Dr. Abhay Pal Shakya & Others vs State Of U.P.
2015 Latest Caselaw 2272 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 44 
 

 
Case :- CRIMINAL APPEAL No. - 6605 of 2006                                     AFR
 
Appellant :- Dr. Abhay Pal Shakya & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nasiruzzaman, A.K. Awasthi, A.S.Solanki, Akhilesh Srivastava, Arjun Singh Solanki, B.K. Solanki, Durvijay Singh, Gaurav Kakkar, J.N.Sharma, Jamwant Maurya, Lav Srivastava, M.P. Yadav, Manish Tewari, O.P.Mishra, Prashant Kumar Srivastava, S.K. Tripathi, Sanjay Mishra, Sanjeev Kr. Mishra, Sri Ram Rawat.
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Arvind Kumar Tripathi, J. 

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.This appeal has been preferred against joint judgment of conviction dated 27.10.2006 passed by Rajendra Kumar-II, Special Judge( D.A.A.)/ Addl. Sessions Judge, Etah in Special ST No. 112 of 2001 (State Vs. Dr. Abhay Pal Shakya & others), Special ST No. 118 of 2002 (State Vs. Sri Arvind & others), Crime NO. 22 of 1995 under section 396 IPC, police station Raja Ka Rampur, district Etah by which 8 accused persons are were convicted for charge under section 396 IPC and each were punished imprisonment for life and Rs. 10000/- as fine.

2.Prosecution case in brief is that on 22.3.1996 at 7.30 am Raj Ratan son of Tribhuvan Singh, R/0 Angaunapur, police station Aliganj, district Etah had given written report in police station Raja Ka Rampur with averment that his brother Ram Pal resides in Raja Ka Rampur. Dacoity was committed in the house of his brother Jagat Pal on 21/22/3/1996 about which he got information on 22.3.1996 at 6:00 am and went to his brother's house and seen dead body of his brother Jagat Pal, his mother Ram Kali, his Bhabhi Chanda Devi w/o Jagat Pal. There were marks of injuries of knife and other non-sharp edged weapon Udaiveer son of Jagat Pal, Vimla Devi wife of Udaiveer, Raj Shekhar and son in law of Rameshwar were seriously injured on the spot. When he asked Vimla Devi about the incident, he told that about 8-10 miscreants had entered the house after midnight who had injured them and committed dacoity and looted single barreled licensed gun, cartridges, ornaments and cash etc. The scribe of this written report was one Rajendra Singh, village Nagla Amri, police station Raja Ka Rampur. On the basis of this written report of Ram Ratan (which was not formally proved during trial, who was later made co-accused). Case Crime No. 22/1996 under section 396 IPC was registered and investigation started. Injured persons were sent for medical examination. Medico legal injuries report of Vimla Devi, Raj Shekhar and one unknown person Ashish S/o Uadi Vir, Neha Daughter of Udaiveer was prepared on 22.3.1996 same day in district hospital Etah. This case was investigated by several Investigating Officers. First Investigation Officer was accused Chandra Singh Gautam (PW-5) before him no witnesses are injured had named any accused during investigation. After several months of the incidents, some witnesses had named 10 persons as accused involved in the incident of dacoity and murder of this case. During investigation on the information received from witnesses then I.O. name not revealed from evidence adduced in court. Ten persons namely Dr. Abhay Pal Shakya, Top Singh, Sobran Singh, Vinod alias karua, Arvind, Gajraj, Greesh, Ram Ratan (first informant), Raiv alias Pappu and Raj Kumar alias Basanta were made accused in this case. After completion of this investigation PW-10 Inspector Naresh Chandra and, PW-9 Inspector Mahesh Chandra Sharma of CBCID had submitted charge sheet against above named 10 accused persons. It is noteworthy that I.O. of this case had not recorded that statement of witnesses in which accused were named as persons involved in the incident of this case. In this case PW-9, Inspector Mahesh Chandra Sharma, I.O. had submitted charge sheet (Ex. K-40) against accused Arvind, Gajraj, Greesh, Ram Ratan, Raj Kumar @ Basanta and Rajiv @ Pappu. After receiving the information of their surrender in the court on the basis of this charge sheet special ST No. 118 of 2002, State Vs. Arvind and others was registered. Before submission of charge sheet (Ex.K-40) formal Investigation Officer had submitted a charge sheet against Dr. Abhay Pal Shakya, Vinod alias Karua, Top Singh and Sobran Singh. On the basis of which, Special ST NO. 112 of 2001, State Vs. Dr. Abhay Pal and others was registered. It is noteworthy that when accused Sobran Singh could not be brought to court his trial was separated and was pending at the of of judgment of the trial court relating to this appeal. Accused Raj Kumar alias Basanta had died on 13.8.2005. Therefore trial abated. Those in two sessions trial mentioned above, judgment was passed against only 8 accused persons.

3.The accused persons had been charged by the Special Judge (DAA)/Addl. Sessions Judge, Etah for offence punishable under section 396-IPC. They denied the charges and claimed to be tried then in support of the charge prosecution side had examined PW-1 Raj Sekhker son of Jagat Pal, PW-2 Smt, Vimva Devi wife of injured Udaiveer, PW-3 Dr. KP Garg, PW-4 Dr.A.K. Saxena, PW-5 Inspector Chandrasen Gautam (I.O.), PW-6 constable Rajvir Singh, PW-7 Constable Surendra Singh, PW-8 SI RamPal Gupta, PW-9 Naresh Chandra Sharma (I.O.) and PW-10 Mahesh Chandra, I.O. Court has examined CW-1 Constable Kukar Singh for ascertaining death of accused Raj Kumar alias Basanta. These witnesses had proved documentary evidence of prosecution side.

4.After close of the prosecution evidence statement of 9 accused persons namely Dr. Abhay Pal Shakya, Top Singh, Vinod alias Karua, Arvind, Gajraj, Greesh, Ram Ratan and Rajiv were recorded. They had denied the allegation and evidence of prosecution side and stated that witnesses had given false evidence and wrong charge sheet have been submitted. They were implicated due to enmity. Defense side had not examined any oral or documentary defence evidence.

5.After conclusion of evidence trial court had afforded opportunity of hearing. Heard argument of both side and thereafter passed joint judgment of the two special trial no. 112 of 2001 and 118/12 on 27.10.2006 by which all the 8 accused persons (whose statement under section 313 were recorded) were convicted for charge under section 396 IPC. Thereafter trial court had heard counsel for the defense and accused persons on the point of quantum of sentence and punishment to all accused persons sentencing each accused for imprisonment for life and Rs. 10000/- fine (in default of payment one year R.I.).

6.Aggrieved by this judgment dated 27.10.2006 the present appeal had been preferred by 8 accused persons who were convicted.

7.We have heard Sri V.P. Srivastava, senior Advocate assisted by Sri V.K. Solanki and Akhilesh Kumar Srivastava appearing for appellants and Sri Manish Tiwari also appearing for appellant Arvind, learned AGA Sri A.N. Mulla appearing on behalf of respondent-state side and gone through the record of the case.

8.PW-1 Inspector Chandrasen Gautam was the first Investigating Officer of the case before whom on 22.3.1996 in morning injured persons were sent to hospital for medical examination and inquest was performed for three deceased victims namely Jagat Pal, Ram Kali and Chanda Devi. He had stated to have seen blood stain dead body of three persons in the house of Jagat Pal. PW-3 Dr. K.P. Garg had performed postmortem of the dead bodies of three deceased persons on 23.3.1996 and prepared postmortem report had proved injuries found on the dead bodies of three victims Jagat Pal, Ram Kali and Chanda Devi and proved of nature of injuries cause of death and approximate time of death. From his believable evidence, it is proved that these three deceased victims had received ante mortem injuries of incised and hard blunt weapon one day earlier which was serious in nature and were cased on their death. Death was caused after about 4-5 house of taking meal. Evidence received in this regard proved that there is possibility of sustaining of grievous injuries of Jagat Pal, Ramji and Chandra Devi any time which would have been caused on their death. Nature of these injuries that it was a case of murder of three persons.

9.PW-4 Dr. A.K. Saxena was posted as emergency medical officer in district Hospital at Etah on 22.3.1996 who has examined injuries of Vimla Devi (28-years), Raju alias Raj Shekhar (18-years), one unknown person, Ashish (1- years) and Km. Neha between 12 am to 12:10 pm. He has not found any mark of injury on body of Ashish and Neha, but there was some clotted blood on nostrils of Neha. On examination PW-4 Dr. Saxena had found one punctured wound, one lacerated wound and one contusion on the body of Vimla Devi (PW-2). He found two incised wounds, two lacerated wounds, two contusions on body of Raju alias Raj Shekhar son of Jagat Pal. He also found two lacerated wounds and one contusion on the body of unknown person examined by him. PW-4 stated that though all injuries were about 1/2 day old. He also stated that Vimla Devi, Raj Shekhar alias Raju and unknown person was brought before him by Satyam and Lokpal Singh of village Raja Ka Rampur; and Neha and Ashish were brought by one constable Raj Vir Singh of police station Raja Ka Rampur. He proved injury reports prepared by him. In cross-examination PW-4 Dr. AK Saxena had stated that three injured namely Vimla Devi, Raj Shekhar and unknown person were in unconscious and semi-conscious state. There was no symptom of administration of any drug relating to unconsciousness during examination of 5 persons examined by him, and all 5 persons were talking during their medico-legal examination. Injuries found on the body of the injured Vimla Dev (PW-2), Raju alias Raj Shekhar (PW-1) and unknown person and their nature could have been inflicted in the night of 21.22.3.1996 by any incised as well as pointed weapon, and also by hard blunt object. From the study of statement of witnesses, especially PW-3 Dr. K.P. Garg and PW-4 Dr. A.K. Saxena this prosecution case is believably proved that injuries were inflicted on Jagat Pal, Ram Kali, Chanda Devi, Vimla Devi and Raju alias Raj Shekhar and on body of unknown person in the night of 22/23.3.1996, which was also caused on death of Jagat Pal, Ram Kali and Chanda Devi.

10.In this case it has to be scrutinized as to whether injuries found on body of the deceased persons and injured persons were inflicted by 8 accused appellants or not. Involvement of charge sheeted Sobran Singh and Raj Kumar cannot be decided because the trial of Sobran Singh is still pending; and Raj Kumar alias Basanta had also died and his case have been abated.

11.Out of 10 prosecution witnesses only two witnesses had deposed as eye witnesses of charged incident. These were PW-1 Raj Shekhar and PW-2 Smt. Vimla Devi. Out of remaining 8 witnesses PW-3 Dr. KP Singh has proved postmortem and its report, PW-3 Dr. AK Saxena had proved injuries of injured persons of this case, PW-5 I.O. Inspector Chandra Sen Gautam had proved proceedings of inquest and recording of statements of witness of fact. It is noteworthy that PW-5 Chandra Sen Gautam, I.O. was first Investigating Officer who had taken statements of witnesses of facts and injured persons, but none had told him during statement under section 161 Cr.P.C about identifying any person involved in the incident, nor had named any person. PW-6 Raj Vir Singh had only taken the injured Neha to the doctor for medical examination. PW-7 constable Surendra Singh had received sealed dead bodies of three deceased persons on 22.3.1996 and had taken them for postmortem and after receiving post-mortem reports had submitted them in the police station. PW-8 Ram Pal Gupta is a formal witness who had proved Ex. Ka-36 Chick FIR, Ex. Ka- 7 copy of GD regarding registration of the case crime no. 22 of 1996 under section 396 IPC on written report of Ram Ratan son of Tribbhuvan. He had not seen any injured persons in police station. PW-9 Naresh Chandra Sharma, PW-10 Mahesh Chandra were I.Os. of this case but they had not recorded statement of any witness of fact of this case, and they had submitted charge-sheets in this case. It is proved from the evidence adduced, as discussed above that Jagat Pal, Ram Kali and Chanda Devi were murdered and PW-2 Vimla Devi and PW-3 Raj Shekhar were injured in the night of 21/22.3.1996. For the charged framed against appellants there had been only two witnesses of fact namely PW-1 Raj Shekhar and PW-3 Vimla Devi.

12.PW-1 Raj Shekhar was examined in the court on 3.4.2003 i.e. after about 7 years of the charged incident. He had stated his age about 23-years at the time of statement. Therefore his age should have been about 16-years at the time of charged incident. He had stated that his father was murdered in the night of 21.3.1996 at about 1:00 a.m. during the dacoity in his house. He further stated that on 21.3.1996 when his father had returned home and was disturbed. He told about threat to his life because he had some altercation with Raj Kumar, Ram Ratan and Arvind for property of 24 bigha land. His father had told that he had asked these persons for partition of property but they had refused and threatened him for life. On 21.3.1996 at about 9 p.m. Dr. Abhay Pal Shakya visited his house had talks with his father, and when he was asked to rest there but Dr. Abhay Pal said that he will stay with his relative (Sadhu Rameshwar). That night his father, Dr. Jagat Pal and Devendra were shis Bhabhi, Ashish and Neha were sleeping in the room of upper story. His grand mother Ram Kali and Chandravati were sleeping in the courtyard and electric light was there, then at about 1:00 pm in the night he heard some sound and woke up and saw that Gajraj, Sobran, Top Singh, Greesh, Ram Newaj entered armed with iron pipe and behind them were Arvind, Raj Kumar, Ram Ratan and Dr. Abhay Pal and Rajiv alias Pappu armed with knives. Girish, Arvind, Ram Newaj and Ram Ratan had gun. They had dragged Udaiveer from his room to the sitting room (Baithak). These persons threatened them with gun and started causing injuries of pipes and knives and stuffed mouth so that they could not raise alarm. These intruder had injured Jagat Pal, Devendra his brother, his Bhabhi, his mother and grand mother. Then those persons had administered something to him through nose and after being satisfied that they are dead they looted gun of his father, ornaments and cash. In the morning some neighbours came there, then he had regained some senses and he came to know about murder of Dr. Jagat Pal, Chandravati and Ram Kali. In this incident Neha and Ashish were also injured. PW-1 had stated that all the accused persons are his close relative. Accused Arvind and Dr. Abhai Pal are his real Uncles and Rajiv, Greesh and Top Sihngh are his cousins. Gajraj and Sobran live with Arvind Singh. During examination PW-1 had stated that after coming into senses in the morning of 22.3.1996 he had not told any person of his vicinity about the details of incident. He was taken to hospital where he remained for about 1 ½ months. During this period he had taking to doctors and other persons but he had not stated any person about the name of accused persons involved in the incident. He came back home and after that on 8.7.1996 for the first time he had informed the police about the incident before that he had not told any person about the incident. He himself had gone to police station and informed the police on 8.7.1996 about the incident. From the date of incident till 8.7.1996 his relatives used to visit him but he had not told them anything about the incident nor had said anything about seeking help. He had denied the suggestion that he was giving false statement in prosecuting the accused persons in dispute relating to partition of the property.

13.PW-2 Vimla Devi wife of Udaiveer is daughter-in-law of deceased Jagat Pal and Chanda Devi. She, her husband Udaiveer and two children Neha and Ashish are injured persons of this case.

14.In her statement DW-2 has stated that on 21.3.1996 his father-in-law Jagat Pal and his brothers had some altercation with Arvind, Rajkumar and Raj Ratan. After that he came back at about 4-5 p.m. He informed that there was some dispute relating to 24 bigha land of Raja Ka Rampur and on that day at about 9:00 pm Dr. Abhay Pal came to her house and went back with her father in law. Later on he came back. She and her husband were sleeping on the room situated at upper floor. Her father in law, Raju and Devendra were sleeping in sitting room (Baithak). At about 1:00 p.m. in the night Arvind, Ram Ratan, Rajkumar , Abhay Pal and Greesh entered into that room with iron pipes and knives. They had started beating her husband and children and daughter; some dragged her children, then they had dragged her husband Udaiveer to the room of ground floor. She followed them for saving her husband. The accused had started beating Jagat Pal, Devendra, Raju , Udaiveer and her in Baithak and also severely beaten Ram Kali and Chanda Devi. Apart from these, five persons Gajraj, Sobran, Top Singh and Ram Newaj, Sattu were also present armed with iron pipe and knives. Greesh, Ram Newaj, Ram Ratan and Arvind had gun also. These persons had beaten her and her family members severely and then administered some drug through nose due to which she became unconscious. In the morning she heard the knock on the door from outside, and managed to open the gate and then saw her father-in-law, mother-in-law and Ramkali mother of father-in-law were lying dead; and Raju, Rajshekhar, Devendra, her husband and children were seriously injured and were in unconscious state. They were taken to hospital in injured state by neighbours. Treatment of her husband had continued for long time after that Greesh, who was nephew of his father-in-law had taken her husband for treatment and used to threaten him. These facts were informed to her by her husband when he came back after completion of his treatment. Greesh used to beat her husband for pressurizing take name of Ahmad Sheikh, Lokpal Sadar as the persons involved in this incident. After the incident police protection was extended to her family. Person from her parental house and other persons have been visiting here during treatment. After treatment she had informed the persons of his parental house about name of accused persons. After returning from treatment and after 15 days of return to her husband she had told police about name of 10 accused persons. PW-2 had stated that during treatment Greesh had donated blood to her husband.

15.After appreciating evidence learned trial Court had accepted the explanation of PW-1 and PW-2 about delayed information of incident to police. The trial court had also accepted that injured Udaiveer was pressurised and manhandled by accused Greesh, and also accepted explanation for not informing the the true incident to police in time. Though the chick FIR or written report was not formally proved in the Court but the trial court had believed that it was accused Ram Ratan who had lodged FIR relating to this case. Trial court had accepted several direct and indirect statements and explanations given by two witnesses of facts during trial and held that 8 appellants had committed dacoity with murder, and committed charged incident.

16.Learned counsel for the appellants had contended that the information given by the witnesses to the police in this case is delayed for about three and half months and this delay was not properly explained. The complainant of the case is co-accused Ram Ratan who is real brother of the deceased Jagat Pal, and after knowledge of the incident he had furnished information to police, on the basis of which investigation had started. It was accused Ram Ratan who set the law into motion for prompt investigation and his act of good faith cannot be doubted. He also contended that accused Greesh had taken injured Udaiveer to the hospital where he properly took care of him and also donated his blood for saving his life. But when treatment was over then on the basis of delayed deliberations witnesses Vimla Devi and Raj Shekhar had given false statement to police in the Court because of existing property dispute.

17.Learned counsel for the appellants also questioned silence of other injured witnesses namely Udaiveer son of deceased Jagat Pal and Devendra who were also seriously injured, but had not given statement before police or in the court about the accused persons, who are their near relatives and previously known persons. He further contended that best evidence of this case was suppressed by prosecution side. The not lodging FIR by injured witnesses as well as extra-ordinary delay in in informing the police about name of previously known culprits was not explained, and false statements wer given by two witnesses of facts which should be disbelieved. He also contended that trial court had passed its judgment on hearsay and unacceptable evidences which is erroneous. Since the prosecution side had failed to prove charge beyond doubt therefore appeal should be allowed and the appellants should be acquitted.

18.Learned AGA has refuted the contention of the appellants' side and contended that if some fault has been committed by the Investigating Officer, then prosecution side should not suffer for that reason. He contended that due to political influence earlier I.O. had not investigated the matter properly, but when investigation was handed over to CBCID then proper evidences were collected. There is no contradiction in the evidence of witnesses of facts and delay in informing the police has been properly explained. Prosecution side has proved charges beyond doubt, therefore, judgment of conviction based on proper evidences should be upheld and appeal should be dismissed.

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. 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. 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. 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. - - - - 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."

22.In light of above mentioned legal position we have gone through the evidences adduced by prosecution side. The trial Court had accepted every explanation given by the prosecution side without considering its evidentiary value. PW-1 Raj Shekhar or PW-2 Vimla Devi had not given reasons as why had they not stated names of previously known accused persons to anyone soon after coming into senses, after the incident. There is no explanation of this delay. PW-2 had not stated as to when for the first time she had informed the police about names of accused persons. She had allegedly returned home after 20-25 days of her treatment. Wen she returned home police security was available to her, but she had informed the name of alleged culprits to I.O. After more than three and a half months. She had not given satisfactory explanation of not informing their names earlier. She had admitted that after coming home she had been doing household works and talking to her relatives, other persons and even police personnel. She could have informed them, at least to police personnel. But it was not done and its explanation was also not given. At one place during her cross-examination PW-2 had told that she had informed some police persons when she was at her home, but this fact had not been substantiated by the prosecution side. Neither the name of any such person was disclosed by the PW-2 nor any such person had been examined by prosecution side. There is no satisfactory explanation as to why PW-2 had not informed the name of real culprits of the case to police immediately after coming into full senses, especially in the circumstance that they had seriously injured her, her husband, and two children, and also murdered three members of her family. Had she any threat to her life then she would have informed the names of already known culprits to police. But in fact she had permitted police/ I.O. To believe that incident of murder was caused by dacoits during dacoity.

23. Same is the position of the PW-1 Raj Shekhar whose father, mother and bhabhi were murdered before him; and also his real brothers, bhabhi, nephew, niece and near relative Devendra were seriously injured. Had he knew the names of real culprits he would have immediately informed their names to police. Accused-appellants are previously known to him and are his close relatives. But he had not named any person involved in the incident to I.O. of the case, PW-5 C.S. Gautam. There is no satisfactory explanation of doing so. PW-1 was allegedly in hospital for about 1½ months where according to his own admission he was talking to visitors and people. But during this long period he had not informed the police nor given any written information to anyone about the name of real culprits involved in this case. Natural reason of this may be that he had no knowledge about their identity. On the contrary he had informed the first I.O. PW-5 C.S. Gautam that dacoits were unknown. His information and statement to first I.O. (PW-5) was his natural conduct. There is no satisfactory explanation as to why PW-1 had deliberately chose to conceal such important explanation and led the police to investigate the matter in allegedly wrong way.

24. One injured Udai Veer is husband of PW-2, and also son of deceased Jagat Pal and Chanda Devi. Another injured Devendra is also close relative of deceased and remaining injured persons. But neither Udai Veer nor Devendra had ever informed the name of real culprits of this case to police. PW-5 C.S. Gautam IO had recorded their statements of dacoity and murder by unknown dacoits. They are the best witnesses of the incident in question. Parents of Udai Veer were murdered before him but he had not been examined to prove that appellants were real culprits of the charged incident.

25. Udaiveer was son of the deceased persons and he was expected to give correct information to police as well as to Court, but he had no done so. Even during trial he had not attended the Court to name the real culprits or appellants who had murdered his father and mother, in spite of the fact that his wife PW-2 Vimla Devi had attended Court several times and deposed. It is Udaiveer being one of the best witnesses who was deliberately not examined by the prosecution side and his very important evidence was deliberately suppressed which leads presumption of fact against prosecution case. Similarly Devendra is close relative of the injured and deceased persons and also injured prosecution witness of facts, who had access in their house, and also was sleeping in the house at the time of charged incident. His evidence was deliberately suppressed by prosecution side. Thus the evidence of two very important injured witnesses namely Udaiveer and Devendra was deliberately suppressed which leads to presumption of fact against prosecution version. In any case after coming into senses these two injured witnesses were able to name the real culprits of the charged incident, if they were previously known to him. But neither they had attempted to submit any written information to police nor had given any oral information or statement about identity of culprits. They had informed the I.O. that appellants were unknown dacoits. These facts support this prosecution case that after passing of sufficient time after the incident, the prosecution witnesses had falsely implicated the appellants due to existing enmity relating the property dispute; and unexplained very long delay afforded opportunity to PW-1 and PW-2 who had got opportunity of consultation to settle their scores relating to property dispute by implicating appellants as accused in this case. This appears only reason for unexplained deliberate delay in informing the police about name of appellants after about 3 ½ months of the incident. PW-1 and PW-2 had sufficient opportunity to explain the police about the incident well within reasonable time about allegedly proviously known culprits, but they had deliberately chosen not to name appellants, the reason of which may be that in fact appellants were not involved in the incident relating to this case. In their cross examination PW-1 and PW-2 had not given any satisfactory explanation of delay in informing the police about name of accused persons. PW-2 had also tried to explain as to why her husband Udaiveer had not informed the police. She had told that accused Greesh had taken her husband Udaiveer for treatment and he used to manhandled him for naming innocent persons as culprits. This altogether erroneous and unacceptable. PW-2 Vimla Devi had information about alleged maltreatment given to her husband by Greesh was on the basis of information received from Udaiveer, because she had not witnessed any such incident between Udaiveer and Greesh. Therefore, her information in this regard is based on hearsay evidence received from her husband Udaiveer. Since Udaiveer had not been examined in this case to prove those facts, therefore, hearsay information has been received from him are not acceptable in evidence.

26. It is admitted by prosecution witness that accused Greesh had taken the injured Udaiveer (husband of PW-2 Vimla Devi and uncle of PW-1 Rajshekhar) and had donated blood to him during treatment. When Udaiveer was seriously injured and was in need of treatment and care he was attended and helped by accused Greesh. But few months after his recovery from injuries and after coming out of danger his wife (PW-1) and nephew (PW-2) had informed the police that Greesh and other previously known accused persons, who are also their near relatives, were real culprits. But Udaiveer himself had not informed any person about the incident of dacoity and murder by appellants. Udaiveer (husband of PW-1) had not come before the Court to depose that he was manhandled and mistreated by accused for non naming him and implicating falsely other persons. Therefore best evidence of this point was also suppressed by prosecution side which leads to presumption against prosecution story. The acceptance of statement of PW-2 Vimla Devi by trial court on this point is based on hearsay evidence which is erroneous and not acceptable in law.

27. There are gray areas of this case. Three Investigating Officers had been examined and before none of them any prosecution witnesses had named any accused persons as culprit of this case. It was not explained before the court as to when, in fact, the I.O. came to know about the name of accused persons. The I.O. who had allegedly recorded belated statements regarding naming of accused-appellants was not examined. If the witnesses of this case had informed the police immediately after the incident about name of accused-appellants as real culprits of this case, then law would have been set into motion for verifying truthfulness of their statement. Long delay in such matters resulted in vanishing of the evidence. The deliberate long unexplained delay by PW-1 and PW-2 and other injured witnesses had resulted in disappearance of important evidences. Therefore, disappearance of very important factual and circumstantial evidences, which were available immediately after the commission of incident were destroyed due to very long unexplained delay by the witnesses examined in this case. Therefore, this had caused undue prejudice to accused-appellants because I.O. was not in a position of investigate the matter verifying the truthfulness of evidence and verify the angle of innocence of accused-appellants. For such deliberate unexplained acts of PW-1 and PW-2 and other witnesses of facts, the accused appellants should not suffer. Prosecution case was that FIR of this case was immediately lodged after the incident by accused Ram Ratan. The case of prosecution was that this incorrect report was lodged for diverting the attention of police and misleading them. This contention is not acceptable. Had the accused-appellant Ram Ratan been interested in suppressing the wrongful acts committed by appellants and other co-accused persons he would not have reported the matter to police immediately and set the law into motion for search of real culprits. On FIR of accused Ram Ratan police had started the investigation without any undue influence, recovered certain articles of dacoity and tried to identify the real dacoits and killers. In this case other bona fide acts, for example lodging of FIR by accused Ram Ratan, the treatment of injured Udaiveer by accused, donation of blood to injured Udaiveer by accused persons and helping victims in their treatment by accused persons were not considered by trial Court. From evidences it is proved that help extended by appellants after incident were initially accepted by victims of this case, but after lapse of sufficient time they had chosen to implicate the appellants as accused due to property dispute. It appears that after being recovered from injuries and after lapse of sufficient time, the sense of gratitude of the help extended by appellants had evaporated, and then PW-1 and PW-2 had chosen to go back to pursue their property dispute, and for that reason named the appellants as persons involved in this case after about 3½ months of the incident.

28. A perusal of impugned judgment reveals that learned Sessions Judge had gone through all prosecution evidences from carelessly and negligently, and believed unbelievable hearsay evidences without considering their legal and factual implications. Carelessness of learned Sessions Judge is clear form the fact that no witness of fact (PW-1 and PW-2) ever named Vinod alias Karua in his statement in the court, but this accused was convicted. This proves that evidence were not properly perused by learned Special/ Addl. Sessions Judge. Accused Rajiv alias Pappy was not named by PW-2 Vimla Devi in her statement as culprit. On the contrary she had named one Sattu (who is not accused). PW-1 Raj Shekhar had not named any Sattu. Interestingly both PW-1 and PW-2 had taken name of one Ram Newaj as co-accused and dacoit of this case. There is no explanation of this facts that had the name of Ram Newaj was informed to I.O., this man would have been made accused. Since then I.O. was not examined before whom prosecution witnesses had taken name of accused persons so there is no explanation of non inclusion of name of Ram Newaj, and in any case there appears no explanation as to why the learned Special/Addl. Sessions Judge ad convicted the accused-appellant Vinod alias Karua whose name had never came into light in evidence of any witness.

29. On the basis of above discussion, we are of the considered opinion that the learned Addl. Sessions Judge had not appreciated facts and evidence available in this case and had negligently and carelessly passed judgment of conviction without properly studying statements of witnesses. In view of the above, we are of the considered opinion that prosecution side had failed to prove charges against accused persons. Therefore appeal succeeds and is, accordingly, allowed. The judgment of conviction dated 27.10.2006 passed by Rajendra Kumar- II, Special Judge (DAA)/ Addl. Sessions Judge, Etah in Special S.T. No. 112 of 2001 (State Vs. Dr. Abhay Pal Shakya and others), Special S.T. No. 118 of 2002 (State Vs. Sri Arvind and others), Crime No. 22 of 1995 police station Raja Ka Rampur, district Etah is set set aside, and all the accused-appellants are acquitted of charges under section 396 IPC. Accused appellants are in custody. They be released immediately.

30.Let the copy of this judgment be sent to learned Sessions Judge, Etah for ensuring its compliance. Let a copy of this order be communicated to learned Addl. Sessions Judge Sri Rajendra Kumar II, Judge, Etah through Registry for information and future guidance.

Date: 11.9.2015

SKS