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We will first take up Criminal Appeal Nos.1072-73 of 2003 for consideration which, as stated above, are the appeals filed by the convicted accused.

The facts necessary for the disposal of these appeals, briefly stated, are as follows :

It is the prosecution case that there was enmity between one of the deceased Abid Ali and A-3 Jaishree Yadav, A-5 Daddan Yadav in regard to the auction and recovery of Tehbazari of the area between village Tatil Tola and Nawalpur crossing. A-6 Ram Pratap Yadav bore an enmity against the deceased Abid Ali on account of a pending litigation relating to a land in village Tatil Tola. A-1 Hafiz Khairul Bashr was on inimical terms with the said deceased in relation to the fixation of an electric pole on the chowk road. It is also the prosecution case that on account of these enmities, these accused persons were waiting for an opportunity to eliminate said deceased Abid Ali. It is the further case of the prosecution that on 23.9.1993 at about 5.50 p.m. deceased Abid Ali had come from Deoria, his place of residence, in his private jeep and was sitting on a Takhat in front of Pervez Book Stores, north of Nawalpur crossing. At that moment, Raju @ Noor Alam (PW-6) who had a shop selling sand and clay, came to deceased Abid Ali and complained that A-3 Jaishree Yadav was raising a dispute with him (PW-6) in regard to Tehbazari money. It is also the prosecution case that PW-1 who was working as a teacher in a School at Salempur of which the deceased Abid Ali was the Manager, was then passing through the said place where the said deceased was sitting and seeing him PW-1 came to talk to the said deceased. This was at about 4.15 p.m. Prosecution also states that PW-3 Arif Ali, son of deceased Abid Ali, who was a resident of that village, was also present there at that time. It is the further case of the prosecution that at that time 8 persons including A-1 Hafiz Khairul Bashr, A-2 Jaheed, A-3 Jaishree Yadav, A-4 Manish Yadav, A-5 Daddan Yadav, A-6 Ram Pratap yadav and two other unidentified persons came armed to that place. Amongst them, A-1 and A-2 and the unidentified persons were having country-made pistols (katta), A-3 and A-4 were carrying bombs and bags in their hands; A-5 and A-6 were carrying a knife and an iron 'Dav' respectively. Prosecution further alleges that A-3 Jaishree Yadav questioned PW-6 as to the propriety of his complaint to deceased Abid Ali. Other accused questioned the authority of deceased Abid Ali to meddle in a dispute between them and PW-6. It is stated the deceased Abid Ali warned them by asking them to have control over their language. At this stage the prosecution alleges A-1 exhorted the other accused to kill Abid Ali. Pursuant to the same, A-3 and A-4 hurled bombs at Abid Ali because of which Abid Ali received injuries and started running northwards to save himself. Prosecution then alleges that all the accused persons chased the deceased Abid Ali, hurling bombs and firing pistol shots at him and in this process when Abid Ali reached 'Palani', of one Idris, one Mahmood Shah (deceased No.2), a resident of the same village, tried to intervene, hence, the accused hurled bombs and fired pistol shots at Abid Ali and Mahmood Shah in front of the shop of one Ram Nakshatra consequent to which both Abid Ali and Mahmood Shah succumbed to their injuries on the spot. During the first attack on Abid Ali when he was sitting on the Takhat, PW-1 who was nearby also suffered an injury on his shoulder. Prosecution also alleges that there was a young boy who was also sitting on the Takhat with deceased Abid Ali who also suffered some injuries. PW-3 who was nearby ran after his father but he was not attacked by the assailants. The assailants after causing fatal injuries to Abid Ali and Mahmood Shah ran away from the place of incident shouting at and threatening the witnesses. PW- 3 who is an eye-witness to the incident, then went to Salempur Police Station which is stated to be about 3-4 kms. away from the place of incident with a written complaint scribed by his brother-in-law and gave the same to PW-8 Ram Shiromani Pandey who was the officer-in-charge of the Police Station who registered a case at about 5.30 p.m. on 23.9.1993 and proceeded to the place of incident with his staff. There he recorded the statements of some witnesses and conducted the spot Panchnama, inquest Panchnama of the dead body and recovered certain empty cartridges, splinters of the bomb and one live bomb found at the place. It is relevant to note herein that before leaving for the place of the incident, PW-8 had sent a special report to the Jurisdictional Magistrate through a Constable in his Police Station to Deoria which is about 25-27 kms. from Salempur. During the course of his visit to the spot and preparation of the Panchnamas it is stated that senior officers on coming to know of the double murder case through radio transmitters, reached the spot. PW-8 after completing the inquest sent the dead bodies to Deoria along with Police Constable Durga Prasad PW-7 in a jeep around mid-night of 23/24.9.1993. It is stated that in view of the fact that on the way the said jeep developed mechanical problems and the same could be repaired only in the early hours of 24.9.1993, he handed over the bodies at about 10 a.m. to PW-4 Dr. V.D. Srivastava who conducted the post mortem on the dead bodies of Abid Ali and Mahmood Shah on 24.9.1993 at 10.30 a.m. and 12.15 p.m. respectively. He noticed 11 injuries on different parts of Abid Ali's body with corresponding internal injuries. In the opinion of PW-4 death of Abid Ali was due to shock and haemorrhage as a result of ante-mortem injuries.

Shri Sushil Kumar, learned senior counsel appearing for the appellants contended that the prosecution case ought not to have been accepted by the courts below because of the serious infirmity found in the investigation as also possible doubt as to the presence of the eye-witnesses produced by the prosecution at the trial. He submitted that though the prosecution has alleged that the complaint of the incident in question was lodged at Salempur Police Station at 5.30 p.m., the same cannot be believed for more than one reason and according to him the FIR is a product of deliberation and is anti-timed. Elaborating this contention, he submitted that the special report in regard to the incident in question reached the Jurisdictional Magistrate at Deoria only on 24.9.1993 and the actual time of receipt of this special report has not been noted by the Jurisdictional Magistrate. It is his contention that if really the FIR had come into existence as stated by the prosecution and the complete details of the case and the facts as found in the complaint and in the inquest report would have been sent to the doctor who was to conduct post mortem but what in fact was sent along with the dead body and the requisition for post mortem was not really the true copy of the inquest report and the complaint. He further submitted the fact that the dead body was delivered to the doctor of Deoria at about 10 O'clock in the morning on 24.9.1993 which also indicates the fact that the incident in question must have come to the knowledge of the police very late in the evening of 23.9.1993, hence, a detailed FIR implicating the accused was prepared in deliberation with PW-3, the son of the deceased Abid Ali much later than 5.30 P.M.. He also pointed out that it has come on record that when radio transmission messages were sent to the superior officers, names of all accused were not mentioned obviously because same was not known to the Investigating Officer at that time. From the material on record, he pointed out that there were good reasons for PW-3 to implicate the appellants, hence, deceased being a prominent person the accused who were admittedly inimical towards him were falsely implicated.

It is the case of the prosecution that PW-3 Arif Ali who is a resident of village Nawalpur within the limits of Salempur Police Station came to the said police station on 23.9.1993 at 5.30 p.m. and gave a written report Ext.Ka-2 to PW-8 the Officer-in-Charge of the said police station. According to PW-8, he registered a crime based on the said complaint of PW-3 at 5.50 p.m. on the same day, which has been proved by the production of the general diary of the police station Ex.Ka-8. He also submitted that he sent a special report to the Jurisdiction Magistrate on 23.9.1993 at about 7 p.m. through Constable Dheeraj. He further stated that from the entry in the general diary, it is seen that Constable Dheeraj reported back to the police station at about 8 a.m. on 24.9.1993 . He has denied that the special report was not sent on 23.9.1993. A perusal of the entry made by the Chief Judicial Magistrate, Deoria in the special report shows that the same was received by him on 24.9.1993 but the actual time of the report is not noted in the said entry, however it is clear that the said report was received by him at his residence. Based on this the learned counsel for the appellants had argued that it is possible that this report might have reached later in the day on 24.9.1993, but this argument is not supported by any material on record. On the contrary from the entry made in the general diary of the police station, it is clear that Constable Dheeraj who was entrusted with the job of delivering the special report to the Magistrate had returned back to duty at Salempur Police Station at 8 O'clock on 24.9.1993. Bearing in mind that the distance between Salempur Police Station and Deoria is about 28 to 29 kms. as seen from the records it is clear that the special report has reached the Jurisdiction Magistrate much earlier than 8 O'clock in the morning of 24.9.1993. Though it would have been more appropriate and less controversial if only the concerned Magistrate had noted the actual time of receipt of the special report, still on facts and circumstances of this case as stated above, we are of the opinion that the special report must have reached the Jurisdictional Magistrate much earlier than 8 a.m. Since by then the constable who carried the report had come back to Salempur on 24.9.1993 which fits in with the prosecution case that the same was sent from the police station in the evening of 23.9.1993 at about 7 p.m. So on this count, it cannot be said that the FIR is anti timed.

Another argument addressed on behalf of the appellants to be noticed is that there was considerable delay in sending the dead bodies for post mortem. According to the learned counsel, though a complaint in regard to the incident in question was lodged at about 5.30 p.m., the dead bodies reached the hospital at Deoria only at about 9.30 a.m. on 24.9.1993, therefore, this also indicates that the complaint in question had not been lodged, as alleged by the prosecution. It is true that the dead bodies reached the hospital at Deoria only at about 9.30 a.m. the next day but from the evidence of PW-8, the Investigating Officer, it is clear that he despatched the dead bodies to the hospital between 11 and 12 in the night of the incident through PW-7, Constable Durga Prasad, who took the dead bodies in jeeps but because of the fact that one of the jeeps broke down on the way at a distance of about 13-14 kms. from Salempur, hence, they were not able to proceed further that night until the jeeps were repaired in the morning. In this situation, the bodies reached the hospital only at about 9.30 a.m. In our opinion, the explanation given by PW-7 in regard to the delay in delivery of the dead bodies for post mortem cannot be rejected. Therefore, the contention that the delay in delivering the dead bodies indicates that the First Information Report was anti-timed, cannot be accepted.