Surya Pandey and Others vs State of U.P.

B.K. Narayana, J.—1. Heard Sri Gopal Chaturvedi, Senior Advocate assisted by Sri Samit Gopal and Sri Anurag Shukla, learned counsel for the appellants, Sri Akhilesh Singh, learned Government Advocate assisted by Sri N.S. Yadav, Sri J.K. Upadhyaya, Sri B.D. Mishra, learned AGA for the State and Smt. Manju Thakur, brief holder for the State.

This criminal appeal has been preferred by appellants Surya Pandey @ Kuldeep Pandey and Dharmendra Pandey upon being convicted under Sections 147, 148, 302/149, 307/149 read with Section 120B IPC, Section 7 of Criminal Law Amendment Act and Section 3/25 Arms Act vide judgement dated 21.05.2015 and sentenced to two years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine additional imprisonment of 15 days under Section 147 IPC, three years rigorous imprisonment and a fine of Rs. 1000/- and in case of default of payment of fine one month extra imprisonment under Section 148 IPC, ten years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine additional imprisonment of three months under Section 307/149 IPC, six months rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine one months additional simple imprisonment under Section 7 of Criminal Law Amendment Act, three years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine additional simple imprisonment of two months under Section 3/25 of the Arms Act and death sentence under Section 302/149 IPC read with Section 120B IPC passed by Additional Sessions Judge, Court No. 3 Basti in S.T. No. 257 of 2012 under Sections 147, 148, 149, 302, 307, 120B IPC, Section 7 Crl. Law Amendment Act and Section 3/25 Arms Act, P.S. Paikolia District Basti case crime No. 661 of 2011. Reference made by the Additional Sessions Judge, Court No. 3, Basti to this Court for confirmation of death sentence passed by him against the appellants which was registered as Reference No. 05 of 2015 before this Court and connected with this appeal by order dated 01.07.2015 passed by this Court, is also being considered along with this appeal.

The facts of the case as emerging from the reading of the FIR are that one Anil Kumar Pandey, PW-1 lodged a written complaint (Ex.Ka-2) on 27.09.2011 at about 10.00 p.m. at P.S. Paikolia District Basti against four persons, namely, Surya @ Kuldeep Kumar Pandey son of Satya Prakash Pandey, appellant No. 1, Dharmendra Pandey son of Satya Prakash Pandey, appellant No. 2, Rajeev @ Nanhe, son of Satya Prakash Pandey and Dharmendra Pandey, son of Vijay Bahadur Pandey alleging that while complainant and his brother Pankaj Pandey (deceased No. 3) were talking to Ratnakar Pandey, deceased No. 2, owner of Rajat PCO inside the PCO building situated in front of State Bank along with Shiv Prakash Pandey son of Lalta Prasad Pandey of the same village, Lalta Prasad father of the Shiv Prasad Pandey also arrived at the Rajat PCO and thereafter the complainant and Lalta Prasad Pandey went to the kiosk of one Virendra Yadav across the road for having beetle leaves while Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey continued with their discussion inside the Rajat PCO. At that time four persons including the appellants Dharmendra Pandey and Surya @ Kuldeep Pandey and non-appellant Rajeev @ Nanhe and Dharmendra Pandey son of Vijay Bahadur Pandey, resident of village Tenua Ranipur, P.S. Chapia, District Gonda came on two motorcycles and after parking their motorbikes in front of Rajat PCO menacingly entered the PCO and started firing indiscriminately with their firearms at Pankaj Pandey, in the incident Shiv Prakash Pandey and Ratnakar Pandey also received firearm injuries when they tried to save Pankaj Pandey. While the aforesaid occurrence was taking place, Dharmendra Pandey and Rajeev @ Nanhe had stood outside the Rajat PCO scaring the people present there by firing with their firearms in the air and threatening anyone who dared to intervene with dire consequences. As soon as the companions of Dharmendra Pandey and Rajeev @ Nanhe came out of the PCO they also started firing at the PCO building. As a result of indiscriminate firing by the accused complainant''s brother Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey received multiple firearm injuries. It was also alleged in the FIR that the aforesaid incident was witnessed by the complainant and Lalta Prasad Pandey and when they and the other persons present there advanced towards the PCO, the assailants fired at them also but they did not receive any injury. After committing the ghastly crime, all the four culprits drove away on their motorcycles brandishing their arms. Thereafter the complainant took the injured Pankaj Pandey, Shiv Prakash Pandey and Ratnakar Pandey to District Hospital Basti for treatment where Shiv Prakash Pandey son of Lalta Prasad Pandey died during treatment. Considering the serious condition of injured Pankaj Pandey and Ratnakar Pandey they were referred for treatment to Lucknow Medical College from where Pankaj Pandey was further referred to Ford Hospital where he also died on the next morning i.e. on 27.09.2011. The third injured Ratnakar Pandey was being treated in Lucknow Medical College. On the basis of the aforesaid complaint, case crime No. 661 of 2011 under Sections 147, 148, 149, 302, 307, 120B IPC, Section 7 Crl. Law Amendment Act and Section 3/25 Arms Act was registered against all the aforesaid four persons and entry thereof was made into G.D. at Sl. No. 33 at 22.00 hours on 27.09.2011, carbon copy of the G.D. Entry is on record as Ex. Ka-9. The Check FIR Ex.Ka-8 was prepared at the police station by PW-9 Ram Dhani. As soon as the FIR of the aforesaid incident was registered, the Investigating Officer swung into action and reached the place of occurrence on 27.09.2011 and inspected the same in the presence of the witnesses Gaureesh Nandan Pandey, s/o Anand Prasad Pandey and Mahesh Kumar Pandey s/o Sukhdev Prasad Pandey resident of Keshavpur, P.S. Haraiya, District Basti and recovered six empty cartridges KF-7.65, four fired bullets and a black helmet with a bullet mark. The empty cartridges and the bullets were seized, packed and sealed in a white piece of cloth while the helmet was packed and sealed in a separate piece of cloth, recovery memo Ex. Ka-5 was prepared on the spot.

PW-14 Ravi Kumar Rai S.H.O., Etawah, District Siddharthnagar prepared the inquest report of deceased Mantu @ Shiv Prakash (Ex. Ka-3) as well as other papers enclosed with the inquest report, police form Nos. 79 & 13, Ex. Ka-13 and Ex. Ka-14. PW-2 Lalta Prasad Pandey father of the deceased was one of the witness of the inquest.

Autopsy of the dead body of deceased Mantu @ Shiv Prakash Pandey was done on 27.09.2011 by Dr. Arvind Kumar, PW-11 along with the Dr. Chaudhary.

PW-10 S.I. Kuldeep Chandra, P.S. Gomti Nagar, Lucknow prepared inquest report of deceased Pankaj Pandey Ex. Ka-1 on 27.09.2011 after he had succumbed to the injuries received by him on the previous day while undergoing treatment at Nova/Ford Hospital, Lucknow. Complainant Anil Kumar Pandey, PW-1 was one of the witness as of the inquest.

Autopsy of the dead body of the deceased Pankaj Pandey was performed by Dr. Sanjay Gupta, Senior Consultant/Surgeon, Dr. Ram Manohar Lohia PW-13 on 27.09.2011.

Inquest of Ratnakar Pandey, who died on 30.09.2015 in Gandhi Memorial and Associates Hospital, Lucknow was conducted at 6 p.m. on 01.10.2015 by S.I. Dharamvir, PW-15 who prepared the inquest report and all other documents namely sketch of dead body Ex. Ka-11, police form No. 13, Ex. Ka-17, G.D. No. 7 Ex. Ka-18 and the letter sent to C.M.O. Ex. Ka-19.

Autopsy of the dead body of the deceased Ratnakar Pandey was done by Dr. Akhilesh Singh, Medical Officer, Balrampur Hospital on 01.10.2011.

Accused Surya @ Kuldeep Pandey and other two persons allegedly involved in the commission of the crime in question were apprehended by S.O. Pradeep Kumar Singh, S.I. Sri Rajbali Prasad, Constable Ram Kaval Yadav, Constable Balendra Prasad, Sri Randhir Mishra, S.H.O., Constable Sudhakar Mishra, Constable Ashok Singh at Puraina Tirahe on 03.10.2011 where they had reached pursuant to the information given to them by the police informer, while the suspects were heading towards Babhnaan Railway Station on their two motorcycles, namely, Yamaha motorcycle No. UP42 E-6261 and black colour Suzuki Max 100 No. UP 42 C-7369 to catch the train for Mumbai. The person who was driving the Yamaha motorcycle disclosed his name as Surya @ Kuldeep Pandey while the person who was driving the Suzuki Max told the police that his name is Bhushan Yadav. The person who was riding the pillion of Suzuki motorcycle disclosed his name as Naushad Ansari. The search of Surya @ Kuldeep resulted in recovery of one countrymade pistol with four bullets in the magazine, one countrymade pistol of 12 bore and two live cartridges of 12 bore from Bhushan Yadav and one country made pistol of 315 bore and two live cartridges of 315 bore from Naushad Ansari. Upon being interrogated all the aforesaid three persons admitted their participation in the commission of the crime in question on 26.09.2011. On the basis of the aforesaid recoveries made from the aforesaid accused case crime No. 661 of 2011, Section 3/25 of the Indian Arms Act was registered against them at P.S. Paikolia, District Basti. The accused after being informed about the offences committed by them were arrested and illicit articles recovered from their possession were packed and sealed separately. Recovery memo of the aforesaid recoveries Ex.Ka-4 was prepared on the spot. The motorcycles of the accused were also seized. Investigating Officer recovered the crime weapon along with two live cartridges, and one Bajaj Platina Motorcycle allegedly used by the accused Dharmendra Pandey son of Vijay Bahadur Pandey in the commission of the triple murder from a sugarcane field near Parsauda road on 13.10.2011 on the pointing out of the appellant No. 2 Dharmendra Pandey, son of Vijay Bahadur after he was arrested on 07.10.20111. The recovery of the aforesaid articles was witnessed by Gopal Chandra Pandey son of Shiv Pujan Pandey and Umesh Kumar Pandey son of Late Chandra Prakash Pandey both residents of P.S. Haraiya, Village Keshavpur, District Basti. The number plate of the motorcycle was found tampered and its number was not illegible. All the recovered articles were packed and sealed separately and the recovery memo Ex. Ka- 4 was prepared on the spot. The Investigating Officer also prepared site plans of the places of occurrence and the recoveries and after completing the investigation submitted charge sheet against the appellants and Bhushan Yadav, Naushad Ansari under Sections 147, 148, 149, 302, 307, 120B IPC, Section 7 Crl. Law Amendment Act and Section 3/25 Arms Act. Charge sheet was submitted against Dharmendra Pandey, son of Satya Prakash Pandey, Manish Pandey son of Satya Prakash Pandey as absconders. The case was committed for trial to the court of Sessions by C.J.M., Basti vide his order dated 30.11.2012 Sessions Judge, Basti framed charges against the appellants Surya @ Kuldeep Pandey, Dharmendra Pandey appellants, Bhushan Yadav, Naushad Ansari, Dharmendra Pandey son of Vijay Bahadur Pandey under Sections 147, 148, 149, 302, 307, 120B IPC, Section 7 Crl. Law Amendment Act and Section 3/25 Arms Act. The accused denied the charges and claimed trial.

The prosecution in order to prove its case examined PW-1, Anil Kumar Pandey (brother of the deceased Pankaj), P.W.-2, Lalta Prasad Pandey (father of the of the deceased Mantu @ Shiv Prakash Pandey, PW-7 Ravindra nath Pandey as witnesses of fact, PW-3 Ashok Kumar, PW-4 Gopal Chandra Pandey, PW-5 Mukesh Pandey, PW-6 Mahesh Kumar, PW-8 Dr. Awadhesh Chaubey, PW-9 Ram Dhari Dinkar, PW-10 Kuldeep Chandra, PW-11 Dr. Arvind Kumar, PW-12 Dr. Akhilesh Chandra, PW-13 Dr. Sanjay Gupta, PW-14 Ravi Kumar Rai, PW-15 Dharamvir, PW-16 Randhir Kumar Mishra, PW-17 Pradeep Kumar Singh, PW-18 Bhanu Pratap Singh and PW-19 Bhagwan Das Yadav. Apart from the oral evidence as mentioned herein above following documents were produced and proved by the witnesses and marked as Exhibits. These are as follows:-

Inquest report of deceased Pankaj Pandey Ex. Ka-11.

Written complaint Ex. Ka-2 filed by PW-1.

Recovery memo Ex. Ka-4

Recovery memo of empty cartridges and fired bullet and one helmet Ex. Ka-5

Injury report of Ram Ratan Pandey, Pankaj Pandey Ex. Ka-6, Ex. Ka-7

Check FIR Ex. Ka-8

Recording of cases in G.D. Ex. Ka-9.

Post mortem report of Mantu Pandey, Ratnakar Pandey and Pankaj Pandey Ex. Ka-10, 11 and 12 respectively

Police form No. 379 Ex. Ka-13

Police form No. 13 Ex. Ka-14

Police form No. 211 Ex. ka-15

Police form No. 379 containing the Ratnakar Pandey Ex. Ka-16

Police from Bi, 13 Ex. Ka-17

FIR Ex. Ka-18

Police form No. 13 Ex. Ka-19

Recovery memo Ex. Ka-20

Site plan of the place of occurrence Ex. Ka-21

Site plan of the place from where the recoveries were made Ex. Ka- 22, 23.

Charge sheet Ex. Ka-24

Letters sent by the S.P. for forensic examination of the recovered articles Ex. Ka-25

Report of the forensic lab Ex. Ka-26

Sanction obtained from prosecuting the accused under the Arms Act Ex. Ka-27, 28, 29 and 30.

The accused Surya Prakash @ Kuldeep Pandey and Bhushan Yadav, Naushad Ansari and Dharmendra Pandey denied the prosecution case and alleged false implication at the behest of the informant and his family members in their statements recorded under Section 313 Cr.P.C. They further stated in their statements that the deceased Pankaj Pandey was a history sheeter against whom large number of cases of murder, robbery and drug peddling were registered in several districts and in all probability he had been murdered by one of his large number of enemies. The accused did not examine any witness in defense.

After considering the entire evidence on record oral as well as documentary and the submissions advanced by the learned counsel for the parties before him, learned Additional Sessions Judge, Court No. 3 Basti convicted the appellants Surya Prakash Pandey @ Kuldeep Pandey and Dharmendra Pandey under the above mentioned sections and awarded them the aforesaid sentence while co-accused Naushad Ansari and Bhushan Yadav were acquitted by him giving them benefit of doubt.

Learned counsel for the appellant submitted that the incident in question had taken place on 26.09.2011 at about 3.30. p.m. in village Keshavpur, District Basti in the presence of a large number of persons including Anil Kumar Pandey, PW-1 the real brother of one of the three deceased Pankaj Pandey and PW-2 Lalta Prasad Pandey father of another deceased Mantu Pandey @ Shiv Prakash but the FIR of the incident was lodged by Anil Kumar Pandey after an inordinate delay of more than 30 hours at P.S. Paikolia District Basti without any satisfactory explanation and from the facts of the present case it is fully established that the identity of the assailants was not known at all and inordinate delay was utilised by the informant to fabricate the present case against the appellants and implicate them falsely. He next submitted that in view of the inordinate delay in lodging the FIR, the credibility of the prosecution version as spelt out in the FIR stands totally corroded and the prosecution case is liable to be thrown out on the ground of delay in lodging the FIR and the view taken to the contrary by the trial court is wholly unsustainable in the eyes of law.

He further submitted that the delay of more than 30 hours in lodging the FIR gives rise to a reasonable doubt that this time was utilized for consultation with a view to implicate the appellants due to previous enmity and hence the possibility of false implication of the appellants cannot be ruled out. Such a long time lapse by the informant in lodging the FIR has rendered the entire investigation tainted and the prosecution case based on such tainted investigation deserves to be thrown out in a wholesale manner as there is no scope to separate grain from the chaff.

Learned counsel for the appellant also submitted that the conviction of the appellant is further vitiated on account of complete absence of motive to commit the offence and the election rivalry between the families of deceased Pankaj Pandey and Dharmendra Pandey suggested by the prosecution as the motive for the appellants to commit the triple murder is not at all convincing while on the other it was fully established by the defense that deceased Pankaj Pandey was a history sheeter having a long criminal history which spread over Sitapur, Barabanki, Faizabad and Basti and his murder could have been committed by any one of his numerous criminal companions on account of his antecedents while other two deceased Ratnakar Pandey and Mantu @ Shiv Prakash became unfortunate victims of the shoot out in which the lone target was Pankaj Pandey, on account of their being present near the deceased Pankaj Pandey.

He also submitted that although the incident in question was witnessed by a large number of villagers but no independent witness has come forward to corroborate the prosecution case and the evidence of the three so called eye witnesses examined on behalf of the prosecution, namely PW-1, PW-2 and PW-7 is totally untrustworthy and unreliable because PW-1 and PW-2 are partisan witness on account of their being close relatives of the deceased while the testimony of PW-7 is liable to be thrown our outright as his presence at the place of occurrence at the time of incident is highly doubtful in view of the fact that he was neither named as a witness in the FIR nor the PW-1 or PW-2 have stated in their evidence about his presence at the place of occurrence at the time of the incident and also keeping in view the inconsistencies, contradictions, omissions and improvements made by him in his evidence. The oral evidence is liable to be discarded also on the ground that none of the eye witnesses have come up with any explanation for their failure to disclose the names of the assailants to the police officials who had reached the place of occurrence immediately after the incident and at least PW-1 and PW-2 had remained in touch with them continuously till the lodging of the FIR.

He also submitted that the alleged recovery of crime weapon, live cartridge and one Bajaj Platina Motorcycle which was not even hidden, on the pointing out of the appellant No. 2 Dharmendra Pandey from an open piece of land which was accessible to the public at large does not inspire any confidence specially in view of the fact that both the witnesses of recovery Gopal Chandra Pandey, PW-4 and Mukesh Kumar PW-5 are admittedly close relatives of the informant and enemical towards the appellants. The prosecution further failed to connect the crime weapon allegedly recovered at the instance of the appellant No. 2 with the murder of the deceased by any cogent evidence.

He lastly submitted that under facts and circumstances of this cased, the conviction of the appellant and the awarded them to the extreme penalty of death if maintained shall amount to travesty of justice.

Per contra Sri Akhilesh Singh, learned Government Advocate submitted that the delay in lodging the FIR having been satisfactorily explained by PW-1 Anil Kumar Pandey which was rightly found plausible by the trial court, the prosecution story is not liable to be disbelieved or discarded only on the ground of delay. He further submitted that all the three witnesses of fact fully corroborated the prosecution case as set forth in the FIR and the defense despite subjecting them to long and grueling cross examination failed to elicit anything from them which could discredit the prosecution case. The appeal lacks merit and is liable to be dismissed.

We have very carefully considered the submissions made by learned counsel for the appellants and learned AGA for the State and perused the law reports cited by them.

The issues which require to be examined and adjudicated upon in this appeal inter alia are that whether the prosecution case which has been supported by all the three so called eye witnesses examined during the trial is liable to be thrown out in a whole sale manner on the ground of virtually unexplained and inordinate delay of about thirty hours in lodging the FIR and that whether any credibility can be attached to the evidence of the PW-1, PW-2 and PW-7 who in their evidence tendered during the trial had stated with complete unanimity that the appellants had fired at the deceased, with their firearms and caused injuries to them which proved fatal, in the background of the inordinate delay in lodging the FIR.

Before proceeding to scrutinize the oral evidence lead by the prosecution for deciding the aforesaid twin issues, we consider it appropriate to examine the case law on the aforesaid two issues.

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."

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 a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.

We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs. State of U.P. (, 1991 Suppl.(1) SCC 372; Tara Singh vs. State of Punjab (, 1991 Suppl.(1) SCC 536); Jamna vs. State of U.P. (, 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 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.""

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 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 veracity. 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 are attributed to them as mentioned above. Therefore we see absolutely no grounds to interfere. The appeal is, therefore, dismissed."

In State of Himachal 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."

Thus the legal position which emerges after going through the catena of judgments 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.

So far as the credibility of the FIR version in this case is concerned, learned counsel for the appellants has questioned its reliability by pleading that although the incident in question in which three persons were shot dead had taken place at 3.30 p.m. on 27.09.2011 inside Rajat P.C.O. and the same was witnessed by a large number of villagers including the real brother of the deceased Pankaj Pandey, PW-1 Anil Kumar Pandey and PW-2 Lalta Prasad Pandey father of the deceased Mantu @ Shiv Prakash but the FIR of the incident was lodged on the next day at about 10.00 p.m. by PW-1 Anil Kumar Pandey. From the perusal of the FIR, it transpires that the same is bereft of any explanation whatsoever for the inordinate delay of almost 30 hours in lodging the same.

Thus in order to ascertain whether the prosecution has come up with any satisfactory explanation for the inordinate delay in lodging the FIR and whether any reliance can be placed on the evidence of PW-1, PW-2 and PW-7 who have supported the prosecution case in view of the inordinate delay in lodging the FIR for holding that the prosecution has proved its case beyond reasonable, we now proceed to scrutinize the oral and documentary evidence on record.

Relevant extract of the statement of Dr. Arvind Kumcr, PW-11 who along with one Dr. Chaudhary had done the autopsy of the dead body of the deceased Mantu @ Shiv Prakash and proved the post mortem report of the deceased Mantu @ Shiv Prakash Ex. Ka-10 during the trial is being reproduced herein below:-

Similarly the material portion of the evidence of Dr. Sanjay Gupta, PW-13 who had conducted the autopsy of the dead body of the deceased Pankaj Pandey and proved his post mortem report Ex.Ka-12 is reproduced herein below:-

PW-12 Dr. Akhilesh Chandra, who had performed the autopsy of the dead body of the deceased Ratnakar Pandey on 01.10.2011 and approved his post mortem report Ex. Ka-11 during the trial. Relevant extract of his statement recorded during the trial is being reproduced herein below:-

Thus from the perusal of the post mortem reports of the deceaseds'' Mantu @ Shiv Prakash, Pankaj Pandey and Ratnakar Pandey and the evidence of PW-11, PW-3 and PW-12 it is proved that all the three deceased died as a result of firearm injuries received by them in the incident. The deceased Mantu @ Shiv Prakash had received one firearm wound of entry with corresponding exit wound while deceased Pankaj Pandey had sustained one firearm wound chest cavity deep and a corresponding wound of exit together with an abrasion in his left leg below. According to the post mortem report of Ratnakar Pandey Ex.Ka-11 he had received one firearm wound of entry in his abdomen cavity deep and stitched wound of 25 cm. in the stomach and a abrasion with contusion ion the upper part of his left leg was also noticed.

We now proceed to scan the statement of PW-1, PW-2 and PW-7, the eye witnesses examined by the prosecution for proving its case and for ascertaining whether their evidence can be considered trustworthy and reliable in the face of the inordinate delay in lodging the FIR giving ample time for fabrication for connecting the appellants with the ghastly.

PW-1 Anil Kumar Pandey stated as follows in the second paragraph of his statement recorded during the trial.

Similarly PW-2 Lalta Prasad Pandey in paragraphs 45 and 46 of his statement recorded during the trial deposed as hereunder:-

Likewise PW-7 Ravindra Nath Pandey in third paragraph of his statement recorded during the trial stated as hereunder:-

Thus what follows from the perusal of the relevant extracts of the evidence of PW-1, PW-2 and PW-7, is that all the prosecution witnesses of fact uniformly stated that the appellants along with two other accused Nanhe and Dharmendra son of Vijay Bahadur had come on two motorcycles to the place of incident and had opened fired at the deceased who were sitting inside the Rajat PCO except PW-7 who also named one Manish also as an accused who had fired at the deceased. Since there was an inordinate delay of 30 hours in making the FIR, the Court is to look at the causes for it and examine whether the causes are such which are not attributable to any effort to concoct the version and for this purpose we will have to look into the evidence tendered by PW-1 and PW-2 in this regard.

Relevant extracts of statement of PW-1 recorded before the trial court are reproduced herein below.

Thus what follows from the reading of the evidence of PW-1 Anil Kumar Pandey is that although at the time of occurrence he was having a cell phone with him but he did not inform the police about the incident by his cell phone. His evidence further reveals that he was in constant touch with the police personnel of the Haraiya police station, who had escorted the deceased Pankaj Pandey in an Ambulance of Haraiya police station from Haraiya to District Hospital Basti and from District Hospital Basti to Lucknow where he was referred for further treatment to Ford Hospital where he died later and he was also present at the time of holding of inquest of deceased Pankaj Pandey but PW-1 did not disclose the name of the culprits to the police. Even after returning from Lucknow with the dead body of his brother Pankaj Pandey to his village at about 8.00 p.m. he did not show any inclination either to disclose the names of the assailants to the police personnel of P.S. Paikolia, Cantt., Haraiya, Gaur and Parasaraipur who were present there nor to the villagers, when they inquired from him about the identity of the persons who had committed the murder, he replied that he had nothing to say as Pankaj has died and he went to lodge the FIR only after being persuaded by the police persons who were talking to him.

Upon perusal of the evidence of the PW-1 (informant), we find that no satisfactory explanation whatsoever has come forth in his testimony either for the inordinate delay of 30 hours in lodging the FIR either or his failure to disclose the identity of the culprits although the police of P.S. Haraiya was with him from the time when his brother deceased Pankaj Pandey was taken from Haraiya to District Hospital Basti and from there to Lucknow, which indicates that the identity of the culprits/assailants was not known to him till he had returned to his village. The faint explanation given by PW-1 in his evidence for not lodging of the FIR by PW-2 Lalta Prasad to the villagers that they were perhaps waiting for PW-1 to return does not at all appears to be plausible.

The evidence of PW-2 Lalta Prasad is also bereft of any explanation for his failure to lodge the FIR of the incident or to disclose the names of the culprits at the first opportunity either to the villagers or the police personnel who had reached the place of occurrence immediately after the incident although admittedly he had neither gone to Haraiya or to District Hospital Basti along with his son Mantu Pandey @ Shiv Prakash who was declared dead by doctors of the District Hospital Basti. Relevant extracts of his statement are being reproduced hereinbelow.

The evidence of PW-2 reveals that even he has failed to come up with any explanation for his not lodging the FIR at the earliest although he had remained in the village throughout and had not gone to Lucknow with the informant Anil Kumar Pandey, his evidence also shows that he was also consistently in touch with the police personnel who were present in village Haraiya but even he did not disclose the names of the assailants.

The fact that PW-1 was constantly in touch with the police personnel right from the time when the injured were taken from Haraiya to District Hospital Basti and from where injured Pankaj Pandey and Ratnakar Pandey were taken to Lucknow for specialized treatment and till the death of Pankaj Pandey in Ford Hospital and also at the time when the inquest of deceased Pankaj Pandey was conducted in Ford Hospital and PW-2 Lal Bahadur who had stayed back in the village after the incident was also in touch with the police and witness of inquest of his son but even he did not disclose the identity of the assailants is also borne out from the reading of the evidence of PW-10 S.I. Kuldeep Chandra, PW-14 S.I. Ravi Kumar Rai and PW-15 SI Dharamvir. Relevant extracts of the testimony of PW-10, PW-14 and PW-15 are being extracted herein below:-

PW-14 Ravi Kumar Rai, P.S. Etawah, District Siddharthnagar:-

PW-15, S.I. Dharmveer, P.S. Kaisarbagh, Lucknow:-

Another interesting feature of this case is that although PW-7 has been examined as eye witness of the occurrence but his presence at the place of occurrence at the time of the incident is extremely doubtful as neither he is named as eye witness in the FIR nor PW-1 nor PW-2 in their evidence have referred to his presence at the place of incident, and he further nominated one Manish also as accused in his evidence although the name of Manish neither figures in the FIR as an accused nor in the evidence of PW-1 and PW-2. His statement under Section 161 Cr.P.C. was also recorded after more than ten days of the incident. Hence his evidence is wholely untrustworthy and unreliable, Subhash the real brother of deceased Ratnakar Pandey who according to PW-2 was the eye witness of the incident was neither examined as witness nor any reason has come forth with regard to his failure to lodge the FIR of the incident. There is no evidence that Subhash had either accompanied his brother Ratnakar Pandey either to District Hospital Basti or to Lucknow or that he was present in Gandhi Memorial & Associate Hospital, Lucknow where the inquest of the dead body of his brother was done as his name does not figure in the list of inquest witnesses.

The instant case is not one of those cases where the relatives of the deceased claim that they were ignorant of the need of informing the police about the crime without any lapse of time or the distance between the place of occurrence and the police station was so long that due to lack of proper transport facilities the informant could not reach the police station for lodging the FIR within a reasonable time. It is true that when an incident of such magnitude as of the present case takes place, first and the foremost priority of the relatives is to take immediate steps for providing best medical treatment to their injured kiths and kin to save their lives but even if the aforesaid latitude is given in the present case, we find that apart from PW-1 Anil Kumar Pandey, the real brother of deceased Pankaj Pandey neither Lalta Prasad PW-2 the father of the deceased Mantu @ Shiv Prakash nor Subhash, the real brother of deceased Ratnakar Pandey had accompanied their injured kiths and kins either upto the District Hospital Basti or to Lucknow. On the other hand there is evidence of PW-2 Lalta Prasad Pandey himself on record that he was present at the time of the inquest of his son Mantu @ Shiv Prakash which was conducted by S.I. Ravi Kumar Rai, S.H.O., Etawah, District Siddharthnagar and in the village throughout after the incident and was in touch with the local police which had reached the place of occurrence and had remained present there till the lodging of the FIR by PW-1 Anil Kumar Pandey but he neither disclosed the identity of the appellants nor made any efforts to get the FIR of the incident lodged although he professed to knew the identity of the accused. Similarly PW-1 Pankaj Pandey also had several opportunities of disclosing the identity of the accused to the police while he accompanied the injured Pankaj Pandey and Ratnakar Pandey from the place of the incident to the District Hospital Basti and thereafter to Lucknow along with the police ambulance and escort provided by P.S. Haraiya but even he strangely kept quite.

We have already noted earlier that only the explanation which has come in the evidence of PW-1 for not filing of the FIR by the PW-2 that perhaps he was waiting for PW-1 to return from Lucknow whereas, no such explanation was given by PW-2 in his evidence, is wholly unacceptable.

In view of the foregoing discussion we are constrained to observe that in the instant case, the prosecution has failed to come up with any satisfactorily explanation for the inordinate delay not only in lodging the impugned FIR but also for the failure of PW-1 and PW-2 to disclose the identity of the accused to the police although they were in constant touch with the police from the time of the incident and till the lodging of the FIR. The aforesaid omission on the part of the PW-1 and PW-2 gives rise a strong inference that the so called eye-witnesses had either not seen the incident or even if they had witnessed the incident they had not been able to identify the assailants and the delay of 30 hours in lodging the FIR was utilized by the informant to frame the appellants as accused in the present case as enmity between the families of deceased Pankaj Pandey and the appellant Surya @ Kuldeep Pandey emanating from the fact that mother of appellant No. 1 Surya @ Kuldeep Pandey had opposed the candidature of Reeta sister in law (Bhabhi) of PW-1 Anil Kumar Pandey in the election for the office of Gram Pradhan held about one year before the incident is admitted. All the three witnesses of fact in their evidence tendered during the trial have unanimously admitted that there was enmity between the families of Kuldeep Pandey appellant No. 1 and Pankaj Pandey.

The prosecution has further failed to prove that the semi jacketed fired bullet recovered from the dead body of deceased Ratnakar Pandey which was marked by the Forensic Expert in his report Ex. Ka-16 as EB-5 was fired from either of the two 7.65 mm pistols allegedly recovered from the possession of the appellant No. 1 at the time of his arrest and on the pointing out of the appellant No. 2 Dharmendra Pandey from an open piece of land, which were marked by him as 2/2012 and 1/2012. The Forensic Expert in his report gave a definite opinion that EB-5 was not fired from the pistol marked as 1/2012 and but as regard EB-5 being fired from the pistol marked as 2/2012, he was unable to give any definite opinion due to insufficient marks for comparison although the Balastic Expert was of the opinion that six pieces of 7.65 mm cartridges, marked as EC-1 to EC-6, four pieces of jacketed fired bullet marked as EB-1 to EB-4, EC-1, EC-2, EC-3 and EC-4 were fired from the pistol 2/2012, EC-5 and EC-6 were fired from the pistol 1/2012 and EB-3 and EB-2 were fired from the pistol marked as 2/2012. The aforesaid articles were recovered from the place of occurrence, on the pointing out of appellant No. 1 from an open piece of land and from the possession of appellant No. 1 at the time of his arrest. No evidence is forthcoming even remotely indicating that firearm injuries sustained by three deceased could be attributed to the firearms recovered from the appellants.

Another salient feature of this case is that all the witnesses of recoveries either of the empty cartridges or helmet from the place of occurrence or bajaj platina motorcycle, one pistol and live cartridges at the pointing out of the appellant No. 2 Dharmendra Pandey apart from being chance witness appear to be partisan and interested witnesses. Of the two witnesses of recovered articles from the place of occurrence Mahesh Pandey and Gaurish Nandan son of A.P. Pandey, Mahesh Pandey who was examined as PW-6 is the cousin brother of the father of the appellant No. 1 Surya Pandey, who had filed a civil suit against him and this fact has been admitted by Anil Kumar Pandey, PW-1 at page 33 of his evidence. As far as Gaurish Nandan is concerned on page 33 in para 2 of his evidence Anil Kumar Pandey PW-1 has deposed that grand father of the accused appellant No. 1 Surya @ Kuldeep Pandey had filed a civil suit against the father of the Gaurish Nandan. Similarly a FIR under Section 308 IPC was lodged by appellant No. 2 Dharmendra Pandey against Gopal Chandra PW-4, witness of recovery of bajaj platina motorcycle, one pistol and two live cartridges from an open piece of land at the pointing out of the appellant not. 2. The aforesaid fact was also admitted by Anil Kumar Pandey, PW-1, Gopal Chandra Pandey, PW-4 and PW-7 Ravindra Pandey in their statements recorded duting the trial. Likewise Mukesh Kumar Pandey PW-5, the witness of recovery of the articles on the pointing out of the appellant No. 2 from an open piece of land happens to be the first cousin brother of PW-1 Anil Kumar Pandey and the aforesaid fact was also admitted by PW-1 Anil Kumar Pandey in para-1 of page 32 of his evidence recorded during the trial.

In view of the above, the recovery of the numerous incriminating articles either from the possession of the appellant No. 1 or on the pointing out of the appellant No. 2 Dharmendra Pandey as alleged by the prosecution does not inspire much confidence.

Thus, after having carefully considered the submissions made by learned counsel for the appellants and scrutinized the evidence on record and perused the law reports cited by learned counsel for the parties, we hold that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts and in view of the peculiar facts and circumstances of the case the appellants are entitled to benefit of doubt.

As a result, this appeal succeeds and is allowed. The impugned judgement dated 21.05.2015 and the order dated 26.05.2015 passed by Additional Sessions Judge, Court No. 3, Basti are set aside and in view of the findings recorded hereinabove, Reference No. 05 of 2015 stands rejected. The appellants Surya Pandey @ Kuldeep Pandey and Dharmendra Pandey who are in jail, stand acquitted of the charges framed against them and shall be released forthwith, if not wanted in any other case.

However, keeping in view the provisions of Section 437-A Cr.P.C., the appellants Surya Pandey @ Kuldeep Pandey and Dharmendra Pandey are directed to forthwith furnish personal bonds in the sum of Rs. One lac and two reliable sureties each in the like amount before the trial court (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgement or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon''ble Supreme Court.