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2016 DIGILAW 4118 (ALL)

Sobran (in jail) v. State of U. P.

2016-12-20

KRISHNA PRATAP SINGH, NARAYAN SHUKLA

body2016
JUDGMENT Krishna Pratap Singh, J. Heard Sri Dalvir Singh, learned counsel for the appellant and learned A.G.A. for the State. This appeal has been preferred against judgment and order dated 23.10.2007 passed by Special Judge, DDA/Additional Sessions Judge, Court No. 5 Etah in Sessions Trial No. 112-A of 2001 arising out of case crime No. 22 of 1996, P.S. Raja Ka Rampur, District Etah, whereby the appellant Sobran has been convicted and sentenced under Section 396 IPC to suffer imprisonment for life and to pay fine of Rs. 10,000/-, in default to undergo imprisonment for additional one year. Briefly the facts of the case are as follows: - Raj Shekhar (PW-1) is son of deceased Dr. Jagat Pal and co-accused as well as informant Ram Ratan is brother of the deceased. Injured witness Smt. Vimla Devi (PW-2) is wife of Udaivir Singh who had sustained injuries during the commission of dacoity. Deceased Jagat Pal was the father-in-law of Smt. Vimla Devi, Raj Shekhar (PW-1), Smt. Vimla Devi (PW-2), Dr. K.P. Garg (PW-3), Dr. A.K. Saxena (PW-4), Inspector Chandra Sen Gautam (PW-5), Investigating Officer Constable Rajvir Singh (PW-6), Constable Surendra Singh (PW-7), SI Ram Pal Gupta (PW-8), Investigating Officer Naresh Chandra Sharma (PW-9), Investigating Officer Mahesh Chandra (PW-10). Court has examined Constable Kukar Singh CW-1 for ascertaining death of accused Raj Kumar @ Basanto. These witnesses had proved documentary evidence of prosecution. Other facts of the case is that a written report (tehrir 5A) was moved by co-accused Ram Ratan in the police station Raja Ka Rampur at 7: 30 a.m. on 22.3.1996 alleging therein that in the intervening night of 21/22.3.1996 a dacoity has been committed in the house of his brother Jagat Pal and after this information at 6: 00 AM he reached there and he found the dead bodies of his brother Jagat Pal, his mother Smt. Ram Kali and Chandra Devi (Bhabhi) were lying there and there were signs of stabbing and injuries caused by blunt weapons and that Udaivir, wife of Udaivir namely Vimla Devi (PW-2), Raj Shekhar (PW-1) and son-in-law of Rameshwar were lying in injured condition. Said co-accused Ram Ratan has also stated in the tehrir that he was told by the wife of Udaivir namely Smt. Vimla (PW-2) that 8/10 miscreants armed with weapons have trespassed into her house and committed murders and robbery and licence gun, cash and jewelry was taken away by them. On this information, the FIR was registered vide FIR Ext. Ka 36 and entry was made in GD vide entry no. 12 Ext. Ka-37. The police including PW-5 SI Chandra Sen Gautam have reached at the spot. According to the statement of Raj Shekhar (PW-1) and Smt. Vimla Devi (PW-2) there was some dispute over the land and partition between deceased Jagat Pal and some of the co-accused persons. On 21.3.1996, deceased Jagat Pal has told his family members that he was feeling danger to his life as Raj Kumar, Ram Ratan and Arvind have threatened to kill him. In the night of 21.3.1996 when the deceased Jagat Pal and other members of his family including the two deceased persons were sleeping in their house situated at Raja Ka Rampur the son of Dr. Jagat Pal (deceased) namely Raj Shekhar (PW-1) after hearing some noise from the roof of their house woke up and saw that accused Sobran alongwith Gajraj, Top Singh, Girish, Ram Niwas have trespassed into the 'baithak'. Some of these persons were having iron pipes. Following these persons, Arvind, Raj Kumar, Ram Ratan, Dr. Abhay Pal and Rajeev @ Pappu have also trespassed in the 'baithak'. These persons were having knives while Girish, Arvind, Ram Niwas and Ram Ratan were having guns. All these persons forcibly took the son of the deceased Jagat Pal namely Udaivir from his room and brought him to the baithak. Following Udaivir, Smt. Vimla Devi (PW-2) also reached there. The accused persons threatened the family members of the deceased persons and started attacking them with pipes and knives. Some of them kept pressed the mouth of some of the family members of the deceased persons so that they could not cry. As a result of the attack by the accused and his companions, Jagat Pal (deceased), son-in-law of Rameshwar namely Devendra, Raj Shekhar (PW-1), his brother and 'Bhabhi' have sustained injuries. Some of them kept pressed the mouth of some of the family members of the deceased persons so that they could not cry. As a result of the attack by the accused and his companions, Jagat Pal (deceased), son-in-law of Rameshwar namely Devendra, Raj Shekhar (PW-1), his brother and 'Bhabhi' have sustained injuries. The accused and his companions also reached in the courtyard of the house and there they attacked mother of the deceased Jagat Pal namely Smt. Ram Kali and his wife Chanda Devi. After attacking these persons, the accused persons committed dacoity in the house of the deceased persons and robbed licenced gun of the deceased Jagat Pal/father of PW-1 Raj Shekhar, jewelry and cash from the house. It was alleged that the accused and his companions were uttering that they were doing it as a lesson to Dr. Jagat Pal (deceased) as he was not ready for partition. Raj Shekhar (PW-1) and some other family members have become unconscious. Due to attack of the accused Sobran and co-accused persons in the incident Dr. Jagat Pal, his mother Smt. Ram Kali and wife Chanda Devi succumbed to their injuries. Udaivir, his wife Vimla Devi (PW-2), Raj Shekhar (PW-1) and the son-in-law of Rameshwar have sustained injuries. In the morning of the incident, many villagers have assembled there and the injured were taken to hospital. The co-accused Ram Ratan, who is brother of the deceased Jagat Pal, reported the matter to the police and has filed tehrir document 5-A, on the basis of which, this case was registered against unknown persons. The police reached at the spot. The investigation was taken up by SO, Sri Chandra Sen Gautam/PW-5. The Investigating Officer entered the contents of the FIR and GD entry in the case diary and recorded statement of the scriber of the FIR. After reaching at the spot the police came to know that injured Udaivir, Raju @ Raj Shekhar, wife of Udaivir namely Vimla Devi (PW-2) and son-in-law of Rameshwar namely Devendra was also sent to the hospital for treatment. At that time, Smt. Ram Kali was being taken to the hospital but she succumbed to her injuires. Blood stained dead body of Dr. Jagat Pal was lying in the house. The dead body of Chanda Devi was also lying there on a cot in the house. The household articles were lying scattered. Two minor children Km. At that time, Smt. Ram Kali was being taken to the hospital but she succumbed to her injuires. Blood stained dead body of Dr. Jagat Pal was lying in the house. The dead body of Chanda Devi was also lying there on a cot in the house. The household articles were lying scattered. Two minor children Km. Neha and Ashish were lying unconscious. These children were also sent for medical treatment. The panchayatnamas of the dead bodies were prepared and the dead bodies were sealed. The panchayatnama of the dead body of Ram Kali was prepared vide Ext. Ka-9 while other connected documents like reports, letter to CMO, challan lash, photo lash, report for post mortem etc. were prepared vide Ext. Ka-10 to Ka-14. The panchayatnama of the dead body of Chanda Devi was prepared vide Ext. Ka-15 and the other related documents like application for post mortem, challan lash, photo lash etc. were prepared vide Exts. Ka 16 to Ka 18. The blood stained bedding clothes of deceased Smt. Chanda Devi like pillow, mattress and 'Baan' of the cot were taken into possession vide memo Ext. Ka 19. The panchayatnama of the dead body of Jagat Pal was prepared vide Ext. Ka-20 and the other related documents like challan lash, letter to CMO, application for post mortem, photo lash etc. were prepared vide Ext. Ka-21 to Ka-23. The blood stained clothes of the deceased Jagat Pal were taken into possession vide memo Ext. Ka-24. The dead bodies were sent for post mortem. The Investigating Officer has also inspected the spot and has prepared the site plan Ext. Ka-25. The blood stained bedding clothes of the deceased Ram Kali were also taken into possession vide memo Ext. Ka-26. Similarly the blood stained bedding clothes of injured Raju were taken into police possession vide memo Ext. Ka-27. The blood stained bedding clothes of injured Arvind vide Ext. Ka-28. The blood stained as well as simple sample from the wall were taken into possession vide memo Ext. Ka-29. The bedding clothes of injured Vimla were taken into police possession vide Ext. Ka-30. Similarly bedding clothes of injured Udaivir were taken into police possession vide Ext. Ka-31. From near the cot of Udaivir, the sample of blood stained as well as simple earth were taken into possession vide memo Ext. Ka-32. Statement of one Ved Prakash was recorded. Ka-29. The bedding clothes of injured Vimla were taken into police possession vide Ext. Ka-30. Similarly bedding clothes of injured Udaivir were taken into police possession vide Ext. Ka-31. From near the cot of Udaivir, the sample of blood stained as well as simple earth were taken into possession vide memo Ext. Ka-32. Statement of one Ved Prakash was recorded. One broken pipe was found at the spot which was taken into possession vide memo Ext. Ka-33. The Investigating Officer has also recorded statements of other persons. Some household articles were found at the chakroad and the same were seized and were given in supurdari vide memo Ext. Ka- 34. The site plan of the place of recovery was prepared vide Ext. Ka-35. Later on the Investigating Officer has recorded the statements of other witnesses and has conducted further investigation. After completion of investigation, accused Sobran alongwith co-accused Dr. Abhay Pal and Top Singh were charge-sheeted for the offence under Section 396 IPC vide chargesheet Ext. Ka-38. It appears that accused Raj Kumar, Rajeev @ Pappu, Gajraj, Girish, Birish, Ram Ratan and Arvind were charge-sheeted vide separate charge-sheet and accused Vinod was charge-sheeted by another separate charge-sheet for the offence under Section 396 IPC. After filing of the chargesheet, the Court took the cognizance. Later on the accused Sobran and co-accused Dr. Abhay Pal, Top Singh and Vinod were charged for the offence under Section 396 IPC vide order and charge dated 3.12.2002. The accused persons pleaded not guilty and claimed trial. To prove its case, the prosecution has examined ten witnesses. Raj Shekhar (PW-1) is son of deceased Jagat Pal and he has also sustained the injuries in the incident. He has deposed about the incident. Similarly, Smt. Vimla Devi (PW-2) is wife of Udaivir who has also sustained injuries in the incident. She has also deposed about the incident. Dr. K.P. Garg (PW-3) has conducted post mortem of the dead body of deceased Jagat Pal, Smt. Ram Kali and Smt. Chanda Devi. Dr. A.K. Saxena (PW-4) has medically examined the injured persons. SI Chandra Sen Gautam (PW-5) has conducted the investigation. Constable Rajvir Singh (PW-6) has accompanied the police party to the spot and thereafter has taken the injured Neha and Ashish to the hospital for treatment. Constable Surendra Singh (PW-7) has taken the sealed dead bodies of deceased persons to Etah for post mortem. SI Chandra Sen Gautam (PW-5) has conducted the investigation. Constable Rajvir Singh (PW-6) has accompanied the police party to the spot and thereafter has taken the injured Neha and Ashish to the hospital for treatment. Constable Surendra Singh (PW-7) has taken the sealed dead bodies of deceased persons to Etah for post mortem. SI Ram Pal Gupta (PW-8) has registered the case on the basis of tehrir of the complainant and has also made entry in the General Diary. Naresh Chandra Sharma (PW-9) has conducted further investigation of this case. Inspector Mahesh Chandra (PW 10) has also conducted further investigation. The accused was examined under Section 313 Cr.P.C., wherein the accused has denied the prosecution version and has stated that he has been falsely implicated due to enmity. However, the accused has not adduced any evidence in defence. In the present case, the record indicates that accused Sobran had been facing the trial alongwith co-accused Dr. Abhay Pal, Vinod and Top Singh vide SST No. 112/2001, but it appears that during trial he has absconded and his file was separated vide SST No. 112A/01 in accordance with the order dated 1.3.2005. Thereafter the accused had surrendered and was sent to jail. It appears that the co-accused persons have already been convicted vide order/judgment dated 27.10.06 in SST No. 112/01 and 118/02, it has been stated that the file SST No. 112/01 containing original documents has been summoned by the Hon'ble High Court in the criminal appeal. The attested copies of all the evidence and documents were kept in this file as per order of learned Trial Court. The record indicates that all the evidence has been recorded in the presence of the accused. However, it appears from the record that initially part Chief examination of PW-5 was recorded in the absence of the accused on 30.09.2005 but the rest of examination in chief was recorded in presence of the accused Sobran and learned counsel for the accused has cross-examined PW-5. Thus as the learned counsel for the accused Sobran has cross-examined PW-5 and the defence has not raised any plea regarding any prejudice, thus the evidence of PW-5 could be read against the accused Sobran. Thus as the learned counsel for the accused Sobran has cross-examined PW-5 and the defence has not raised any plea regarding any prejudice, thus the evidence of PW-5 could be read against the accused Sobran. However, the initial part examination-in-chief of PW-5 would not be taken into consideration in the present case while considering the case against accused Sobran, but the latter part which was recorded in presence of the accused would be read against accused Sobran. It may be pointed out that in the present file all the statements of PWs and copies of the documents are photocopies attested by copying department. The record indicates that as the original statements and documents have been sent in file of SST No. 112/01 to the Hon'ble High Court and as all these statements were recorded in presence of the accused and the documents were proved in presence of the accused and the learned counsel for the accused has cross-examined the witnesses thus these attested copies of the statements are admissible against the accused. Similarly, attested copies of the documents can also be relied against the accused. Even otherwise the accused has not taken any plea that the evidence on record cannot be read against him due to the reason that it is not the original statements or the documents. Raj Shekhar (PW-1), who is the son of the deceased Jagat Pal and was injured in the incident, has stated in his statement that on 21.03.96 his father Dr. Jagat Pal had returned back at around 4/5 p.m from village Agaunapur and told that he was feeling danger to his life as Raj Kumar, Ram Ratan and Arvind of the village have altercation over the issue of partition of land and as he has refused for the partition, the aforesaid three persons have threatened him to kill. Raj Shekhar (PW-1) has further stated that in the night of 21.3.1996, at around 9: 00 p.m Dr. Abhay Pal (co-accused) came at his house and made conversation with his father and he was asked to sleep there but Dr. Abhay Pal went from there at around 9: 00 a.m stating that he will stay at the house of his 'Saru' (husband of his wife's sister) Master Rameshwar. Raj Shekhar (PW-1) has stated that in night his father Dr. Abhay Pal went from there at around 9: 00 a.m stating that he will stay at the house of his 'Saru' (husband of his wife's sister) Master Rameshwar. Raj Shekhar (PW-1) has stated that in night his father Dr. Jagat Pal and son-in-law of Rameshwar namely Devendra were lying asleep in the room while his brother Udaivir and 'Bhabhi' Vimla Devi (PW-2) and their children Ashish and Neha were sleeping in the upper storey. Grand mother of Raj Shekhar (PW-1) namely Ram Kali and mother Chanda Devi were sleeping in the courtyard. The electricity was on. Around 1: 00 am in the said night he heard some rattle from the roof of his house and as a result he woke up. He saw that accused Sobran and co-accused Gajraj, Top Singh, Girish and Ram Niwas have trespassed into his house and they all were having iron pipes which were lying some fold from front side. Following these persons, Arvind, Raj Kumar, Ram Ratan, Dr. Abhay Pal and Rajeev @ Pappu also trespassed into the house. They were having knives in their hands while co-accused Girish, Arvind, Ram Niwas and Ram Ratan were having guns. All these persons forcibly took out his brother namely Udaivir from his room and brought him in the 'baithak'. Following him, his 'Bhabhi', Smt. Vimla Devi (PW-2) also reached there running. All these accused persons including accused Sobran and his companions threatened the deceased persons and PW 1 and their other family members and thereafter started attacking with pipes and knives. PW 1 has further stated that their mouths were being kept press so that they could not raise noise. The father of PW 1 namely Jagat Pal, son-in-law of Rameshwar namely Devendra and brother and 'Bhabhi' of PW1 have sustained injuries. These accused persons also attacked the mother of PW 1 as well as grand mother of PW-1. It was further stated by PW-1 that the accused persons have got smelt something to them. Accused Sobran alongwith other co-accused after considering that the victims were lying dead, started committing dacoity. The accused and his companions (co-accused persons) robbed licenced gun, jewellery and cash. PW 1 has further stated that while giving beating, the accused persons were saying that as Doctor (Dr. Jagat Pal) has refused for partition thus the lesson is being taught to him. The accused and his companions (co-accused persons) robbed licenced gun, jewellery and cash. PW 1 has further stated that while giving beating, the accused persons were saying that as Doctor (Dr. Jagat Pal) has refused for partition thus the lesson is being taught to him. PW 1 has further stated that in the morning hours neighhbours came and while PW 1 was having some consciousness he heard that his father Dr. Jagat Pal and mother Chanda Devi and grand mother Ram Kali have been murdered in the incident. Besides PW 1 stated that the children of his brother namely Neha and Ashish have also sustained injuries. PW 1 has further stated that co-accused Arvind, Dr. Abhay Pal, Raj Kumar and Ram Ratan are his uncle while Rajeev is his cousin. Co-accused Girish is son of his 'Bua' while Top Singh is nephew of his 'Phupha'. PW 1 has further stated that Ram Niwas also belongs to the family of Top Singh while Gajraj and the present accused Sobran have been living with co-accused Arvind. PW 1 has identified the co-accused persons. PW 1 has further stated that these accused persons have caused injuries to them. PW 1 has also stated that the reason behind the dacoity, murders and causing injuries was that his father has refused for partition in the 24 bighas land. PW 1 has further stated that the father of co-accused Arvind is Dr. Maha Deepak Shakya, who has been the M.P. of the Area several times. PW 1 has also stated that the report of the case was lodged by the co-accused Ram Ratan himself to mislead the police. Smt. Vimla Devi (PW-2) has stated in her statement that on 21.03.1996 her father-in-law has gone to Agaunapur after hearing the dispute of his brothers and has returned back from there at 4/5 pm. She has further stated that her father-in-law was feeling perturbed and had told that there was altercation with co-accused Arvind, Raj Kumar, Ram Ratan on the issue of 24 bighas land of Raja Ka Rampur and that they have threatened to kill him. She has further stated that at around 9: 00 pm accused Dr. Abhay Pal, had come at her house and had a talk in the 'baithak' with her father-in-law. But at around 10: 00 pm he had left from there stating that he would stay at the house of Rameshwar. She has further stated that at around 9: 00 pm accused Dr. Abhay Pal, had come at her house and had a talk in the 'baithak' with her father-in-law. But at around 10: 00 pm he had left from there stating that he would stay at the house of Rameshwar. Thereafter, all the family members have gone for sleeping. PW 2 has further stated that her husband was sleeping on the roof while her father-in-law, 'Dewar' Raju and son-in-law of Rameshwar namely Devendra Singh were sleeping in the 'baithak'. At around 1: 00 am, co-accused Arvind, Ram Ratan, Raj Kumar, Abhay Pal, and Girish trespassed into their room. They were having folded pipes of iron and knives in their hands. These co-accused persons trespassed into her room and started beating the husband of PW 2 and children. PW 2 has further stated that these accused persons have smelt some intoxicating material to the children and thereafter dragged her husband toward lower storey. PW 2 also ran behind her husband. There was light of electricity. She has further stated that these accused persons gave beatings to her husband and also severely beat her father-in-law, son-in-law of Rameshwar namely Devendra, Devar Raju and herself as well as to her mother-in-law and grand mother-in-law. She has further stated that besides these four co-accused persons Gajraj, Chob Singh, Ram Niwas, Saktoo and accused Sobran was also there. They were having iron pipes and knives in their hands while co-accused Girish, Ram Niwas, Ram Ratan and Arvind were having guns. All these accused persons gave severe beatings to her as well as to her family members and have also smelt some intoxicating substance to them due to which they became unconscious. In the morning hours, some people knocked the door and thereafter they got some consciousness and opened the door. Many persons of the village have come there. Her father-in-law, mother-in-law and grand mother-in-law were lying dead while her devar Raju son-in-law of Rameshwar namely Devendra and her children were lying in injured condition and were unconscious. The villagers took them to the hospital. Many persons of the village have come there. Her father-in-law, mother-in-law and grand mother-in-law were lying dead while her devar Raju son-in-law of Rameshwar namely Devendra and her children were lying in injured condition and were unconscious. The villagers took them to the hospital. She has further stated that her husband remained under treatment for many days and even during the treatment of her husband, the co-accused Girish who is nephew of her father-in-law took him to Agonapur and used to give beatings to him there stating that he must take the names of Ahmad Sher, Lok Pal and Sattan in this case otherwise he would kill him. PW 2 has further stated that her family members were having apprehension that the accused persons may also kill her other family members. PW 2 has stated that all the accused persons have come in her house by climbing from behind the house and after the incident they have fled from the same way. PW 2 has stated that she has recognized all the accused persons because they used to visit her village earlier and her father-in-law was a social worker. P.W 2 has stated that in this incident the accused persons have also robbed the licenced gun of her father-in-law, jewellery and cash. PW 2 has stated that she has sustained serious injuries in this incident. Dr. K.P. Garg (PW-3) has conducted post mortem of the deceased persons. PW 3 has stated that on 23.03.1996 he was posted as Medical Officer at District Hospital Etah. On that day he received the dead body of deceased Jagat Pal in sealed cover and thereafter has conducted post mortem. Following ante-mortem injuries were found on his body: - 1. Incised wound 2 x 0.5 cm on the left eye brow lateral part. 2. Traumatic swelling on left front parietal region. Frontal and parietal bones fractured. 3. Bleeding from right ear present. 4. Bleeding from nose present. Similarly, Dr. K.P. Garg (PW-3) has conducted post mortem of the dead body of deceased Smt. Ram Kali and found the following ante-mortem injuries on her body: - 1. Incised would 4 x 1 cm on the left temporal region 5 cm above the left ear. Temporal bone left side fractured. 2. Incised wound on left side scalp 6 x 1 cm in size, 1.5 cm above injury no.1. Incised would 4 x 1 cm on the left temporal region 5 cm above the left ear. Temporal bone left side fractured. 2. Incised wound on left side scalp 6 x 1 cm in size, 1.5 cm above injury no.1. Post mortem of deceased Smt. Chanda Devi was also conducted by Dr. K.P. Garg (PW-3) and he found the following injuries: - 1. Lacerated wound 11 x 3 cm on the face upper part on both eye brow middle side, the bones below wound fractured. 2. Left eye got completely damaged due to injury. 3. Lacerated wound 1x0.5 cm right eye outer side 1 cm above the eye. 4. Lower jaw broken. Dr. K.P. Garg (PW-3) has proved their post mortem reports Exts. Ka-1, Ka-2 and Ka-3 respectively. The cause of death of the deceased persons was due to coma & shock as a result of ante-mortem injuries and the time of death was stated about one day old. Dr. A.K. Saxena (PW-4) has examined the injured persons. He has stated that on 22.03.1996 he was posted as Emergency Medical Officer, District Hospital Etah. On that day, he has examined Smt. Vimla Devi (PW-2) vide Ext. Ka-4 and has found the following injuries on her person: - 1. Punctured wounds multiple (four) on right side cheek each about 0.5x0.5 depth not probed. 2. Lacerated wound 2x1 cm on right side of ear on pinna. 3. Contusion 5x4 cm on right side of face with swelling on lips. The duration of the injuries was about half day old. On the same day, PW 4 has examined injuries on the person of injured Raju and found following injuries on his person: - 1. Incised wound 2x0.5 cm on left side face just below left eye. 2. Incised wound 1x0.5 cm muscle deep on left side face just below left eye, 1 cm above injury no. 1. 3. Lacerated wound 4x2 on mid part of forehead near hairline, bone visible. 4. Lacerated wound 3x3 cm on pinna of left ear part of skull, muscle deep. 5. Contusion with lacerated wound, lacerated wound 0.5 x0.5 cm on back of left hand with swelling of whole hand 6x4 cm. 6. Contusion 6x4 cm on lateral aspect of right elbow with swelling. All injuries were about half day old in duration and have been caused by some blunt object. 5. Contusion with lacerated wound, lacerated wound 0.5 x0.5 cm on back of left hand with swelling of whole hand 6x4 cm. 6. Contusion 6x4 cm on lateral aspect of right elbow with swelling. All injuries were about half day old in duration and have been caused by some blunt object. PW 4 has proved medical examination report of injured Raju vide Ext. Ka-5. Dr. A.K. Saxena (PW-4) had stated that on the same day he also examined one unknown injured and has found following injuries on his person: - 1. Lacerated wound 6x4 cm on front part of face around nose, upper bone deep. 2. Lacerated wound 3x1 cm on left side face just outside angle of mouth muscle deep. 3. Contusion 4x3 cm on dorsum of left hand side (outer). Dr. A.K. Saxena (PW-4) has proved medical examination report of the said unknown injured as Ext. Ka-6. P.W. 4 has stated that on the same day he has also examined injured Ashish and Neha and prepared their medical examination reports vide Exts. Ka-7 and Ka-8. He has stated that no visible injuries were found on the person of said Ashish and Neha. P.W.6 Constable Rajvir Singh is a formal witness who has reached at the spot with other police officials and thereafter has taken the injured Neha and Ashish to the Government Hospital. He has stated that both the children were unconscious. Similarly, P.W. 7 Constable Surendra Singh is a formal witness and he has taken the sealed dead bodies of deceased Jagat Pal, Chanda Devi and Ram Kali to Etah for post mortem. P.W. 7 has stated that the dead bodies were not tampered with in any manner. He has further stated that after post mortem he has deposited the reports at the police station. P.W. 8 SI Raj Pal Gupta has stated that on 22.03.96 he was posted at Raja Ka Rampur as Head Moharrir. On that day he has recorded the FIR of this case as Crime No. 22/96 which has been proved as Ext. Ka-36. P.W. 8 has stated that he has made entry in this regard at 7: 30 a.m. vide G.D. Entry No. 12 which has been proved as Ext. K -37. P.W. 5 Chandra Sen Gautam has conducted the investigation of the case. P.W. 5 has stated that on 22.03.96 he was posted as S.O. at PS Raja Ka Rampur. Ka-36. P.W. 8 has stated that he has made entry in this regard at 7: 30 a.m. vide G.D. Entry No. 12 which has been proved as Ext. K -37. P.W. 5 Chandra Sen Gautam has conducted the investigation of the case. P.W. 5 has stated that on 22.03.96 he was posted as S.O. at PS Raja Ka Rampur. On that day this case was registered at 7: 30 a.m. vide crime No. 22/96 under Section 396 IPC. The investigation was taken up by him. P.W. 5 has recorded the contents of FIR and G.D. Entry in the case diary and has recorded the statement of FIR writer. P.W. 5 alongwith other police officials has reached at the spot and came to know that injured Udaivir, Raju, Smt. Vimla and Arvind have already been sent to hospital as their condition was quite serious. At that time Smt. Ram Kali was being taken to the hospital but she succumbed to her injuries in his presence. P.W. 5 inspected the spot. The dead body of Dr. Jagat Pal was lying blood-stained on the cot and the dead body of Smt. Chanda Devi was also lying on the cot in the courtyard. The house-hold articles were lying scattered. The children Km. Neha and Ashish were unconscious. They were sent to the government hospital for treatment. P.W. 5 has further stated that he prepared panchayatnamas. Panchayatnama of deceased Smt. Ram Kali was prepared vide Ext. Ka-9 and other related papers i.e. report R.I. Ext. Ka-10, letter to C.M.O., Ext. Ka-11, challan lash Ext. Ka-12 and photo lash Ext. Ka-13 and G.D. No. 12 vide Ext. Ka-14. P.W. 5 has prepared panchayatnama of deceased Chanda Devi vide Ext. Ka-15 and the other related documents i.e. report for post mortem, challan lash, photo lash vide Exts. Ka-16 to Ka-18 respectively. The blood-stained bedding clothes of deceased Chanda Devi including pillow, mattress and 'baan' of the cot, were taken into possession vide memo Ext. Ka-19. The panchayatnama of deceased Jagat Pal was prepared vide Ext. Ka-20 and the other related documents i.e. letter to C.M.O., Challan lash, photo lash were prepared vide Exts. Ka-21 to Ka-23. The blood-stained clothes of deceased Jagat Pal were taken into possession vide Ext. Ka-24. P.W. 5 has prepared the site plan of the spot vide Ext. Ka-25. The bedding clothes of deceased Ram Kali were taken into possession vide Ext. Ka-26. Ka-21 to Ka-23. The blood-stained clothes of deceased Jagat Pal were taken into possession vide Ext. Ka-24. P.W. 5 has prepared the site plan of the spot vide Ext. Ka-25. The bedding clothes of deceased Ram Kali were taken into possession vide Ext. Ka-26. Blood-stained bedding clothes of injured Raju were seized vide Ext. Ka-27 and that of Arvind vide Ext. Ka-28. Sample of blood from the wall as well as sample of plain scrap were taken into possession and sealed them in two containers vide Ext. Ka-29. The blood-stained bedding clothes of injured Vimla Devi were seized vide Ext. Ka-30. Similarly the bedding clothes of injured Udaivir were seized vide Ext. Ka-31. The sample of blood-stained earth as well as of simple earth were taken from near the cot of injured Udaivir vide Ext. Ka-32. One broken pipe was also taken into possession vide Ext. Ka-33 at the instance of the Tubewell operator Ved Prakash. P.W. 5 has recorded statements of some of the persons who were present there and have made inquiries. P.W. 5 was also told that some articles in box and suitcase are lying at chak-road. P.W. 5 reached there and those articles were taken into possession vide Ext. Ka-34. The site plan of the place of recovery was prepared vide Ext. Ka-35. On 23.03.1996 P.W. 5 recorded contents of the post mortem reports in the C.D. and recorded statements of Constable Ran Bahadur, Surendra, Raj Kumar. On 24.03.1996 P.W. 5 obtained medical examination reports of injured Raju and Vimla and of Arvind. Thereafter, the investigation was transferred to SI Kiranvir Singh of PS Patiyali. P.W.5 has proved the seized articles in the form of material exhibits 1 to 21. P.W.10 Inspector Mahesh Chanda has stated that on 20.10.1999 he was posted in CB CID, Agra. On that day the investigation of this case was taken up by him. On the same day the result from FSL was received. The contents of it were entered in the C.D. On 26.10.1999 he has recorded statement of HCP Raj Pal. On 13.11.99 statements of Constable Rajvir, Constable Ranbahadur, Dr. A.K. Saxena, Raghubir, Brahma Prakash, Smt. Ram Shree, Ved Prakash, Subhash Gupta, Ram Autar Shakya, Daya Ram Shakya, Satya Bhan, Lok Pal Singh, and panchan - Ahmad Sher, Mohd. Haneef, Ravindra Singh, Om Prakash, Gajraj, Ram Dutt, Mohd. On 13.11.99 statements of Constable Rajvir, Constable Ranbahadur, Dr. A.K. Saxena, Raghubir, Brahma Prakash, Smt. Ram Shree, Ved Prakash, Subhash Gupta, Ram Autar Shakya, Daya Ram Shakya, Satya Bhan, Lok Pal Singh, and panchan - Ahmad Sher, Mohd. Haneef, Ravindra Singh, Om Prakash, Gajraj, Ram Dutt, Mohd. Irshad, Abdul Rehman, Har Nath Singh, Sanjeev Kumar, Badan Singh Shakya and Brij Raj Singh were recorded. On the same day statements of Ram Ratan, Arvind, Rajeev, Gajraj, Top Singh, and Vinod were also recorded and the criminal history of some of the accused persons was also mentioned. On 14.11.99, P.W. 10 recorded the statement of Ex. M.P. Dr. Maha Deepak Shakya, of previous I.O. Inspector Chandra Sen Gautam and of constable Surendrra Singh. On 15.11.99 P.W. 10 recorded statement of Inspector Raj Guru and on 16.11.99 recorded statement of SI Indra Pal Singh Parihar. On 10.07.2001, P.W. 10 has entered the detail of the arrest of accused Sobran alias Soran. P.W. 10 has stated that he was transferred on the same day and the further investigation was conducted by Naresh Chandra Sharma (PW-9). P.W.9 Inspector Naresh Chandra Sharma has stated that on the order of the U.P. Govt. the investigation of this case was being investigated by the CB CID, Agra Division. Further investigation of this case was taken up by him on 26.7.2001 from Inspector Mahesh Chandra. P.W. 9 has stated that he has perused the case diary and come to know that only arrest of the accused persons has to be effected. P.W. 9 has stated that he came to know that accused Dr. Abhay Pal, and Top Singh were already on bail and accused Sobran has been arrested and he is in jail. On 20.08.2001, P.W. 9 recorded statement of accused Sobran. P.W. 9 has filed the charge-sheet against accused Sobran, Dr. Abhay Pal and Top Singh for the offence under Section 396 IPC vide Ext. Ka- 38 and the charge-sheet against accused Vinod alias Karua was filed vide Ext. Ka-39. Charge against the remaining accused was also filed vide Ext. Ka-40. Learned counsel for the appellantccused has raised precise submission that other co-accused persons of this case has already been acquitted by the Division Bench of this Hon'ble Court vide judgment and order dated 11.09.2015 passed in Criminal Appeal No. 6605 of 2006 (Dr. Abhay Pal Shakya and others Vs. State of U.P.). Ka-40. Learned counsel for the appellantccused has raised precise submission that other co-accused persons of this case has already been acquitted by the Division Bench of this Hon'ble Court vide judgment and order dated 11.09.2015 passed in Criminal Appeal No. 6605 of 2006 (Dr. Abhay Pal Shakya and others Vs. State of U.P.). It has been submitted that the case of the appellantccused is also stands on similar footing as there is similar evidence against him as there were of other co-accused persons in Sessions Trial No. 112 of 2001 (State Vs. Dr. Abhay Pal Shakya & others), Special ST No. 118 of 2002 (State Vs. Sri Arvind & others) arising out of Crime No. 22 of 1996 under section 396 IPC, police station Raja Ka Rampur, district Etah. Therefore, it has been submitted that the appellantccused (herein) is also liable to be acquitted. Learned A.G.A. has accepted this fact that the other co-accused persons of this case have already been acquitted by this Hon'ble Court on 11.09.2015. However, it has been further submitted that the prosecution has led reliable and credible evidence against the appellantccused before the learned Trial Court. Prosecution has proved the charge beyond reasonable doubt against the appellantccused and as such the appeal filed by the appellantccused is liable to be dismissed. We have considered the submissions advanced by respective parties. We have also gone through the impugned judgment of learned Trial Court as well as the judgment of Division Bench of this Hon'ble Court dated 11.09.2015. From the perusal of the record, it appears that PW-1 Raj Shekhar is the son of deceased Jagat Pal. Jagat Pal was killed in the aforesaid dacoity. PW-2 Smt. Vimla Devi is the wife of Udaivir. PW-1 Raj Shekhar and Udaivir Singh are real brothers. From the evidence of PW-1 Raj Shekhar and PW-2 Smt. Vimla Devi, it is apparent that dacoity had taken place in their house but whether it was appellantccused who was also actually involved in the incident. It is admitted fact that the appellant and other co-accused persons of the case were known to the aforesaid both prosecution witnesses and their family members but they had not taken any precaution to conceal their identity. Statement of PW-1 Raj Shekhar and PW-2 Smt. Vimla Devi shows that there was enmity between the deceased Jagat Pal and his brothers co-accused Dr. Statement of PW-1 Raj Shekhar and PW-2 Smt. Vimla Devi shows that there was enmity between the deceased Jagat Pal and his brothers co-accused Dr. Abhay Pal Singh, Raj Kumar, Arbind and informant Ram Ratan with regard to agricultural land measuring 24 bighas on account of which it appears that the appellant and co-accused persons have been implicated in the present case. It is also an important feature of the case that there has been no recovery of any incriminating articles from the possession of the appellantccused in order to show that he was involved in the dacoity which was committed in the house of deceased Jagat Pal. Independent witnesses of the locality has not been examined by the prosecution. Prosecution has not given any reasonable and reliable explanation in this regard, though the dacoity have taken place in heavily populated area. The PW-1 Raj Shekhar and PW-2 Smt. Vimla Devi cannot be relied upon as they are related to each other and are highly interested and partisan witness. It is quite natural for them to falsely implicate the appellantccused alongwith other co-accused persons on account of earlier enmity existing between the parties. It is not safe to rely on the testimony particularly when it is not supported by any recovery or by any corroborative evidence. It also appears from the record that some unknown bandits have committed the present offence but actual dacoits were not identified by Raj Shekhar (PW-1) and Smt. Vimla Devi (PW-2) and their family members. Other accused persons have inimical terms with the deceased Jagat Pal that is why they had been nominated as culprits. Some accused persons and deceased Jagat Pal, his son Raj Shekhar (PW-1), his daughter-in-law Smt. Vimla Devi (PW-2) are inter-se related to each other. There is nothing on record to show that appellantccused is previous convict. These circumstances of the present case creates considerable amount of suspicion regarding the complexity of the appellantccused in the dacoity. We have seen that in the FIR accused persons were not named. Record shows that prosecution witnesses did not disclose the name of dacoits to police officer or any person till 3 and ½ months, though they had previous acquaintance with the accused persons. We have seen that in the FIR accused persons were not named. Record shows that prosecution witnesses did not disclose the name of dacoits to police officer or any person till 3 and ½ months, though they had previous acquaintance with the accused persons. After 3 and ½ months of the incident all of sudden the prosecution witnesses told the name of accused persons including appellant who had committed dacoity in the house of deceased Jagat Pal. There is no reasonable and reliable explanation in the statement of Raj Shekhar (PW-1) and Smt. Vimla Devi (PW-2) in this regard. In its connected Criminal Appeal No. 6605 of 2006 (Dr. Abhay Pal Shakya and others Vs. State of U.P.), the Division Bench comprising of Hon'ble Mr. Justice Arvind Kumar Tripathi and Hon'ble Mr. Justice Pramod Kumar Srivastava has given detailed finding about the delayed FIR. The extracts of para no. 19, 20 and 21 of the judgment and order dated 11.09.2015 are as follows: - "19. Although in present case the formal first information report (FIR) was lodged by accused-appellant Ram Ratan on 22-03-1996 at 7.30 a.m., but the same was disbelieved by prosecution side and said complainant Ram Ratan was made accused. Later on during the investigation after 08-07-1996 when injured witness Raj Shekhar (PW-2) for the first time informed the then Investigating Officer (IO) the name of ten person as accused involved in the incident of dacoity and murder. He had not informed earlier two Investigating Officers (IOs) the name of any accused, but told the name of ten accused persons after about 3½ months; and on basis of this information 10 charge-sheeted persons were made accused in this case. So for all practical purposes first information report for the charge-sheeted accused-appellants was reported with the police on 08-07-1996. The investigation was later on de novo started and completed on this oral first information dated 08-07-1996 which was completely different from original formal FIR dated 22-03-1996 on basis of which case crime no. 22/ 1996 was registered; therefore in present case information dated 08-07-1996 should be and is being treated as FIR. 20. Admittedly the charged incident was committed in the night of 21-03-1996; and from the morning of 22-03-1996 all injured were conscious and were in full senses. 22/ 1996 was registered; therefore in present case information dated 08-07-1996 should be and is being treated as FIR. 20. Admittedly the charged incident was committed in the night of 21-03-1996; and from the morning of 22-03-1996 all injured were conscious and were in full senses. After initiation of the investigation the statement of injured and other witnesses were recorded, but no accused was named any previously known accused from 22-03-1996 to 08-07-1996. So the information dated 08-07-1996 (or FIR in true senses for the charge-sheeted offence) was without any doubt very much delayed. 21. The legal position of such delayed information (or FIR) is discussed by Hon'ble Supreme Court in its various judgments. In 'Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 Hon'ble Apex Court had held as under: "The obligation to register FIR has inherent advantages: (a) It is the first step to "access to justice" for a victim. (b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. (d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR." In 'Thulia Kali v. State of T.N., (1972) 3 SCC 393 , Hon'ble Apex Court held as under: "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 standpoint 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 the names of eyewitnesses present at the scene of occurrence. 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. 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 the lodging of the first information report should be satisfactorily explained." In 'Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775 Hon'ble Apex Court held as under: "In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case." In "Silak Ram v. State of Haryana, (2007) 10 SCC 464 " Supreme Court had held: "Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. There is no hard-and-fast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence adduced with greater degree of care and caution." In Ramdas v. State of Maharashtra, (2007) 2 SCC 170 Hon'ble Apex Court had held: "It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. - - - - The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. - - - - - In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. - - - - - In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. - - - - Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact." It appears that learned Trial Court without considering the aforesaid aspects of the case has erred in convicting and sentencing the appellant. Taking into consideration of all aspects of the matter, we are of the view that prosecution has not succeeded in establishing the offence under Section 396 Indian Penal Code against the appellantccused Sobran. Consequently, the appeal is allowed and the conviction and sentence awarded by the learned Trial Court vide its judgment and order dated 23.10.2007 in Sessions Trial No. 112-A of 2001 (State Vs. Sobran) under Section 396 IPC is set aside and the appellantccused is acquitted of charges under Section 396 IPC. Accusedppellant is in custody. He be released immediately. Appellant-accused Sobran shall furnish fresh bail bonds and sureties in compliance of provision contained under Section 437-A before learned Trial Court. Let a copy of this judgment be sent to learned Sessions, Judge, Etah for ensuring its compliance.