-14". Besides this, the site plan of alleged recovery was also prepared and exhibited as "Ex. Ka-15".
Since two persons lost their lives in this transaction of assault, the injury report was prepared by Dr. B. Narayan (P.W.-3) on 05.10.2006. The injury report of Ram Badan Yadav (Ex. Ka-3) and Tarkeshwar Yadav (Ex. Ka-4) are part of the paper book. After the demise of Ram Badan Yadav on 5.10.2006 and on the tip off by Dilip Kumar, the ward boy of District Hospital Ballia, the inquest report (Ex. Ka 18) was prepared on 06.10.2006 at the Hospital itself. The inquest report of Ram Badan Yadav was prepared on 06.10.2006 having five Panchs, out of them three claimed themselves to be eye-witnesses of the incident, namely Bachcha Lal Yadav, Dhaneshwar Yadav and Rajan Yadav (Informant) and in their opinion, recorded in the inquest report of Ram Badan Yadav, in the dead hours of intervening night of 4/5.10.2006 while they were asleep in the Dera on the bank of river "SOME UNKNOWN MISCREANTS" brutally assaulted upon the injured persons and during course of treatment Ram Badan Yadav lost his life. Similarly, after the death of another deceased Tarkeshwar Yadav on 10.10.2006, his inquest was also prepared at District Hospital Ballia on 10.10.2006 itself (Ex. Ka-6). After collecting all the materials and recording the statements of as many as 21 witnesses in case-diary, the Investigating Officer prepared his report under section 173(2) Cr.P.C. and submitted charge-sheet on 01.12.2006 (Ex. Ka-16) against all the named accused persons u/s 147, 148, 149, 308, 304, 325, 504, 506 I.P.C.
10. We have keenly perused the injury reports of the injured/deceased (D-1 and D-2). The injury report was prepared by Dr. B. Narayan (P.W.-3) on 05.10.2006 itself. The injury report of Ram Badan Yadav (D-1) reveals that he was medically examined on 05.10.2006 at 10.30 AM and following injuries were found over his person :
(i) Lacerated wound 3 cm x 1 cm, muscle deep on the right side of head, 7 cm above right eyebrow, margin red and swollen.
(ii) Lacerated wound 3 cm x 0.5 cm muscle deep on left side of head, 4 cm above left eyebrow. The margins were red and swollen.
(iii) Lacerated wound 5 cm x 1 cm, muscle deep, on the middle of the head, 13 cm above right ear.
(iv) Contused swelling 6 cm x 4 cm on the left forearm. 4 cm above the left wrist. This injury was kept under observation and advised x-ray.
(v) Lacerated wound 2 cm x 0.5 cm., muscle deep in between right ring and little finger.
(vi) Lacerated wound 6 cm x 1 cm, deep bone on the right leg , 13 cm below the right knee.
According to the opinion of doctor, all the injuries were caused by hard and blunt object. Injury No.(iv) was kept under observation and advised X-ray. Rest of the injuries were simple in nature and about half day duration. Whereas the injury report of Tarkeshwar (D-2) was also prepared on the same day i.e. 5.10.2006 at 10.45 AM and as many as following seven injuries were found over his person :
(i) Lacerated wound 7 cm x 1 cm muscle deep on the right side of head, 10 cm above right eyebrow. Margins were red and swollen. This injury was kept under observation and advised X-ray.
(ii) Lacerated wound 3 cm x 1 cm muscle deep in between left and ring finger. Margins were red and swollen.
(iii) Contused swelling 9 cm x 7 cm on the back of left palm. Margins were red and swollen. This injury was kept under observation and advised X-ray.
(iv) Lacerated wound 2 cm x 1 cm muscle deep on the right leg, 10 cm below the right knee.
(v) Lacerated wound 2 cm x 1 cm in front of left leg, 10 cm above left ankle.
(vi) Contused swelling 6 cm x 4 cm on the back of right foot, reddish in colour. This injury was kept under observation and advised X-ray.
(vii) Lacerated wound 1 cm x 1 cm on top of right 3rd toe.
According to the doctor, all the injuries were caused by hard and blunt object. Except injury nos.(i), (iii) and (vi), all were found to be simple in nature and could have been caused within the duration of half day.
During cross-examination, Dr. B. Narayan (P.W.-3) states that though the injured persons were brought by Rajan Yadav (Informant-P.W.-1) but he did not disclose anything or provided any clue about the real cause of the injuries, allegedly sustained by his brothers, though he strangely claims to be the eye-witness of the incident.
11. During course of treatment both the injured persons Ram Badan Yadav (D-1) and Tarkeshwar Yadav (D-2) lost their lives. Ram Badan Yadav (D-1) died on 05.10.2006 around 4.55 PM whereas Tarkeshwar Yadav (D-2) died on 10.10.2006 around 3.40 AM. The autopsy report of both the deceased persons were exhibited as "Ex. Ka-5" dated 6.10.2006 and "Ex. Ka-7" dated 10.10.2006 respectively.
(I) Dr. J.P. Pandey (PW-5) prepared the postmortem report of Ram Badan Yadav (D-1) whereas autopsy report of Tarkeshwar (D-2) was prepared by Dr. Pradeep Kumar Singh (PW-8) under their seal and signatures.
The postmortem report of Ram Badan Yadav (D-1) reveals nine ante-mortem injuries as against six injuries shown in the injury report, which are as follows:-
Ante-Mortem Injuries :
(i) Stitched wound (two stitches) on the head, above 7 cm left ear. After opening stitches, 3 cm x 0.2 cm scalp deep. Margins were irregular.
(ii) Abraded contusion 3 cm x 3.5 cm on the left forehead, 2 cm below injury no.(i).
(iii) Stitched wound (three stitches) 4 cm long on the left side of head, 10 cm above left ear. After opening stitches, 4 cm x 0.5 cm deep bone. Margins were irregular.
(iv) Abrasion 2.5 cm x 1.2 cm, above the left spinal cord, 1 cm from the middle of the spinal cord.
(v) 6.5 cm below the nipple on the left chest in an area of 6 x 7 cm. Chest was sunken.
(vi) Stitched wound (one stitch) 2 cm on the left forearm, 8 cm below the elbow. After opening stitch, it was 2 cm x 0.2 cm muscle deep.
(vii) Stitched wound (one stitch) 2 cm to the side of elbow. After opening stitch 2 cm x 0.3 cm bone deep.
(viii) Contusion 6 cm around the forearm. After opening the wound, both bones of below forearm were found fractured.
(ix) Stitched wound 5 cm on the front of right leg, 10 cm below the knee.
Internal Examination : Rear bone of the head was found fractured. Brain and membrane were congested. All the injuries were stitched ones thus no definite opinion could be given regarding weapon of assault, however, injury nos.2, 4, 5 and 8 could be caused by lathi-danda. The cause of death is excessive bleeding and on account of ante-mortem injuries and hemorrhage.
(II) Dr. Pradeep Kumar Singh (PW-8) penned down the autopsy report of Tarkeshwar Yadav (D-2) which shows that he has sustained five ante-mortem injuries over his person. They are :
Ante-Mortem Injuries :
(i) Stitched wound on the right side of head, 5 cm above the right ear.
(ii) Stitched wound 2 cm long, 21 cm above left knee.
(iii) Abrasion 2 cm x 1 cm on the joint of left ankle.
(iv) Abrasion 1.5 cm x 0.5 cm, 10 cm below the right knee in the middle.
(v) Lacerated wound having abrasion 3.5 cm x 3 cm on left palm of which second metacarpal bone found fractured.
External Examination : An average built body of young man a/a 30 years, having sign of rigor mortis, but no sign of any decaying.
Internal Examination : His Brain and right side of membrane blood was found coagulated in his brain. Right chamber of the heart was found empty. Cause of death was haematoma (injury no.1) resulting coma. Injury No.1 was sufficient to cause death. Rest of all the injuries were caused by hard and blunt object, could be Lathi/Danda.
12. As mentioned above, the Investigating Officer of the case, after holding threadbare investigation into the matter, recording the statements u/s 161 Cr.P.C. of as many as 21 witnesses, arrived at the conclusion that all the named accused persons are prima facie involved for committing the offence under sections 147, 148, 149, 308, 304, 325, 504, 506 I.P.C. and thus on 01.12.2006 the report under section 173(2) Cr.P.C. was submitted before the learned Magistrate concerned. Since the offence is exclusively triable by the court of sessions and as such, the Magistrate committed the matter for consideration before competent sessions court i.e. III-Additional Sessions Judge, Ballia as Session Trial No.42 of 2007 in re : State of U.P. vs Chandresh Yadav and others.
13. Relying upon the material collected by the Investigating Officer during investigation and after hearing the contesting parties on the point of "charge", learned trial Judge on 11.07.2007 framed charge against all the eight accused persons u/s 147, 148, 302 read with 149, 504, 506(2) I.P.C.
Accused persons pleaded not guilty and claimed to be tried.
14. Prosecution in order to establish their case and story against named accused persons, have produced (a) Rajan Yadav (PW-1 informant), (b) Ganga Dayal Yadav (PW-2 eye-witness), (c) Dr. B. Narayan (PW-3 the doctor who treated the injured persons at threshold stage), (e) Constable Rajdeo Yadav (PW-4, prepared Chik FIR), (f) Dr. J.P. Yadav (PW-5-the doctor, who prepared postmortem report of Ram Badan Yadav), (g) Akhilesh Yadav (PW-6, the Sub Inspector prepared the inquest of Tarkeshwar Yadav on 10.10.2006), (h) Shri Atma Yadav (PW-7, the Investigating Officer of the case), (i) Dr. Pradeep Kumar Singh-the doctor who conducted the postmortem of Tarkeshwar Yadav on 10.10.2006) and (j) Shri Ram Manorath Rai (PW-9-proved the inquest report of Ram Badan Yadav.
15. At the end, all the accused in their respective statements u/s 313 Cr.P.C. have denied the prosecution story, its genesis, supporting documents and witnesses and stated that they were falsely implicated on the ground of previous animosity between them. In no uncertain terms, they have challenged the very presence of both the witnesses of fact and the story spun by them implicating all the named accused. In their respective testimonies, they have seriously challenged the place of occurrence, the way and manner of assault, their own identification by the prosecution and lastly submitted that entire prosecution story is figment of imagination in which all the accused were falsely roped in.
16. Learned Sessions Judge concerned, after scrutinizing all the documents, testimonies of witnesses and hearing the submissions of rival parties, reached to the conclusion that the accused-appellants were guilty for the offence and as such, by impugned judgement he convicted all the named accused persons.
17. Shri Kamal Krishna, learned senior counsel assailed the impugned judgement primarily on two scores namely, (i) unexplained delay in lodging the FIR and (ii) major and material shift and embellishments in the testimonies of PW-1 and PW-2, who are witnesses of fact, resultantly touching the core issue i.e. factum of the assault by the accused persons. Learned senior counsel has tossed number of factual as well as legal issues, questioning the authenticity of the depositions made by prosecution witnesses, especially of the fact, which are allegedly full of material contradictions and embellishments, causing serious dents to prosecution story and the involvement of accused-appellants in the commission of offence.
Let us examine these heads canvassed by learned Senior Counsel one by one :-
18. DELAY IN FIR : - It is contended by the learned senior counsel for the appellant that according to the prosecution story unfortunate incident took place during intervening night of 4/5.10.2006 around 1.00 a.m. but its FIR was got registered on 06.10.2006 at 7.35 a.m. at Police Station-Reoti, District-Ballia. From the Chik FIR it is clear that the distance between the place of occurrence and the police station is barely 10 kms. It is argued by the learned senior counsel that no plausible explanation is coming forth explaining this inordinate delay, which puts a great cloud of doubts over the prosecution story.
19. The Court has got an opportunity to assess and examine the testimony of Rajan Yadav (PW-1) and Ganga Dayal Yadav (PW-2), who are "witnesses of fact". In examination-in-chief, P.W.-1 Rajan Yadav stated that he along with his brothers D-1 and D-2 was sleeping in Dera and after hearing certain unusual cries, he saw the named accused persons armed with lathi, danda, gandasa and country made pistol, were indiscriminately and mercilessly assaulting upon his brothers. He further states in his deposition that Rama Shankar Yadav and Bira Yadav were carrying gandasa, whereas Yogendra was having katta (country made pistol) in his hand and rest of the accused-appellants were carrying lathi-danda, and were assaulting by their respective weapons upon his brothers Ram Badan Yadav (D-1) and Tarkeshwar Yadav (D-2). He claimed to have identified these assailants in the moonlight. In the entire examination-in-chief, there was not a whisper explaining this delay in lodging of the F.I.R. His cross-examination was conducted on 18.9.2008 17.10.2008 and 05.11.2008. In his cross-examination dated 05.11.2008, Rajan Yadav (PW-1) submits that :
"vLirky ls Fkkuk ,d Ms<+ fdyksehVj dh nwjh ij gSA ?kk;yksa dh eS Fkkuk jsorh ls gksrs gq, vk;k FkkA jsorh Fkkuk ij njksxk th feys FksA njksxk th dks eSus mlh le; crk fn;k Fkk fd esjs Hkkb;ksa dks fdl&2 us fdu&2 gfFk;kjksa ls ekjk vkt [kqn dgk fd eSus njksxk th dks ;g ckrsa fnukad 06-10-06 dks crk;k FkkA njksxk th dks esjs Hkkb;ksa dks fdlus&2 ekjk ?kk;yksa dks cfy;k ykrs le; blfy, ugh crk;k fd eS ml le; fn;kjs es FkkA 5-10-06 dks eSus 8 cts lqcg tkdj njksxk th dks lkjh ckrs crk fn;k FkkA eSus fjiksVZ fxjh'k yky feJk ls fy[kok;k FkkA"
From the above testimony, it is clear that though he met with the concerned Daroga at the police station on 5.10.2006, still he did not bother to lodge any FIR and it took another 24 hours to weave, cook and narrate the story by means of the FIR.
20. Another prosecution witness of fact is Ganga Dayal Yadav (PW-2), who is the real uncle of the deceased and whose statement u/s 161 Cr.P.C. was recorded after 15 days of the incident, who claims to be an eye-witness of the incident. In his cross-examination dated 20.11.2008, he stated that they are in inimical terms with the accused from earlier point of time. He further states in his cross-examination that :
" rhu ?kaVs rd et:c ?kVuk LFky ij gh jgsA mlds ckn ge yksx ?kk;yksa dks ysdj jsorh pysA jsorh ge yksx yxHkx 8 cts fnu esa igqapsA igys ge yksx ?kk;y dks ydj Fkkus ij x;sA njksxk th ls ge yksxksa dh HksaV gqbZA njksxk th dks ge yksxksa us crk fn;k Fkk fd jke cnu o rkjds'oj dks fdlus&2 ekjkA njksxk th us ?kk;yksa dks ns[kkA vkSj dgk fd vLirky ys tkvksA ?kk;yksa ls dqN Hkh ugh iwNk D;ksafd ?kk;y csgks'k FksA ?kk;yksa dh vLirky es ejge iV~Vh jsorh vLirky esa gqvkA eSus MkDVj lkgc ;k fdlh dks ugh crk;k fd eqfYteku us ?kk;yksa dks ekjk FkkA eS ogWk ls vius ?kj pyk vk;kA cfy;k eSa ugh x;k FkkA "
21. On a close and keen analysis of aforesaid cross-examination of P.W.-2, Ganga Dayal Yadav, who is the real uncle of the deceased, his conduct is explicitly clear. He submits in his deposition that they waited with injured till dawn of 5.10.2006. They reached to C.H.C. Reoti at 8 AM via police station, Reoti. He shared all the information with the police and name of assailants but did not bother to lodge a formal F.I.R. It seems to be a clandestine afterthought story at this juncture. He claims to be an eye-witness but has not divulged the name of assailants to the doctor or provided any clue to the doctor about the incident and after providing the first aid to the injured persons at CHC Reoti, he astoundingly returned to his residence calmly. It is strange and surprising that out of the aforesaid two eye-witnesses, one is the real brother and another is the real uncle of the deceased persons. The conduct of the aforementioned self-claimed eye-witnesses speaks ocean and need not to be explained any further.
22. From the above analysis of testimonies of both aforementioned witnesses, their conduct and action is loud and clear and on that score the possibility of false implication of the accused persons cannot be ruled out. When they admit that they were inimical in terms, then despite having opportunity to lodge prompt FIR, they decided to wait for almost 30 hours to get the FIR registered, the inordinate delay shambles confidence of the Court in the prosecution story, which attributes serious dent to their testimonies.
23. The inordinate delay in lodging the F.I.R. raises serious eyebrows to the authenticity and veracity of the prosecution story. This inordinate and unexplained delay of more than 30 hours is insidiously used by the informant in concocting the false prosecution story after taking assistance of his fellow persons, else there was no occasion or reason not to lodge an FIR promptly, that too, when they themselves were present within the premise of police station along with injured, sharing all the information and the name of the assailants to concerned police personnel. We are at loss to bridge this yawning gap. Both the eye-witnesses, who are in blood relations of the deceased, were present along with the injured, could have lodged the FIR on 5.10.2006 itself but without any plausible justification or reason they exhausted 30 good hours to lodge the F.I.R. and ultimately got it lodged on 06.10.2006 at 7.35 AM.
24. The issue whether the prosecution story can be discarded or disbelieved merely on the ground of there being inordinate delay in lodging the FIR is no longer res integra and stands settled by catena of judgements by Hon'ble Apex Court as well as this Court. It would be, in our view, proper to analyze the case law on this point and issue.
25. Learned senior counsel has contended that in a given circumstances, the inordinate delay in lodging the FIR is fatal and relied upon the judgement of Hon'ble Apex Court in the case of Thulia Kali vs State of Tamil Nadu, AIR 1973 SC 501. In para 12 of said judgement Hon'ble Supreme Court has observed thus :
"12. .................... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the stand point of the accused: The object of insisting upon prompt lodging of the report to the police in respect of 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 part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first in- formation report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. ........................... The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it."
26. Similarly in the case of Apren Joseph alias Current Kunjukunju and others v. State of Kerala, AIR 1973 SC 1, the Hon'ble Apex Court has observed as hereinunder :-
"Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
27. Further, similarly relevant extract of the judgement delivered by Hon'ble Apex Court in the case of Ravinder Kumar and another vs State of Punjab, 2001 (43) ACC 755 (SC) is reproduced herein below :
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs. State of UP; Tara Singh vs. State of Punjab; Jamna vs. State of U.P. In Tara Singh (Supra) the Court made the following observations:
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
28. The Hon'ble Apex Court in Tara Singh and others vs. State of Punjab, 1991 (28) ACC 93 (SC) has held as under :
"4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the" report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned Counsel that the entire case should be thrown out on the mere ground there was some delay in the FIR reaching the local Magistrate. In the report given by P.W.2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 P.M. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 A.M. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross- examination. There are no material contradictions or omissions which in any manner throw a doubt on their varasity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. Though we are unable to fully agree with this finding but since there is no appeal against their acquittal we need not further proceed to consider the legality or propriety of the findings of the High Court in acquitting them. So far as the appellants are concerned, the evidence against them is cogent and convincing and specific over tacts arc attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed."
29. In the case of Himanchal Pradesh vs. Gian Chand, 2001 (43) ACC 200 (SC) the Hon'ble Apex Court has reiterated as under :
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
30. Last but not the least, the principles of law laid down in the case of State of Andhra Pradesh vs. M. Madhusudhan Rao, 2008 (15) SCC 582, are worth to be considered wherein the Hon'ble Apex Court has observed as under :-
"30. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained."
31. As mentioned above that at no stage either of the prosecution witnesses have ever tried to give any plausible or satisfactory reason for not lodging the FIR for more than 30 hours that too when the police station was barely 10 kms. far from the place of occurrence. Top of it, as per the testimony of P.W.-2, when they themselves passed through the concerned police station, they have more reasons to explain their astonishing conduct for not lodging the FIR when they themselves are inside the police station. In a recent judgement in the case of P. Rajagopal vs State of Tamil Nadu, 2019 (V) SCC 403, Hon'ble Apex Court has made the following observation :
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."
32. Thus, weighing the facts of the present case where the FIR is delayed by more than 30 hours without any plausible justification in the light of above judgements/observations of Hon'ble Apex Court in this regard, we are of the considered opinion that it is highly risky to rely upon the prosecution story and the alleged involvement of named accused. The Court has to take the prosecution story with a pinch of salt and assess the other attending circumstances floated by the prosecution. Now, let us examine those legal issues one by one.
33. In addition to the above assertions, Mr. Kamal Krishna, learned Senior Counsel, while fortifying his arguments, has floated another issue for our consideration. Learned counsel for the appellants has tried to impress upon the Court that Rajan Yadav (Informant-PW 1) was a total stranger to the incident. He has not witnessed the incident, as asserted by him in his deposition, therefore, his presence over the place of occurrence at the relevant point of time, is highly doubtful. In order to hammer his point, learned counsel for the appellants has brought to the notice of the Court certain yawing discrepancies, embellishments and contradictions in the depositions of P.W.-1 and P.W.-2, who claimed themselves as witnesses of fact, viz-a-viz the testimonies of doctor, who medically treated the injured persons and thereafter prepared their autopsy report. We have carefully perused the record of the appeals and it was indeed interesting to appreciate the argument advanced by learned counsel in this regard.
34. To start with the text of FIR Shri Rajan Yadav (PW-1 Informant) in the FIR has not even whispered that he witnessed the incident by his own ocular senses. He states that he was sleeping in the DERA with his brothers (deceased persons) on the fateful night, though, he allegedly claims to have identified the assailants in the moonlight. All the named assailants, armed with lathi, danda and Gandasa, assaulted by their respective weapons upon his brothers and made them seriously injured/ unconscious. It is indeed strange and amusing that these assailants left the informant unscratched, to become informant and sole ocular witness of the entire transaction, if at all his claim/presence over the site is acceptable.
35. Sensing this blunder, the PW-1 Rajan Yadav in his examination-in-chief categorically stated that he along with his brothers (deceased) was sleeping in DERA at the relevant time and place of occurrence but as mentioned above as he was unscratched in this transaction, then in his cross-examination dated 5.11.2008 changed his place of sleeping to that of scaffolding (MACHAN) in the piegonpea (Arhar) field. He again twisted his version by stating that he witnessed the entire incident, while hiding himself in piegonpea field, plants of which were six feet tall. Though the Investigating Officer of the case, examined as PW-7, has not shown any scaffolding in the site plan prepared by him during investigation. Not only this, the Investigating Officer Shri Atma Yadav (PW-7) in his deposition stated that only the deceased were sleeping over cots. In his deposition the said officer has categorically discounted the presence of informant Rajan Yadav from the place of occurrence i.e. the encampment (DERA). Thus, from the above worthy discussions, it is abundantly and explicitly clear that the presence of informant Rajan Yadav (PW-1) over the place of occurrence is highly doubtful.
36. In addition to the above, it is also pointed out by learned counsel that during investigation and after the demise of Ram Badan Yadav (D-1) on 5.10.2006, his inquest was prepared on 6.10.2006 at 11.00 A.M. Shri R. N. Pandey, prepared the inquest report after collecting five persons, namely, Chandreshwar Yadav, Heera Lal Yadav, Bachcha Lal Yadav, Dhaneshwar Yadav and Rajan Yadav. Out of these five persons, three of them claimed to be eye-witnesses of the incident. But in the opinion column of the inquest report it has been mentioned that all the witnesses in no uncertain terms stated "THAT DURING INTERVENING NIGHT OF 4/5.10.2006 AT THE BANK OF RIVER WHILE SLEEPING, SOME UNKNOWN MISCREANTS ARRIVED AND BRUTALLY ASSAULTED AND MADE THEM SERIOUSLY INJURED. ON ACCOUNT OF THOSE INJURIES, RAM BADAN LOST HIS LIFE." Interestingly, this is the unequivocal opinion of the three eye-witnesses including Rajan Yadav, informant, Dhaneshwar Yadav and Bachcha Lal Yadav to the police as 'PANCHS' but on the same day the said Rajan Yadav (informant) in the FIR spelled out the names of all the eight accused persons with all the material particulars and weapon used by them. This conduct on the part of first informant Rajan Yadav casts serious doubt about the authenticity and genuineness of prosecution story and under the circumstances possibility of fake implication of the named accused persons cannot be ruled out.
37. In the FIR, the informant stated that all the named accused were armed with lathi-danda and gandasa and assaulted by their respective weapons of assault over his brothers (deceased persons), consequently his brothers sustained serious and grievous injuries and became unconscious. In the first version i.e. FIR there was no specification as to which assailant was carrying which weapon? For the first time in his testimony, the first informant Rajan Yadav has disclosed that in the moonlight he witnessed that Chandresh Yadav, Ram Chandra @ Malik Yadav, Parasuram Yadav, Shriram Yadav, Joginder Yadav, Rama Shankar Yadav Rajan Yadav and Bira were carrying lathi-danda and gandasa and out of them Rama Shankar and Bira were carrying gandasa, Joginder was carrying Katta and rest of the accused were carrying lathi-danda in their hands. All of them in furtherance of common object assaulted by their respective weapons upon the deceased. PW-2 Ganga Dayal Yadav, the real uncle of the deceased, claims himself to be an eye-witness in his examination-in-chief and states that after hearing the screams and noises reached on spot with his torch along with Shri Kishun Yadav and seen, that Chandresh Yadav, Shriram, Parashuram and Rajan were assaulting by lathi on Ram Badan Yadav and Tarkeshwar while Rama Shankar and Bira were assaulting them by gandasa, however, Joginder was standing with his Katta (country-made pistol). While fleeing away, Joginder fired by his Katta causing injury to none. Thus, there is specific case of the prosecution that all of the accused persons assaulted by lathi-danda and accused Rama Shankar and Bira assaulted by gandasa.
38. It was pointed out by learned Senior Counsel that the prosecution case as made by P.W.-1 and P.W.-2 reduced to semblance, if their respective testimonies pitted against the depositions made by Dr. B. Narayan (PW-3), Dr. J.P. Pandey (PW-5) and Dr. Pradip Kumar Singh (PW-8), all these doctors have categorically opined in their respective testimonies that none of the deceased had received any gandasa blow over their persons, thus, there is no parallel or compatibility or corroboration in testimonies of witnesses with the medical opinion given by the doctors.
39. Per contra, Shri H.M.B. Sinha, learned Additional Government Advocate has vehemently refuted the arguments advanced by Shri Kamal Krishna, learned Senior counsel, and has submitted that the impugned order passed by learned trial judge does not suffer from any illegality, infirmity or perversity warranting any interference by the Court. He further submits that the prosecution version stood proved beyond all reasonable doubts on the basis of testimonies of witnesses of fact produced by the prosecution during the trial proving the charge framed against the appellants. The delay in lodging the FIR has been satisfactorily explained by the witnesses of fact in their respective testimonies and there is no force in the arguments advanced by learned senior counsel. The medical evidence on record fully corroborates the ocular testimonies, and despite embellishments and deviations is not going to change the texture of prosecution case. The recorded conviction of the appellants is based upon cogent evidence and the sentence of imprisonment for life awarded to them is also supported by relevant considerations. Hence, no interference in the impugned judgement and order is warranted.
40. To sum up the entire discussion made above, it is crystal clear that there is an inordinate and unexplained delay of more than 30 hours in lodging of the FIR by Rajay Yadav, brother of the deceased persons. He used this time in meeting and have active consultation to implicate the accused-appellants with whom they have inimical in terms. Else, there is no other reason for this delay, as they themselves admit that they had gone to C.H.C. Reoti, via police station and had an opportunity to lodge FORMAL FIR within reasonable time after the incident.
There is marked deviation and incompatibility in the testimonies of both the prosecution witnesses, though they claim to be an eye-witness to the incident. Not only this, it is impossible to draw any parallel between the testimonies of these prosecution witnesses qua the depositions made by the doctors as PW-3, PW-5 and PW-8. Every witness either of fact or formal going its own way and do not generate requisite confidence in the Court. Prosecution story and its supporting testimonies are going to haywire leading to utter stage of confusion.
41. For the reasons narrated hereinabove and critical analysis of them, we are of the considered opinion that recorded conviction of appellants and sentence of life imprisonment awarded to them by learned III-Additional Sessions Judge, Ballia while passing impugned judgement and order dated 25.01.2011 in Session Trial No.42 of 2007 In re : State of U.P. vs. Chandresh Yadav and 7 others, u/s 147, 148, 302 I.P.C. read with Sections 149, 504, 506 I.P.C., Police Station-Reoti, District-Ballia, is well short of required reasons and standard of proof and thus is liable to be set aside.
42. The appellants who are languishing in jail since 25.01.2011 shall be released forthwith, if not wanted any other case.
43. All the appeals succeed and are allowed.
Order Date : 26.2.2020 M. Kumar