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2017 DIGILAW 1166 (ALL)

RAM CHANDRA v. STATE OF U. P.

2017-05-02

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : Bala Krishna Narayana, J. 1. The arguments of this case concluded on 2.5.2017. 2. We then made the following order :- "Heard Sri R.B. Sahai for appellant no.1 Ram Chandra, Sri Vikas Singh for appellant no.2 Bhagwati and Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena, Smt. Manju Thakur, learned A.G.As. for the State. We will give reasons later but we are making the operative order now. The appeal is allowed. Impugned judgment and order of conviction dated 11.07.1990 passed by Special and Additional Sessions Judge, Fatehpur, in Sessions Trial No.188 of 1988, convicting and sentencing the appellants Ram Chandra and Bhagwati to undergo life imprisonment u/s 302 I.P.C. is hereby set aside by us. Appellants Ram Chandra and Bhagwati are acquitted of all charges. Both the appellants Ram Chandra and Bhagwati are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. However, they will comply with the provisions of Section 437-A Cr.P.C." Here are the reasons :- This criminal appeal has been filed by the appellants Ram Chandra (A1) and Bhagwati (A2) against the judgment and order dated 11.7.1990 passed by Special & Additional Sessions Judge, Fatehpur in Session Trial no. 188 of 1988 (State vs. Ram Chandra and another), under Section 302/34 I.P.C., P.S. Jafarganj, district-Fatehpur, by which both the appellants have been convicted and sentenced to undergo imprisonment for life under Section 302/34 I.P.C. 3. The prosecution case is that PW1 Sita Ram, S/o Ram Chela, R/o village- Maluwa Khera, Pargana-Tappajar, P.S. Bindki, district-Fatehpur lodged a written report (Ext.Ka-1) at police station-Jafarganj on 10.12.1987 at about 9:40 A.M., alleging therein that on 9.12.1987 he had gone to see Amauli fair along with his daughter PW2 Ram Kali and Banslal and while returning to their village they had halted for the night at the house of his sister Smt. Durji in village Taruwapur. It was further alleged that one Ram Chandra (A1), S/o Raja Ram Kurmi who was a relative of his sister was involved in several disputes with his sister and he used to extend threats to her over a property dispute. It was further alleged that one Ram Chandra (A1), S/o Raja Ram Kurmi who was a relative of his sister was involved in several disputes with his sister and he used to extend threats to her over a property dispute. At about 10 P.M. in the night when they had all gone to sleep after taking their meals, his sister Durji was sleeping inside the house and his brother Ramdhani who was also living with his sister Durji in her house was sleeping under a thatch outside the house, Ram Chandra (A1) and Bhagwati (A2) of village-Digharwa came near his brother and assaulted him with knife causing knife injuries to him on which he raised an alarm. On hearing his cries for help, his sister Smt. Durji awoke and tried to come out after opening the door, but in the meantime, the accused assaulted her also with knife and killed her. Thereafter they dragged out her dead body and left it in front of the door. On alarm being raised by the informant and other inmates, the accused fled away towards south of the village. In the first information report it was also alleged that the assailants had been identified as Ram Chandra (A1) and Bhagwati (A2) in the torch light. 4. On the basis of the written report (Ext.Ka-1), PW4 Daya Shankar Tiwari prepared chek F.I.R. (Ext.Ka-25) and registered a case under Section 302 I.P.C. vide G.D. no. 18 at 9:40 A.M. 5. The investigation of the case was entrusted to PW3 S.I. Nahar Singh who at the relevant point of time was posted at police out-post Deori in Police Station-Jafarganj. After receiving the copy of chek F.I.R. and other papers he reached the place of occurrence. After inspecting the dead bodies of the deceased and appointing inquest witnesses he conducted the inquest of the dead bodies of the deceased and prepared inquest report of deceased Smt. Durji (Ext.Ka-2) and deceased Ramdhani (Ext.Ka-3) and letter addressed to C.M.O. (Ext.Ka-5), letters addressed to R.I. (Ext.Ka-6 & Ext.Ka-7), photo-nash (Ext.Ka-8), challan-nash (Ext.Ka-9), sample seal (Ext.Ka-10) regarding deceased Ramdhani and letter addressed to R.I. (Ext.Ka-11), letter addressed to C.M.O. (Ext.Ka-12), sample seal (Ext.Ka-13), challan-nash (Ext.Ka-14), photo-nash (Ext.Ka-15) relating to deceased Durji. Thereafter he got both the dead bodies sealed and dispatched to mortuary for conducting the postmortem through constables Virendra Singh and V.C. Pusu. Thereafter he got both the dead bodies sealed and dispatched to mortuary for conducting the postmortem through constables Virendra Singh and V.C. Pusu. He also inspected the place of occurrence and prepared the site plan of the same (Ext.Ka-4). 6. The postmortems on the dead bodies of the deceased Ramdhani and Smt. Durji were conducted by Dr. S.S. Dwivedi, Medical Officer, District Hospital, Fatehpur on 11.12.1987 at 4:00 P.M. and 3:30 P.M. respectively who also prepared their postmortem reports. The postmortem reports of the deceased Ramdhani and the deceased Smt. Durji are on the record as Ext.Ka-27 & Ext.Ka-28. 7. The postmortem report of the deceased Ramdhani (Ext.Ka-27) indicates that on external examination, the doctor found that the deceased was about 68 years old at the time of his death, and the duration of his death was about one and a half day. The deceased was a man of average built. Rigor mortis was present in lower extremity. Eyes and mouth were closed. 8. The doctor found following antemortem injuries on his dead body:- 1. Incised wound on right side face 4 cm anterior to ear size 2 cm x ½ cm x bone deep transversely. 2. Incised wound on right neck 6 cm ear lobule size 2 cm x ½ cm x muscle deep obliquely. 3. Incised wound 3 cm to injury no.2 size 1 cm x ½ cm x muscle deep transversely. 4. Incised wound on thyroid prominent 2 cm x ½ cm x M.D. transversely. 5. Incised wound 3 cm below injury no.4 size 3 cm x 1 cm x c.deep. 6. Incised wound on right side chest just below mid point of clavicle size 2 cm x 1 cm x cavity deep. 7. Incised wound on right side face 2 cm below lower lip size 3 cm x ½ cm x muscle deep obliquely. 8. Incised wound above ½ cm injury no.7 size 1 cm x ½ obliquely. 9. Incised wound below injury no.7 size 7 cm x 1 cm x muscle deep transversely. 10. Incised wound multiple on right hand size varies from 6 cm x 1 cm x M.D. to 1 cm x ½ cm x M.D. spreading in forearm in an area of 28 cm x 15 cm. 11. 9. Incised wound below injury no.7 size 7 cm x 1 cm x muscle deep transversely. 10. Incised wound multiple on right hand size varies from 6 cm x 1 cm x M.D. to 1 cm x ½ cm x M.D. spreading in forearm in an area of 28 cm x 15 cm. 11. Incised wound multiple in left forearm in an area of 30 cm x 10 cm post medial side size varies from 8 cm x 10 cm post medial side size varies from 8 cm x 1 cm x M.D. to 1 cm x ½ cm x muscle deep. 9. On internal examination the doctor found that the heart was empty. Both right and left lungs were peeling off. Cavity contained about 20 oz.blood. About 8 oz. Semi-digested food was present in the stomach. Small intestines were empty while large intestines were partially full. Bladder was empty. 10. In the opinion of doctor, the cause of death was shock and heamorrhage due to antemortem injuries. 11. The postmortem report of the deceased Durji (Ext.Ka-28) indicates that on external examination, the doctor found that deceased was aged about 68 years at the time of her death and the duration of his death was about one and a half day. The deceased was an average built lady. Rigor mortis was absent in upper extremity while present in lower extremity. Eyes and mouth were open. 12. The Doctor found the following antemortem injuries on her dead body :- 1. Incised wound on left eye lower end size 8 cm x 1 cm x B.D. transversely. 2. Incised wound 1 cm below injury no. 1 size 8 cm x 1 cm x B.D. transversely. 3. Incised wound below injury no. 2 size 14 cm x 2 cm x B.D. mandible broken. 4. Incised wound medial to injury no. 3 size 4 cm x ½ cm x B.D. transversely. 5. Incised wound on right side eyebrow 1 cm below size 1 cm x ½ cm x B.D. transversely. 6. Incised wound on right side angle of mouth size 4 cm x ½ cm x M.D. Transversely. 7. Incised wound 1 cm below injury no. 6 size 4 cm x ½ cm x M.D. 8. Incised wound on right side face 2 cm below lower lip 4 cm x ½ cm x M.D. transversely. 9. 6. Incised wound on right side angle of mouth size 4 cm x ½ cm x M.D. Transversely. 7. Incised wound 1 cm below injury no. 6 size 4 cm x ½ cm x M.D. 8. Incised wound on right side face 2 cm below lower lip 4 cm x ½ cm x M.D. transversely. 9. Incised wound at upper part of neck on right side 5 cm x ½ cm x M.D. anti cut. 10. Incised wound 8 cm below right ear at neck lateral part 4.5 cm x 1 cm x M.D. ant. cut. 11. Incised wound on left side of chest medial to clavicle size 4 cm x 1 cm x cavity deep. 12. Incised wound on left shoulder top size 2 cm x 1 cm transversely. 13. Incised wound on left upper arm 8 cm below injury no. 12 size 3 cm x ½ cm x M.D. 14. Incised wound on left hand at the root of index finger size 5 cm x ½ cm longitude. 15. Incised wound multiple on left hand size varies from 2 cm x ½ cm x M.D. to 3 cm x 1/3 cm x M.D. 13. On internal examination the doctor found that membranes both right and left lungs, spleen and kidneys were peeling off. Heart was empty. There was cut present on right side of vessel of injury no. 11. Cavity was full with blood. About 10 Oz. Semi-digested food was present in the stomach. Both small and large intestines were half full. Bladder was half full. 14. In the opinion of the doctor, the death was caused due to shock and heamorrhage as a result of antemortem injuries. 15. The Investigating Officer also recovered an iron blood stained knife and one live cartridge from the place of occurrence and after sealing the same prepared their recovery memo (Ext.Ka-16). He also seized a kathri, blood stained mattress, blood stained and simple earth, a pair of blood stained shoes, a bag containing coat, pant and Rs. 30/- in cash, one underwear, one chunauti, two cartridges, one bundle of bidi and match box, cycle and silver bangle from the place of occurrence and prepared memos of the aforesaid articles All the aforesaid articles except blood stained mattress, blood stained and simple earth were given in the supurdgi of PW1 Sitaram, while the remaining articles were packed and sealed in a bundle. 16. On 11.12.1987 PW5 Sri Anand Vijai Singh, S.O. of police station-Jafarganj took over the investigation from PW3 Nahar Singh and after completing investigation submitted charge sheet (Ext.Ka-24) against both the accused before Chief Judicial Magistrate, Fatehpur. 17. Since the offences mentioned in the charge sheet (Ext.Ka-24) submitted against the accused were triable exclusively by the court of session, the Chief Judicial Magistrate committed the case for trial of the accused to the court of Sessions Judge, Fatehpur where the same was registered as S.T. No. 188 of 1988 (State vs. Ram Chandra and another) and made over for trial to the court of Special & Addl. Sessions Judge, Fatehpur. 18. On the basis of the material collected during investigation and after hearing the prosecution and the accused on the point of charge, learned Special & Addl. Sessions Judge, Fatehpur framed charge under Section 302/34 I.P.C. against the accused Ram Chandra and Bhagwati. 19. Accused pleaded not guilty and claimed trial. 20. Prosecution in order to prove its case against the appelants examined PW1 Sita Ram and PW2 Ramkali as witnesses of fact while PW3 S.I. Nahar Singh, first Investigating Officer, PW4 constable Daya Shankar Tiwari and PW5 Anand Vijai Singh were produced as formal witnesses. 21. Formal proof of the prostmortem reports of the deceased Ramdhani and Smt. Durji was dispensed with by learned counsel for the defence. These postmortem reports were exhibited as Ext.Ka-27 and Ext.Ka-28. 22. Ram Chandra (A1) in his statement under Section 313 Cr.P.C. denied the prosecution allegations and stated that he was falsely implicated due to enmity and the prosecution witnesses of fact had given false evidence against him. He also filed copy of objection dated 3.8.1988 filed in the court of Consolidation Officer in proceeding under Section 12 of the U.P. Consolidation of Holdings Act by Sita Ram and certified copy of his affidavit dated 11.1.1988. 23. Accused Bhagwati filed copy of statement of Badri Narain dated 12.4.1989 recorded before Consolidation Officer, Jahanabad under Section 9A(2) of Consolidation Act. Bhagwati (A2) has denied his involvement and alleged false implication due to enmity and on account of his being brother-in-law (Sadhu) of Ram Chandra (A1) in his statement recorded under Section 313 Cr.P.C. 24. Learned Special & Addl. Accused Bhagwati filed copy of statement of Badri Narain dated 12.4.1989 recorded before Consolidation Officer, Jahanabad under Section 9A(2) of Consolidation Act. Bhagwati (A2) has denied his involvement and alleged false implication due to enmity and on account of his being brother-in-law (Sadhu) of Ram Chandra (A1) in his statement recorded under Section 313 Cr.P.C. 24. Learned Special & Addl. Sessions Judge, Fatehpur after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record, convicted both the appellants and sentenced them to imprisonment for life under Sections 302/34 I.P.C. 25. Sri R.B. Sahai, learned counsel appearing for the appellant no. 1 has submitted that according to the prosecution case the incident had taken place at 10 P.M. on 9.12.1987, while the written report of the incident was lodged by PW1 Sita Ram on 10.12.1987 at 9:40 P.M. The inordinate delay of almost 11 hours in lodging the first information report notwithstanding the distance between the place of occurrence and the police station being 20 kms. is in itself evidence of the fact that after the dead bodies of the deceased were discovered the written report of the incident was prepared and scribed at the behest of PW1 Sita Ram concocting a false story implicating the appellants after due deliberations and consultations with the police which had arrived at the crime scene immediately after the occurrence as is proved from the evidence of PW2 Ram Kali. Everything was got manipulated by PW1 informant Sita Ram with the aid and assistance of Bhagwati Prasad, real uncle of the wife of PW1 Sita Ram who is a constable in police. Everything was got manipulated by PW1 informant Sita Ram with the aid and assistance of Bhagwati Prasad, real uncle of the wife of PW1 Sita Ram who is a constable in police. He next submitted that Ramdhani and Durji were murdered by some unknown persons in the night of 9.12.1987 and the appellants were falsely implicated in the present case by PW1 Sita Ram with the malafide intention of grabbing the property of Ram Chandra (A1) as no one would have been left in his family to protect his property by falsely alleging that Ram Chandra (A1) who was the son of elder brother of husband of the deceased Durji wanted to grab her property and with the aforesaid object in mind and in furtherance of the aforesaid intention he had forged a will purporting to have been executed by Durji in favour of his wife Rajeshwari, although it has come in the evidence that deceased Durji and Ram Chandra (A1) were living in the same house in their respective portions in complete harmony and there was no acrimony between them and in-lieu of the services rendered by Rajeshwari, wife of Ram Chandra (A1) to deceased Durji, she had executed a registered will in her favour bequeathing her entire properties to her and that she had neither denounced the aforesaid will during her lifetime nor she had instituted any suit for its cancellation. He next submitted that it was humanly impossible for any of the so called eye witnesses to have witnessed the occurrence from the place where they claimed to be present as shown in the site plan (Ext.Ka-4) at the time of the incident. It is admitted case of the prosecution that both the eye witnesses and Banslal were sleeping under the thatched veranda (Atari) on the first floor of the house of the deceased and the occurrence had taken place on the ground floor under the roof of the house of Durji with no source of light available on the spot. It is not the case of the prosecution that both the witnesses on hearing the screams of the victim had climbed down from the roof to the ground floor and seen the occurrence. It is not the case of the prosecution that both the witnesses on hearing the screams of the victim had climbed down from the roof to the ground floor and seen the occurrence. He also submitted that both the witnesses of fact produced by the prosecution during the trial for proving the guilt of the appellants are closely related to the deceased and hence highly interested in seeing the appellants convicted for having allegedly committed the murder of deceased Ramdhani and Durji and hence the trial court committed a patent error of law in convicting the appellants on the basis of the highly interested and untrustworthy testimonies of interested and partisan witnesses. He next submitted that there are inherent contradictions, inconsistencies and discrepancies in the statements of the two eye witnesses recorded before the court and in those recorded by the Investigating Officer under Section 161 Cr.P.C. which materially affect the core of the prosecution story rendering it totally unreliable. He lastly submitted that such being the state of evidence the recorded conviction of the appellant Ram Chandra (A1) and appellant Bhagwati (A2) and the sentences awarded to them can not be sustained and are liable to be set aside. 26. Sri Vikas Singh, learned counsel for the appellant no. 2 while adopting the submissions made by Sri R.B. Sahai, learned counsel for the appellant no. 1 Ram Chandra has submitted that Bhagwati (A2) is neither the resident of village where the incident had taken place nor he had any quarrel with the deceased which could have motivated him to join hands with Ram Chandra (A1) in committing the murder of the deceased as alleged by the prosecution. He next submitted that Bhagwati (A2) has been implicated in the present case only on account of his being the brother-in-law (Sadhu) of Ram Chandra (A1), a fact which was deliberately suppressed by PW1 informant Sita Ram in the F.I.R., though during the trial PW1 Sita Ram admitted in his cross-examination the relationship between the two appellants. 27. Per contra, Kumari Meena, learned A.G.A. submitted that the impugned judgement and order passed by the learned trial judge does not suffer from any illegality, infirmity or perversity, warranting any interference by this Court. 27. Per contra, Kumari Meena, learned A.G.A. submitted that the impugned judgement and order passed by the learned trial judge does not suffer from any illegality, infirmity or perversity, warranting any interference by this Court. She further submitted that the prosecution case stood proved beyond all reasonable doubts on the basis of the testimonies of the witnesses of fact produced by the prosecution during the trial for proving the charge framed against the appellants. 28. The delay in lodging the F.I.R. has been satisfactorily explained by PW1 Sita Ram and there is no force in the submission of learned counsel for the appellants that the F.I.R. in this case is either ante-timed or the prosecution has failed to explain the delay in lodging the F.I.R. The medical evidence on record fully corroborates the ocular testimony. The recorded conviction of the appellants is based upon cogent evidence and the sentence of imprisonment for life awarded to them by the trial court is also supported by relevant considerations and hence no interference with the impugned judgement and order is warranted. We have heard the learned counsel for the parties and perused the record of the trial court. 29. The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not. 30. Record shows that Ramdhani and Durji, real brother and sister of PW1 informant Sita Ram were murdered on 9.12.1987 at 10 P.M. in the house of deceased Durji. The first information report of the occurrence was lodged by informant PW1 Sita Ram on 10.12.1987 at about 9:40 P.M. The distance between the place of occurrence and police station-Jafarganj where the written report of the incident was lodged is stated to be about 20 kms. 31. PW1 informant Sita Ram had categorically alleged in the F.I.R. that Ram Chandra (A1) and Bhagwati (A2) had entered into the house of Durji at about 10 P.M. on 9.12.1987 after all the inmates of the house had gone to sleep after taking their meals and had first stabbed Ramdhani with knives and then his sister Durji who had come out from her bedroom on hearing the cries of her brother Ramdhani. Both the victims had died on the spot. Both the victims had died on the spot. In the written report it was also alleged by PW1 Sita Ram that he along with his daughter PW2 Ram Kali and Banslal had witnessed the entire episode from the Atari on the first floor of Durji's house where they had gone to sleep and had recognized the culprits in the light of torch along with other co-villagers who had reached the place of incident upon hearing the hue and cry. 32. The first question which arises for our consideration is that whether the inordinate and unexplained delay of almost 11 hours on the part of PW1 informant Sita Ram in lodging the F.I.R. of the incident is in itself proof of the fact that the aforesaid time was utilized by the informant PW1 Sita Ram in concocting a false prosecution story in collusion with his own daughter PW2 Ram Kali and the police personnel who had arrived at the place of incident much before the F.I.R. was lodged with the sole object of falsely implicating the appellants Ram Chandra (A1) who was the son of deceased Durji's husband's elder brother and who along with his family was living in harmony with the deceased in his portion of the same house and entire prosecution version is liable to be disbelieved on the ground of delay in lodging the F.I.R. 33. The issue whether the prosecution story can be discarded or disbelieved merely on the ground of there being an inordinate delay in lodging the F.I.R. is no longer res-integra and stands settled by a catena of the judgements of the Apex Court. It would be in our opinion proper to examine the case law on the aforesaid issue :- The Apex Court in the case of Apren Joseph alias Current Kunjukunju and others Vs. State of Kerala reported in AIR 1973 Supreme Court 1, has observed as hereunder:- "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." 34. 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." 34. Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and another Vs. State of Punjab reported in AIR 2001 SC 3576 , 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 17 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. 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 (1991 Suppl.(1) SCC 372; Tara Singh vs. State of Punjab (1991 Suppl.(1) SCC 536); Jamna vs. State of UP (1994 (1) SCC 185). In Tara Singh (Supra) the Court made the following observations: "It is well settled that the delay in giving the FIR by 18 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." " 35. The Apex Court in Tara Singh and others Vs. 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." " 35. The Apex Court in Tara Singh and others Vs. State of Punjab, reported in AIR 1991 SC 63 , the Apex Court in paragraph 4 of its judgment has observed as hereunder:- "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 19 deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. 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 19 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." 36. In State of Himanchal Pradesh Vs. Gian Chand reported in AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:- "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. The appeal is, therefore, dismissed." 36. In State of Himanchal Pradesh Vs. Gian Chand reported in AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:- "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." 37. Thus the legal position which emerges after going through the catena of judgments of the Apex Court referred to herein above is that it is settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in the given circumstances of the case delay in lodging the FIR can be one of the factors which may corrode the credibility of the prosecution version but delay in lodging the FIR cannot be a ground itself for throwing away the entire prosecution version as given in the FIR and later substantiated by the evidence, unless there are indications of fabrication. The Court has further to seek explanation for delay and check the truthfulness of the version to inquire and if the court is satisfied then the case of prosecution cannot fall on this ground alone. 38. So far as the credibility of the F.I.R. version in this case is concerned, learned counsel for the appellants has questioned its reliability by submitting that although the incident in question in which two persons were murdered is alleged to have taken place at 10 P.M. on 9.12.1987 in the presence of three eye witnesses including real brother and niece of the deceased and several other co-villagers had descended upon the place of incident upon hearing the hue and cry and there was a police out-post Deori at a distance of nearly 1 km. from the place of incident and the police from police out-post Deori had arrived at the place of occurrence immediately after the incident, yet the written report of the incident was lodged on the next day at about 9:40 P.M. by PW1 informant Sita Ram. From the perusal of the written report of the incident (Ext.Ka-1), it transpires that the same is bereft of any explanation whatsoever for the inordinate delay of almost 11 hours in lodging the same notwithstanding the distance between the police station-Jafarganj where the F.I.R. was lodged and the place of occurrence in village-Maluwa Khera being about 20 kms. 39. Thus, in order to ascertain whether the prosecution has been able to come up with any explanation for the inordinate delay in lodging the written report of the incident, we will have to look into and scrutinize the evidence of PW1 informant Sita Ram tendered by him during the trial on the aforesaid aspect of the matter. A perusal of the examination-in-chief of PW1 informant Sita Ram shows that he has not given any explanation for the delay of about 11 hours in lodging the F.I.R. However, when he was questioned by the learned counsel for the defence as to why he did not inform the police out-post Deori which was at a distance of hardly 1 km. from the place of incident, he replied that due to terror he had not informed the police out-post Deori. However, the aforesaid statement of PW1 Sita Ram stands totally falsified and contradicted from the facts deposed by PW2 Ram Kali in paragraph 9 of her cross-examination on page 57 of the paper book that she knew that there was a police out-post at Deori about 1 km. away from the village and the information about the occurrence was given by the villagers to police out-post Deori and the police of Deori out-post had arrived in the village in the night itself, while the police of police station-Jafarganj had reached the place of occurrence in the morning. 40. away from the village and the information about the occurrence was given by the villagers to police out-post Deori and the police of Deori out-post had arrived in the village in the night itself, while the police of police station-Jafarganj had reached the place of occurrence in the morning. 40. Deliberate attempt on the part of PW1 Sita Ram to suppress the material fact that the information of the incident was conveyed by the villagers to police out-post Deori and the police personnel of police out-post Deori had arrived at the place of incident in the night, not only shakes the credibility of this witness but also gives rise to very strong suspicion that the written report of the occurrence (Ext.Ka-1) was prepared in consultation with the police of out-post Deori concocting a false story, falsely implicating the appellants. The police intervention in the preparation of the F.I.R. is fully proved from the evidence of PW1 himself. We do not find that the delay in lodging the F.I.R. has been satisfactorily explained and reliability of the F.I.R. stands shattered in view of the material concealments made by PW1 informant Sita Ram in his evidence. 41. The next question which arises is that whether the intervening period between the time of occurrence and the time of lodging the F.I.R. was utilized by PW1 informant Sita Ram in concocting a false story implicating the appellants. 42. From the evidence of PW2 Ram Kali given by her in her cross-examination, it is proved that immediately after the double murder had taken place, the villagers had informed the police personnel of police out-post Deori about the occurrence and they had arrived at the place of incident immediately. 43. The aforesaid fact was deliberately suppressed by PW1 Sita Ram in his evidence. Even in the evidence of PW2 Ram Kali, there is nothing which may indicate that the identity of the perpetrators of the crime was disclosed to the police personnel of police out-post Deori who had arrived at the place of occurrence immediately after the double murder which indicates that till the arrival of the police personnel of police out-post Deori at the place of incident, the identity of the accused was not known either to the informant PW1 Sita Ram or PW2 Ram Kali. Had the identity of the culprits been disclosed by PW1 Sita Ram and PW2 Ram Kali at police out-post Deori then this fact would have definitely been brought on record and the written report of the incident drafted then and there and lodged promptly at police station-Jafarganj. It is obvious that the written report of the incident was prepared at leisure after due deliberations and consultations and in collusion of the police of out-post Deori on account of the influence of Bhagwati Prasad, real uncle of the wife of informant PW1 Sita Ram who was a constable in police. His relationship with Bhagwati Prasad was admitted by PW1 Sita Ram in his cross-examination. Deliberate attempt on the part of the informant Sita Ram to conceal the material fact about the arrival of the police of police outpost Deori immediately after the occurrence on being informed by the villagers, not only by omitting to mention the aforesaid fact in the F.I.R but also in his testimony gives rise to a very strong inference that the prosecution has not approached with clean hands and the true genesis of the incident has been suppressed. Another factor which points out that the F.I.R in this case is a product of police intervention and not the outcome of the mind of the informant is that it is not written in his own handwriting although he is admittedly a literate man. The scribe of the F.I.R Sant Kumar, son of Chheda Lal, resident of Mohanpur, Ghazipur was not neither known to the informant Sita Ram nor he was produced during the trial. PW1 has admitted in his examination-in-chief itself that he had met Sita Ram while on the way to the police station and after arranging a piece of paper from a shop, he had requested him to scribe the F.I.R. to which he agreed and scribed the same. The scribe of the written report was not examined during the trial. The reason given by PW1 Sita Ram for not scribing the F.I.R himself despite his being an educated man that his hands were shaking due to occurrence even more than eleven hours after the incident does not appear to be truthful. 44. The scribe of the written report was not examined during the trial. The reason given by PW1 Sita Ram for not scribing the F.I.R himself despite his being an educated man that his hands were shaking due to occurrence even more than eleven hours after the incident does not appear to be truthful. 44. Thus, in view of the foregoing discussion, we have no hesitation in holding that the F.I.R. in this case is wholly unreliable and untrustworthy and the possibility of the delay in lodging the F.I.R. having been utilised by the informant to concoct a version cannot be ruled out. 45. The next question which arises for our consideration is that whether the evidence of two eye witnesses PW1 Sita Ram and PW2 Ram Kali, examined by the prosecution during the trial for proving the guilt of the appellants is reliable and trustworthy. Before proceeding to consider the aforesaid issue, it would be useful to have a look at the topography of the place of occurrence as set-forth in the site plan of the place of occurrence prepared by the Investigating Officer of the case which is on record as (Ext.Ka-4). The deceased Durji and her brother Ramdhani were residing in the southern portion of the house while the northern portion of the house was stated to be in the possession of Ram Chandra (A1). Towards the south of the portion under the possession of Ram Chandra (A1) and in the east Durji's portion in the house is an open courtyard belonging to Durji with thatched verandas in the south and in the west of the courtyard. The site plan further indicates a thatched veranda abutting the western wall of the southern portion of the house of Ram Chandra (A1) as well as the western wall of his portion in the house. 46. The site plan also indicates that the portion which had fallen into the share of the deceased comprised of three rooms apart from the aforesaid thatched verandas while appellant Ram Chandra's portion in the house comprised of two rooms with an intervening veranda, then another room in the west apart from the two thatched verandas. 46. The site plan also indicates that the portion which had fallen into the share of the deceased comprised of three rooms apart from the aforesaid thatched verandas while appellant Ram Chandra's portion in the house comprised of two rooms with an intervening veranda, then another room in the west apart from the two thatched verandas. In the north of the house of the deceased and the appellant is the house of Ram Lal while in the south of their house are the houses of Laxmaniya and Satya Narayan, in the east is the house of Babu while in the west is a 'Rasta' then houses of Subedar Santosh Kumar and Raj Kishore. It is neither clear from the site plan nor from the testimony of any of the witnesses that the area shown by letters-C and XA in the site plan over which it is alleged that the accused after committing the murder of Durji at place-C had dragged her dead body upto the points XA is covered or open to sky. Site plan further indicates that the spot under the Atari on the roof of the house from where the witnesses claim to have witnessed the accused murdering the deceased Durji at the point C in the site plan and thereafter dragging her dead body from point C upto the points XA has been shown by letter G and the place on the roof from where the witnesses had allegedly seen the appellants killing Dhani Ram under the veranda denoted by letters-XB has been denoted by letter-H in the site plan. The distance between the points H and B, G and C and A and C is stated to be about 10 paces, 15 paces and 19 paces respectively. 47. There is no reliable evidence on record indicating that any source of light was available at the place of occurrence when the double murders were executed and both the murders were committed under the roof of the house of the deceased while the witnesses were sleeping on the roof under a thatched Atari, although PW1 Sita Ram claims to have identified the accused in the light of torch. 48. 48. PWI Sita Ram in his cross-examination on page 39 of the paper book has deposed that the thatched veranda under which the deceased Ramdhani was sleeping is about 20 fit long and 6-7 fit wide and the thatch of the roof is kept on a wall which is about 14-15 fit high. On page 40 of the paper book he has further deposed in his cross-examination that the height of the roof of the veranda under which deceased Durji was sleeping is about 8 fit. On page 35 of the paper book PW1 Sita Ram has deposed that he along with other witnesses had descended from the Atari after the assailants had left the place of incident and while the occurrence was taken place they were inside the Atari. 49. Thus, upon a critical analysis of the claim of PW1 Sita Ram and PW2 Ram Kali of their being eye witness of the incident having regard to the points from where they had allegedly witnessed the occurrence which had taken place on the ground floor under the roof of the house while they were on the first floor of the house inside a thatched Atari, with reference to the site plan of the occurrence and there being no reliable evidence of any source of light at the place of occurrence, notwithstanding the fact that the two eye witnesses claim to have seen the occurrence in the torch light, we hold that it was not possible for them to have witnessed the occurrence while sitting under the thatched Atari on the roof of the house which had taken place under the roof of the house, even, if it is assumed for the sake of arguments that PW1 Sita Ram had a torch with him. 50. The claim of the witnesses of having seen the accused committing the murder of Ramdhani is palpably false as it is evident from their own evidence that they were awakened on hearing the screams of Ramdhani after he had been assaulted by the accused. It was further not possible for them to have seen the accused assaulting Durji having regard to place of incident and the points as mentioned in the site plan from where they had allegedly witnessed her murder. 51. It was further not possible for them to have seen the accused assaulting Durji having regard to place of incident and the points as mentioned in the site plan from where they had allegedly witnessed her murder. 51. Thus, upon a wholesome appraisal of the facts and circumstances of the case and a thorough evaluation of the evidence on record, we find that the F.I.R. in this case was lodged after an inordinate and unexplained delay of more than 11 hours, despite the fact that the police personnel of police out-post Deori had arrived at the place of occurrence immediately after the incident which had taken place at about 10:00 p.m. on 10.12.1987, which indicates that the identity of the accused was not known either to the PW1 informant Sita Ram or his daughter PW2 Ram Kali at that time, otherwise the report of the incident would have been prepared then and there and lodged at the police station-Jafarganj and search for the accused launched forthwith rather than waiting till the morning. The possibility of this period of 11 hours being utilised by PW1 informant Sita Ram for concocting a story after deliberations and consultations with the object of falsely implicating the appellants cannot be ruled out. Moreover the deliberate attempt on the part of PW1 Sita Ram to suppress the material fact about the arrival of the police personnel of police out-post Deori at the place of occurrence immediately after the incident not only in the F.I.R. but also in his statement recorded before the trial court is another factor which creates a doubt about the veracity of the prosecution story as spelt out by him in the F.I.R. The testimony of the two eye witnesses who are father and daughter and closely related to the deceased does not inspire confidence. It is true that evidence of a witness cannot be discarded merely on the ground of his being relative of the deceased but at the same time the evidence of such witness requires a careful and cautious scrutiny, especially in the absence of corroboration by an independent witness. In the present case, we find that the version of occurrence given by the two eye witnesses appears to be fabricated, unreliable and truthful as the witnesses stood to benefit from the conviction of Ram Chandra (A1) for the murder of Durji. 52. In the present case, we find that the version of occurrence given by the two eye witnesses appears to be fabricated, unreliable and truthful as the witnesses stood to benefit from the conviction of Ram Chandra (A1) for the murder of Durji. 52. It has emerged from the record that the deceased Durji had executed a registered will bequeathing her entire movable and immovable properties in favour of Rajeshwari, wife of Ram Chandra (A1) which in a normal course after the death of Durji would have been inherited by Ram Chandra (A1). 53. Apart from the evidence of PW1 Sita Ram and PW2 Ram Kali there is not even an iota of evidence showing that late Durji had during her lifetime instituted any proceedings for cancellation of the will in question or Ram Chandra (A1) had ever quarreled or fought with her for transferring or bequeathing her properties to him or that there was any disharmony between Ram Chandra (A1) and the deceased Durji over the aforesaid issue. PW1 Sita Ram had a very strong motive to falsely implicate Ram Chandra (A1) and his brother-in-law (Sadhu). He knew that his sister Durji would never institute any proceeding for cancellation of the registered will executed by her in favour of Rajeshwari, wife of Ram Chandra (A1) in her lifetime. The double murder of Durji and her brother Ramdhani presented him with an opportunity not only to institute proceedings for cancellation of registered will executed by late Durji in favour of Rajeshwari, wife of Ram Chandra (A1) which he had actually done soon after her murder but also to get Ram Chandra (A1) disqualified from inheriting the properties of Durji by virtue of his being the nephew of her husband upon his being convicted for the murder of Durji, in the event of his succeeding in getting the registered will cancelled and thereby paving his way to grab the entire estate of Durji. 54. Banslal who as per the prosecution version itself was also sleeping along with PW1 Sita Ram and PW2 Ram Kali under the Atari on the roof of deceased's house and who had also allegedly witnessed the occurrence would have been the best witness to corroborate the facts deposed by PW1 and PW2 but he was surprisingly withheld by the prosecution. Banslal who as per the prosecution version itself was also sleeping along with PW1 Sita Ram and PW2 Ram Kali under the Atari on the roof of deceased's house and who had also allegedly witnessed the occurrence would have been the best witness to corroborate the facts deposed by PW1 and PW2 but he was surprisingly withheld by the prosecution. No reason has come forth for not examining Banslal during the trial which leads us to unequivocal conclusion that material witness whose evidence would have helped the Court to arrive at a correct and just conclusion was deliberately suppressed by the prosecution which gives rise to an inference that had Banslal been examined he would not have corroborated the prosecution case as spelt out in the F.I.R. and the facts deposed by PWI Sita Ram and PW2 Ram Kali in their statements recorded before the trial court. 55. Thus, for the aforesaid reasons, we find that the recorded conviction of the appellants and the sentence of life imprisonment awarded to them by Special & Addl. Sessions Judge, Fatehpur vide impugned judgement and order dated 11.7.1990 passed in Session Trial no. 188 of 1988 (State vs. Ram Chandra and another), under Section 302/34 I.P.C., P.S. Jafarganj, district-Fatehpur can not be sustained and are liable to be set aside. 56. The appeal succeeds and is allowed.