# Chandresh Yadav & Ors v. State of U.P

- **Citation:** (2020) 8 ILRA 556
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Criminal Appeal No. 1101 of 2011
- **Bench:** Bala Krishna Narayana, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandresh-yadav-ors-v-state-of-u-p-46062
- **Pages:** 17

## Headnote

A.G.A.
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
557
Delay in lodging F.I.R. - No satisfactory
explanation/Reason for not lodging the F.I.R.
more than 30 hours that too when the Police
Station was barely 10 km. from the place of
occurrence.

Several discrepancies and contradictions in
the deposition of P.W. 1 and P.W. 2 claiming
to be eye witness viz-a-viz the testimonies of
doctor, who medically treated the injured
persons and prepared the autopsy report.

The presence of Informant on the place of
occurrence is highly doubtful.

There is no compatibility or corroboration in
testimonies of witnesses with medical opinion.

Appeal Allowed. (E-2)

## Text

_Characters 0–39,866 of 54,209. This is a partial read: ask again with offset=39866 for what follows._

556 INDIAN LAW REPORTS ALLAHABAD SERIES
must
have
been
sudden
and
unpremeditated and the offender must have
acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or
acted in a cruel manner or unusual. It is clear
from the material on record that the incident
had taken place all of sudden and we are of
the opinion that the appellant-accused had not
taken any undue advantage or acted in a cruel
or unusual manner. Where, on a sudden
quarrel, a person in the heat of the moment
picks up a weapon which is handy and causes
injuries, one of which proves fatal, he would
be entitled to the benefit of this Exception
provided he has not acted cruelly.

36. Thus, in entirety, considering the
factual scenario of the case in hand, the
evidence on record and in the background of
the legal principles laid down by the Apex
Court, the inevitable conclusion is that the
attack on the deceased was not preplanned by
the appellants-accused and it was not a cruel
act in an unusual manner and the accused did
not take undue advantage of the deceased.
The incident had taken place in the heat of
passion and all the requirements under
Section 300 Exception 4 of the IPC have
been satisfied. Therefore, the benefit of
Exception 4 under Section 300 IPC is
attracted to the fact situations and the
appellant-accused are entitled to this benefit.

37.

Considering
the
factual
background and legal position, we are of
the view that the appellants are liable to
be convicted under Section 304 Part II of
I.P.C. instead of Section 302 of I.P.C.
However, their conviction under Sections
323 and 325 IPC is upheld.

38. So far as the sentence part is
concerned, it was pointed out that
accused appellants are in jail since last
about eight years, considering all aspects
of the matter, it appears that ends of
justice would be served if they are
sentenced to the imprisonment of ten
years under Section 304 Part-II of I.P.C.
with fine of Rs. 500, one year R.I. with a
fine of Rs. 500/- under Section 325 I.P.C.
and three months R.I. under Section 323
I.P.C. All the sentences shall run
concurrently. We order accordingly. In
case of non payment of fine, the accused
persons shall undergon six months
rigorous imprisonment in addition of the
maximum period of sentence of 10 years.

39. The appellants are in jail. They
be set free after the period of conviction
is over, if not required in any other case.

40. The appeal is accordingly
disposed of in the above terms.
----------
(2020)08ILR A556
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal No. 1101 of 2011
And
Criminal Appeal No. 1100 of 2011
And
Criminal Appeal No. 1099 of 2011

Chandresh Yadav & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri L.P. Singh, Sri Ghan Shyam Das, Sri
Mayank Srivastava, Sri R.B. Maurya, Sri
Sudhakar Pandey

Counsel for the Opposite Party:
A.G.A.
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
557
Delay in lodging F.I.R. - No satisfactory
explanation/Reason for not lodging the F.I.R.
more than 30 hours that too when the Police
Station was barely 10 km. from the place of
occurrence.

Several discrepancies and contradictions in
the deposition of P.W. 1 and P.W. 2 claiming
to be eye witness viz-a-viz the testimonies of
doctor, who medically treated the injured
persons and prepared the autopsy report.

The presence of Informant on the place of
occurrence is highly doubtful.

There is no compatibility or corroboration in
testimonies of witnesses with medical opinion.

Appeal Allowed. (E-2)

(Delivered by Hon'ble Rahul Chaturvedi,
J.)

1. A cluster of three connected
appeals filed by different set of accusedappellants questioning the legality and
validity of common judgement and order
of conviction dated 25.01.2011 wherein
learned III-Additional Sessions Judge,
Ballia while deciding Session Trial
No.42 of 2007 (State of U.P. vs.
Chandresh Yadav and 7 others) has
convicted
all
the
eight
accusedappellants. This Court proposes to
adjudicate all three above appeals by a
common judgement with the assistance
of
the
submissions
and
learned
arguments raised by the counsel for the
rival parties.

2. Heard Shri Kamal Krishna,
learned
Senior
Counsel
who
has
spearheaded the battery of seasoned
lawyers namely, Shri Ghan Shyam Das,
Shri Shashi Bhushan, Shri Sudhakar
Pandey and Shri Mayank Srivastava for
the appellants and Shri H.M.B. Sinha,
learned
Additional
Government
Advocate and Shri Awdhesh Shukla,
learned State Law Officer at length.

3. As mentioned above, out of the
aforementioned three appeals, we are
also adjudicating Appeal No.1101 of
2011 (Chandresh Yadav and others vs.
State of U.P.) as

4. The appellants of these appeals
are jointly and collectively assailing the
judgement
of
conviction
dated
25.01.2011
passed
by
learned
IIIAdditional Sessions Judge, Ballia in
Session Trial No.42 of 2007 In re : State
of U.P. vs. Chandresh Yadav and 7
others, convicting all eight appellants
under sections 147, 148, 302 I.P.C. read
with 149, 504, 506 I.P.C., Police StationReoti, District-Ballia. While deciding the
above mentioned session trial, learned
Sessions Judge after recording the
conviction to all the named accused
sentenced all of them u/s 302/149 I.P.C.
for life imprisonment with a fine of
Rs.5000/- and in default of payment of
fine, six months additional imprisonment.
Similarly under section 147 I.P.C. one
year rigorous imprisonment and under
section 148 I.P.C. two years rigorous
imprisonment was sentenced, acquitting
the appellants under sections 504 and 506
I.P.C. All the sentences have been
directed to run concurrently.

5. Before touching the merits of the
case, it is imperative to have a eagle's eye
view to the entire prosecution case for
just and proper adjudication of facts of
the
case
and
the
testimonies
of
prosecution witnesses in support thereof.

6. PROSECUTION VERSION IN
FIR :- The present criminal case
triggered after lodging the F.I.R. by one
558 INDIAN LAW REPORTS ALLAHABAD SERIES
Rajan Yadav s/o Dhaneshwar Yadav on
06.10.2006 at 7.35 A.M. referring to the
incident said to have occurred during
intervening night of 4/5.10.2006 around
01.00 in the dark hours of midnight. The
scribe of this F.I.R. was one Shri Girish
Kumar Mishra, member of Kshetra
Panchayat Muni Chhapra, District-Ballia.
Police Station Reoti was barely ten
kilometers
far
from
the
place
of
occurrence (Rampur Masrik). This F.I.R.
was registered as Case Crime No.93 of
2006 under sections 147, 148, 149, 304,
308, 324, 323, 504, 506 I.P.C. against as
many as eight named persons attributing
an omnibus and general role of allegedly
assaulting upon Ram Badan Yadav (D-1)
and Tarkeshwar Yadav (D-2) initially
making them seriously injured, who later
on on different occasions took their last
breath.

7. From the F.IR., given by Rajan
Yadav, it reveals that, he claims that the
informant is the permanent resident of
Village
Rampur
Masrik
of
Police
Station-Reoti, District-Ballia. In the north
of river Ghaghra, he is having a small
cottage ("DERA") where he was engaged
in agriculture and also having stock of
cattle. During intervening night of
4/5.10.2006 around 01.00 in the dead
hours of night, the informant along with
his brothers Ram Badan Yadav (D-1) and
Tarkeshwar Yadav (D-2) were asleep.
During those dead hours of night, he
overheard
certain
exotic
cries
and
immediately thereafter the informant
beheld that the named accused persons
namely, (i) Parasuram Yadav s/o Dharm
Nath Yadav, (ii) Chandresh Yadav s/o
Jairam Yadav, (iii) Ram Chandra @
Malik Yadav s/o Parasuram Yadav, (iv)
Joginder Yadav s/o Jagdev Yadav, (v)
Shriram Yadav s/o Dharm Nath Yadav
and (vi) Rajan Yadav s/o Sudama Yadav,
all resident of Rampur Masrik along with
(vii) Rama Shankar Yadav s/o Radhey
Shyam r/o Dataha and (viii) Bira Yadav
s/o Sarju Yadav r/o Alakh Diari have
jointly, mercilessly and indiscriminately
assaulted with their respective weapons
of assault, namely, lathi, danda and
gandasa upon his brothers named above,
resultantly,
both
the
brothers
got
seriously injured and turned unconscious.
Upon hearing screams and cries, number
of persons gathered at the place of
occurrence. The assailants took to their
heels from the site, hurling filthy abuses
and extending threats to their lives by
opening fires from their Katta (country
made
pistol).
At
the
stage
of
unconsciousness, the injured were taken
to CHC, Reoti and after providing first
aid, they were referred to District
Hospital, Ballia. During treatment at
District Hospital Ballia, one of the
injured, Ram Badan Yadav lost his life
on
05.10.2006
itself,
however,
Tarkeshwar Yadav underwent treatment
at District Hospital. This incident was
witnessed by Shri Kishun Yadav s/o
Jangali Yadav and Ganga Dayal Yadav
S/o Chhatthu Yadav. It would not be out
of context herein to mention that during
the course of treatment Tarkeshwar
Yadav (D-2) too, took his last breath on
10.10.2006 without getting recorded any
dying declaration.

8. It is borne out from the record of
the case that on the basis of written
Tehrir (Report) (Ex. Ka-1) submitted by
Dr. Girish Kumar Mishra, Member
Kshetra Panchayat, Muni Chapra Ballia
on behalf of informant Rajan Yadav
(P.W.-1), one Constable Rajdeo Yadav
(P.W.-4) penned down Chik FIR (Ex.
Ka-3) and registered it as Case Crime
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
559
No.93/2006, undere sections 147, 148,
149, 304, 308, 324, 323, 504, 506 I.P.C.,
P.S.-Reoti, District-Ballia vide G.D.
No.10 at 7.35 AM dated 06.10.2006.

9. After registering the above
F.I.R.,
Shri
Atma
Yadav
(P.W.-7)
S.H.O., P.S.-Reoti, Ballia, himself has
started exploring and investigating into
the matter. During the investigation he
recorded the statements u/s 161 Cr.P.C.
of
the
Constable
scribe
of
First
Information Report, the first informant
Rajan Yadav, thereafter reached the spot
of
occurrence
with
his
colleague
Constables, prepared site plan (Ex. Ka
12)
in
his
own
handwriting
and
signatures.
During
course
of
the
investigation, the Investigating Officer of
the case prepared recovery memo of
blood stained and plain earth (Ex. Ka
13). Besides above, a torch belonging to
Shri Kishun and Ganga Dayal Yadav was
also recovered and was exhibited as Ex.
Ka-2 dated 19.11.2006. On 10.10.2006
the Investigating Officer of the case
effected the arrest of the named accused
Chandresh Yadav, Ram Chand @ Malik
and recorded their statements. After
getting information from the informant
on
15.10.2006,
that
his
brother
Tarkeshwar Yadav took his last breath on
10.10.2006 at District Hospital, Ballia,
the Investigating Officer Shri Atma
Yadav
(P.W.-7)
geared
up
the
investigation and arrested Parashuram
Yadav on 20.10.2006 from Reoti Bus
Stand.
During
custody,
Parashuram
Yadav, an accused, confessed his guilt
before him and offered the recovery of
weapon of assault. Accordingly, the
accused Parashuram Yadav, piloted the
police party to his residence and from
south-west of his 'SAHAN', under the
heap of straw, two Lathi-Dandas were
recovered at his pointing out, revealing
that the alleged weapon of assault was
used by him and his accomplice
Chandresh Yadav s/o Jairam. The alleged
recovery memo of Lathi-Danda having
no blood stained over it, was prepared on
20.10.2006 and exhibited as "Ex. Ka-14".
Besides this, the site plan of alleged
recovery was also prepared and exhibited
as "Ex. Ka-15".

Since two persons lost their lives
in this transaction of assault, the injury
report was prepared by Dr. B. Narayan
(P.W.-3) on 05.10.2006. The injury report of
Ram Badan Yadav (Ex. Ka-3) and
Tarkeshwar Yadav (Ex. Ka-4) are part of
the paper book. After the demise of Ram
Badan Yadav on 5.10.2006 and on the tip
off by Dilip Kumar, the ward boy of District
Hospital Ballia, the inquest report (Ex. Ka
18) was prepared on 06.10.2006 at the
Hospital itself. The inquest report of Ram
Badan Yadav was prepared on 06.10.2006
having five Panchs, out of them three
claimed themselves to be eye-witnesses of
the incident, namely Bachcha Lal Yadav,
Dhaneshwar Yadav and Rajan Yadav
(Informant) and in their opinion, recorded in
the inquest report of Ram Badan Yadav, in
the dead hours of intervening night of
4/5.10.2006 while they were asleep in the
Dera on the bank of river "SOME
UNKNOWN
MISCREANTS"
brutally
assaulted upon the injured persons and
during course of treatment Ram Badan
Yadav lost his life. Similarly, after the death
of another deceased Tarkeshwar Yadav on
10.10.2006, his inquest was also prepared at
District Hospital Ballia on 10.10.2006 itself
(Ex. Ka-6). After collecting all the materials
and recording the statements of as many as
21 witnesses in case-diary, the Investigating
Officer prepared his report under section
173(2) Cr.P.C. and submitted charge-sheet
560 INDIAN LAW REPORTS ALLAHABAD SERIES
on 01.12.2006 (Ex. Ka-16) against all the
named accused persons u/s 147, 148, 149,
308, 304, 325, 504, 506 I.P.C.

10. We have keenly perused the injury
reports of the injured/deceased (D-1 and D2). The injury report was prepared by Dr. B.
Narayan (P.W.-3) on 05.10.2006 itself. The
injury report of Ram Badan Yadav (D-1)
reveals that he was medically examined on
05.10.2006 at 10.30 AM and following
injuries were found over his person :

(i) Lacerated wound 3 cm x 1
cm, muscle deep on the right side of
head, 7 cm above right eyebrow, margin
red and swollen.

(ii) Lacerated wound 3 cm x
0.5 cm muscle deep on left side of head,
4 cm above left eyebrow. The margins
were red and swollen.

(iii) Lacerated wound 5 cm x 1
cm, muscle deep, on the middle of the
head, 13 cm above right ear.

(iv) Contused swelling 6 cm x
4 cm on the left forearm. 4 cm above the
left wrist. This injury was kept under
observation and advised x-ray.

(v) Lacerated wound 2 cm x 0.5
cm., muscle deep in between right ring
and little finger.

vi) Lacerated wound 6 cm x 1
cm, deep bone on the right leg , 13 cm
below the right knee.

According to the opinion of
doctor, all the injuries were caused by
hard and blunt object. Injury No.(iv) was
kept under observation and advised Xray. Rest of the injuries were simple in
nature and about half day duration.
Whereas the injury report of Tarkeshwar
(D-2) was also prepared on the same day
i.e. 5.10.2006 at 10.45 AM and as many
as following seven injuries were found
over his person :

(i) Lacerated wound 7 cm x 1
cm muscle deep on the right side of head,
10 cm above right eyebrow. Margins
were red and swollen. This injury was
kept under observation and advised Xray.

(ii) Lacerated wound 3 cm x 1
cm muscle deep in between left and ring
finger. Margins were red and swollen.

(iii) Contused swelling 9 cm x
7 cm on the back of left palm. Margins
were red and swollen. This injury was
kept under observation and advised Xray.

(iv) Lacerated wound 2 cm x 1
cm muscle deep on the right leg, 10 cm
below the right knee.

(v) Lacerated wound 2 cm x 1
cm in front of left leg, 10 cm above left
ankle.

(vi) Contused swelling 6 cm x
4 cm on the back of right foot, reddish in
colour. This injury was kept under
observation and advised X-ray.

(vii) Lacerated wound 1 cm x 1
cm on top of right 3rd toe.

According to the doctor, all the
injuries were caused by hard and blunt
object. Except injury nos.(i), (iii) and
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
561
(vi), all were found to be simple in nature
and could have been caused within the
duration of half day.

During cross-examination, Dr.
B. Narayan (P.W.-3) states that though
the injured persons were brought by
Rajan Yadav (Informant-P.W.-1) but he
did not disclose anything or provided any
clue about the real cause of the injuries,
allegedly sustained by his brothers,
though he strangely claims to be the eyewitness of the incident.

11. During course of treatment both
the injured persons Ram Badan Yadav
(D-1) and Tarkeshwar Yadav (D-2) lost
their lives. Ram Badan Yadav (D-1) died
on 05.10.2006 around 4.55 PM whereas
Tarkeshwar
Yadav
(D-2)
died
on
10.10.2006
around
3.40
AM.
The
autopsy report of both the deceased
persons were exhibited as "Ex. Ka-5"
dated 6.10.2006 and "Ex. Ka-7" dated
10.10.2006 respectively.

(I) Dr. J.P. Pandey (PW-5)
prepared the postmortem report of Ram
Badan Yadav (D-1) whereas autopsy
report of Tarkeshwar (D-2) was prepared
by Dr. Pradeep Kumar Singh (PW-8)
under their seal and signatures.

The postmortem report of Ram
Badan Yadav (D-1) reveals nine antemortem injuries as against six injuries
shown in the injury report, which are as
follows:-

Ante-Mortem Injuries :

(i)
Stitched
wound
(two
stitches) on the head, above 7 cm left ear.
After opening stitches, 3 cm x 0.2 cm
scalp deep. Margins were irregular.

(ii) Abraded contusion 3 cm x
3.5 cm on the left forehead, 2 cm below
injury no.(i).

(iii) Stitched wound (three
stitches) 4 cm long on the left side of
head, 10 cm above left ear. After opening
stitches, 4 cm x 0.5 cm deep bone.
Margins were irregular.

(iv) Abrasion 2.5 cm x 1.2 cm,
above the left spinal cord, 1 cm from the
middle of the spinal cord.

(v) 6.5 cm below the nipple on
the left chest in an area of 6 x 7 cm.
Chest was sunken.

(vi) Stitched wound (one stitch)
2 cm on the left forearm, 8 cm below the
elbow. After opening stitch, it was 2 cm
x 0.2 cm muscle deep.

(vii)
Stitched
wound
(one
stitch) 2 cm to the side of elbow. After
opening stitch 2 cm x 0.3 cm bone deep.

(viii) Contusion 6 cm around
the forearm. After opening the wound,
both bones of below forearm were found
fractured.

(ix) Stitched wound 5 cm on
the front of right leg, 10 cm below the
knee.

Internal Examination : Rear
bone of the head was found fractured.
Brain and membrane were congested. All
the injuries were stitched ones thus no
definite opinion could be given regarding
weapon of assault, however, injury nos.2,
4, 5 and 8 could be caused by lathidanda. The cause of death is excessive
562 INDIAN LAW REPORTS ALLAHABAD SERIES
bleeding and on account of ante-mortem
injuries and hemorrhage.

(II) Dr. Pradeep Kumar Singh
(PW-8) penned down the autopsy report
of Tarkeshwar Yadav (D-2) which shows
that he has sustained five ante-mortem
injuries over his person. They are :

Ante-Mortem Injuries :

(i) Stitched wound on the right
side of head, 5 cm above the right ear.

(ii) Stitched wound 2 cm long,
21 cm above left knee.

(iii) Abrasion 2 cm x 1 cm on
the joint of left ankle.

(iv) Abrasion 1.5 cm x 0.5 cm,
10 cm below the right knee in the middle.

(v) Lacerated wound having
abrasion 3.5 cm x 3 cm on left palm of which
second metacarpal bone found fractured.

External Examination : An
average built body of young man a/a 30
years, having sign of rigor mortis, but no
sign of any decaying.

Internal Examination : His Brain
and right side of membrane blood was
found coagulated in his brain. Right
chamber of the heart was found empty.
Cause of death was haematoma (injury
no.1) resulting coma. Injury No.1 was
sufficient to cause death. Rest of all the
injuries were caused by hard and blunt
object, could be Lathi/Danda.

12. As mentioned above, the
Investigating Officer of the case, after
holding threadbare investigation into the
matter, recording the statements u/s 161
Cr.P.C. of as many as 21 witnesses,
arrived at the conclusion that all the
named accused persons are prima facie
involved for committing the offence
under sections 147, 148, 149, 308, 304,
325, 504, 506 I.P.C. and thus on
01.12.2006 the report under section
173(2) Cr.P.C. was submitted before the
learned Magistrate concerned. Since the
offence is exclusively triable by the court
of sessions and as such, the Magistrate
committed the matter for consideration
before competent sessions court i.e. IIIAdditional Sessions Judge, Ballia as
Session Trial No.42 of 2007 in re : State
of U.P. vs Chandresh Yadav and others.

13. Relying upon the material
collected by the Investigating Officer
during investigation and after hearing the
contesting parties on the point of
"charge",
learned
trial
Judge
on
11.07.2007 framed charge against all the
eight accused persons u/s 147, 148, 302
read with 149, 504, 506(2) I.P.C.

Accused persons pleaded not
guilty and claimed to be tried.

14. Prosecution in order to establish
their case and story against named
accused persons, have produced (a)
Rajan Yadav (PW-1 informant), (b)
Ganga Dayal Yadav (PW-2 eye-witness),
(c) Dr. B. Narayan (PW-3 the doctor who
treated the injured persons at threshold
stage), (e) Constable Rajdeo Yadav (PW4, prepared Chik FIR), (f) Dr. J.P. Yadav
(PW-5-the
doctor,
who
prepared
postmortem
report
of
Ram
Badan
Yadav), (g) Akhilesh Yadav (PW-6, the
Sub Inspector prepared the inquest of
Tarkeshwar Yadav on 10.10.2006), (h)
Shri
Atma
Yadav
(PW-7,
the
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
563
Investigating Officer of the case), (i) Dr.
Pradeep Kumar Singh-the doctor who
conducted the postmortem of Tarkeshwar
Yadav on 10.10.2006) and (j) Shri Ram
Manorath Rai (PW-9-proved the inquest
report of Ram Badan Yadav.

15. At the end, all the accused in
their respective statements u/s 313
Cr.P.C. have denied the prosecution
story, its genesis, supporting documents
and witnesses and stated that they were
falsely implicated on the ground of
previous animosity between them. In no
uncertain terms, they have challenged the
very presence of both the witnesses of
fact and the story spun by them
implicating all the named accused. In
their respective testimonies, they have
seriously
challenged
the
place
of
occurrence, the way and manner of
assault, their own identification by the
prosecution and lastly submitted that
entire prosecution story is figment of
imagination in which all the accused
were falsely roped in.

16.

Learned
Sessions
Judge
concerned, after scrutinizing all the
documents, testimonies of witnesses and
hearing the submissions of rival parties,
reached to the conclusion that the
accused-appellants were guilty for the
offence and as such, by impugned
judgement he convicted all the named
accused persons.

17. Shri Kamal Krishna, learned
senior counsel assailed the impugned
judgement primarily on two scores
namely, (i) unexplained delay in lodging
the FIR and (ii) major and material shift
and embellishments in the testimonies of
PW-1 and PW-2, who are witnesses of
fact, resultantly touching the core issue
i.e. factum of the assault by the accused
persons. Learned senior counsel has
tossed number of factual as well as legal
issues, questioning the authenticity of the
depositions
made
by
prosecution
witnesses, especially of the fact, which
are
allegedly
full
of
material
contradictions
and
embellishments,
causing serious dents to prosecution story
and
the
involvement
of
accusedappellants in the commission of offence.

Let
us
examine
these
heads
canvassed by learned Senior Counsel one
by one :-

18. DELAY IN FIR : - It is
contended by the learned senior counsel
for the appellant that according to the
prosecution story unfortunate incident
took place during intervening night of
4/5.10.2006 around 1.00 a.m. but its FIR
was got registered on 06.10.2006 at 7.35
a.m. at Police Station-Reoti, DistrictBallia. From the Chik FIR it is clear that
the distance between the place of
occurrence and the police station is
barely 10 kms. It is argued by the learned
senior
counsel
that
no
plausible
explanation is coming forth explaining
this inordinate delay, which puts a great
cloud of doubts over the prosecution
story.

19. The Court has got an
opportunity to assess and examine the
testimony of Rajan Yadav (PW-1) and
Ganga Dayal Yadav (PW-2), who are
"witnesses of fact". In examination-inchief, P.W.-1 Rajan Yadav stated that he
along with his brothers D-1 and D-2 was
sleeping in Dera and after hearing certain
unusual cries, he saw the named accused
persons
armed
with
lathi,
danda,
gandasa and country made pistol, were
indiscriminately
and
mercilessly
564 INDIAN LAW REPORTS ALLAHABAD SERIES
assaulting upon his brothers. He further
states in his deposition that Rama
Shankar Yadav and Bira Yadav were
carrying gandasa, whereas Yogendra
was having katta (country made pistol) in
his hand and rest of the accusedappellants were carrying lathi-danda, and
were assaulting by their respective
weapons upon his brothers Ram Badan
Yadav (D-1) and Tarkeshwar Yadav (D2). He claimed to have identified these
assailants in the moonlight. In the entire
examination-in-chief, there was not a
whisper explaining this delay in lodging
of the F.I.R. His cross-examination was
conducted on 18.9.2008 17.10.2008 and
05.11.2008. In his cross-examination
dated 05.11.2008, Rajan Yadav (PW-1)
submits that :

"vLirky ls Fkkuk ,d Ms<+
fdyksehVj dh nwjh ij gSA ?kk;yksa dh eS Fkkuk
jsorh ls gksrs gq, vk;k FkkA jsorh Fkkuk ij
njksxk th feys FksA njksxk th dks eSus mlh
le; crk fn;k Fkk fd esjs Hkkb;ksa dks fdl&2
us fdu&2 gfFk;kjksa ls ekjk vkt [kqn dgk fd
eSus njksxk th dks ;g ckrsa fnukad 06-10-06 dks
crk;k FkkA njksxk th dks esjs Hkkb;ksa dks
fdlus&2 ekjk ?kk;yksa dks cfy;k ykrs le;
blfy, ugh crk;k fd eS ml le; fn;kjs es
FkkA 5-10-06 dks eSus 8 cts lqcg tkdj njksxk
th dks lkjh ckrs crk fn;k FkkA eSus fjiksVZ
fxjh'k yky feJk ls fy[kok;k FkkA"

From the above testimony, it is
clear that though he met with the
concerned Daroga at the police station on
5.10.2006, still he did not bother to lodge
any FIR and it took another 24 hours to
weave, cook and narrate the story by
means of the FIR.

20. Another prosecution witness of
fact is Ganga Dayal Yadav (PW-2), who
is the real uncle of the deceased and
whose statement u/s 161 Cr.P.C. was
recorded after 15 days of the incident,
who claims to be an eye-witness of the
incident. In his cross-examination dated
20.11.2008, he stated that they are in
inimical terms with the accused from
earlier point of time. He further states in
his cross-examination that :

" rhu ?kaVs rd et:c ?kVuk LFky
ij gh jgsA mlds ckn ge yksx ?kk;yksa dks
ysdj jsorh pysA jsorh ge yksx yxHkx 8 cts
fnu esa igqapsA igys ge yksx ?kk;y dks ydj
Fkkus ij x;sA njksxk th ls ge yksxksa dh HksaV
gqbZA njksxk th dks ge yksxksa us crk fn;k Fkk
fd jke cnu o rkjds'oj dks fdlus&2 ekjkA
njksxk th us ?kk;yksa dks ns[kkA vkSj dgk fd
vLirky ys tkvksA ?kk;yksa ls dqN Hkh ugh
iwNk D;ksafd ?kk;y csgks'k FksA ?kk;yksa dh
vLirky es ejge iV~Vh jsorh vLirky esa
gqvkA eSus MkDVj lkgc ;k fdlh dks ugh
crk;k fd eqfYteku us ?kk;yksa dks ekjk FkkA eS
ogWk ls vius ?kj pyk vk;kA cfy;k eSa ugh
x;k FkkA "

21. On a close and keen analysis of
aforesaid cross-examination of P.W.-2,
Ganga Dayal Yadav, who is the real
uncle of the deceased, his conduct is
explicitly clear. He submits in his
deposition that they waited with injured
till dawn of 5.10.2006. They reached to
C.H.C. Reoti at 8 AM via police station,
Reoti. He shared all the information with
the police and name of assailants but did
not bother to lodge a formal F.I.R. It
seems to be a clandestine afterthought
story at this juncture. He claims to be an
eye-witness but has not divulged the
name of assailants to the doctor or
provided any clue to the doctor about the
incident and after providing the first aid
to the injured persons at CHC Reoti, he
astoundingly returned to his residence
calmly. It is strange and surprising that
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
565
out of the aforesaid two eye-witnesses,
one is the real brother and another is the
real uncle of the deceased persons. The
conduct of the aforementioned selfclaimed eye-witnesses speaks ocean and
need not to be explained any further.

22. From the above analysis of
testimonies
of
both
aforementioned
witnesses, their conduct and action is
loud and clear and on that score the
possibility of false implication of the
accused persons cannot be ruled out.
When they admit that they were inimical
in terms, then despite having opportunity
to lodge prompt FIR, they decided to
wait for almost 30 hours to get the FIR
registered, the inordinate delay shambles
confidence
of
the
Court
in
the
prosecution
story,
which
attributes
serious dent to their testimonies.

23. The inordinate delay in lodging
the F.I.R. raises serious eyebrows to the
authenticity and veracity of the prosecution
story. This inordinate and unexplained
delay of more than 30 hours is insidiously
used by the informant in concocting the
false
prosecution
story
after
taking
assistance of his fellow persons, else there
was no occasion or reason not to lodge an
FIR promptly, that too, when they
themselves were present within the premise
of police station along with injured, sharing
all the information and the name of the
assailants to concerned police personnel.
We are at loss to bridge this yawning gap.
Both the eye-witnesses, who are in blood
relations of the deceased, were present
along with the injured, could have lodged
the FIR on 5.10.2006 itself but without any
plausible justification or reason they
exhausted 30 good hours to lodge the F.I.R.
and ultimately got it lodged on 06.10.2006
at 7.35 AM.

24.

The
issue
whether
the
prosecution story can be discarded or
disbelieved merely on the ground of there
being inordinate delay in lodging the FIR
is no longer res integra and stands settled
by catena of judgements by Hon'ble
Apex Court as well as this Court. It
would be, in our view, proper to analyze
the case law on this point and issue.

25. Learned senior counsel has
contended that in a given circumstances,
the inordinate delay in lodging the FIR is
fatal and relied upon the judgement of
Hon'ble Apex Court in the case of Thulia
Kali vs State of Tamil Nadu, AIR 1973
SC 501. In para 12 of said judgement
Hon'ble Supreme Court has observed
thus :

"12.
....................
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 stand point 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 names of eye witnesses present at
the scene of occurrence. Delay in lodging
the first in- formation 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
566 INDIAN LAW REPORTS ALLAHABAD SERIES
deliberation and consultation. It is,
therefore, essential that the delay in the
lodging of the first information report
should
be
satisfactorily
explained.
........................... The said circumstance,
in our opinion, would raise considerable
doubt regarding the veracity of the
evidence of those two witnesses and point
to an infirmity in that evidence as would
render it unsafe to base the conviction of
the accused-appellant upon it."

26. Similarly in the case of Apren
Joseph alias Current Kunjukunju and
others v. State of Kerala, AIR 1973 SC
1, the Hon'ble Apex Court has observed
as hereinunder :-

"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."

27. Further, similarly relevant
extract of the judgement delivered by
Hon'ble Apex Court in the case of
Ravinder Kumar and another vs State
of Punjab, 2001 (43) ACC 755 (SC) 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
8 All. Chandresh Yadav & Ors. Vs. State of U.P.
567
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; Tara Singh vs.
State of Punjab; Jamna vs. State of U.P.
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."

28. The Hon'ble Apex Court in
Tara Singh and others vs. State of
Punjab, 1991 (28) ACC 93 (SC) has
held as under :

"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 eyewitnesses. 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
568 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

29. In the case of Himanchal
Pradesh vs. Gian Chand, 2001 (43)
ACC 200 (SC) the Hon'ble Apex Court
has reiterated as under :

"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.