Section

Jai Prakash Vs. State of Uttar Pradesh and Ors.

[Criminal Appeal Nos. 1790-1791 of 2019 arising out of SLP (Crl.) Nos. 269-70 of 2019]

[Criminal Appeal Nos.1792-93 of 2019 arising out of SLP (Crl.) Nos. 288-89 of 2019]

R.Banumathi, J.

1.Leave
granted.

2. These
appeals arise out of the impugned judgment dated 16.11.2018 passed by the High
Court of Judicature at Allahabad in Criminal Appeal Nos.2403 and 5829 of 2005
whereby the High Court allowed the appeals thereby setting aside the conviction
of respondents-accused Nos.1, 2 and 4 passed by the trial court under Sections
302 IPC and 120B IPC and acquitted them of the charges under Sections 302 IPC
and 120-B IPC.

3. Being
aggrieved by the acquittal, the appellant-complainant has preferred Criminal
Appeals arising out of LP(Crl.) Nos.269-70 of 2019. The State of Uttar Pradesh
has filed the other Criminal Appeals arising out of SLP(Crl.) Nos.288-89 of
2019.

4. Briefly
stated case of the prosecution is as under:- Complainant-Jai
Prakash and deceased Ravi Prakash are real brothers. On 17.11.1992 shortly
prior to 09.00 am, the appellant-complainant came back home after relieving
himself near the Urai bus stand. At that time, he noticed the accused persons sitting
with arms in their possession in the flour mill of Shankar Teliaccused No.3
(since acquitted by the trial court). Complainant came to his house. At that
time, Sanjay Mishra and Ajay Kumar (PW-3) came to the house of deceased for
discussion regarding the work of electric decoration in connection with the
marriage of daughter of one Maiku Soni.

The appellant sent Ravi Prakash to bring gutkha for Ajay Kumar (PW-3) and Sanjay Mishra. After purchasing gutkha when the deceased was returning from the shop and
reached in front of accused No.3-Shankar Telis flour mill, accused Bhupendra
Yadav (A2) armed with double barrelled gun, accused Raju Teli (A4) armed with single barrelled gun and accused Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold of the deceased Ravi Prakash. Ravi
Prakash tried to free himself by raising alarm. Accused Bhupendra Yadav fired
bullet in the chest of the deceased Ravi Prakash, accused Raju Teli fired in
the leg and accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi Prakash
fell down on the spot. Appellant-Jai Prakash, Ajay Kumar (PW-3) and Sanjay
Mishra who saw the occurrence rushed to the spot to save the deceased Ravi
Prakash. On seeing them coming, accused persons came out of the flour mill and
fled away from the scene of occurrence.

5. As per the
complainant, motive for the commission of the offence was the previous enmity
harboured by accused Bhupendra Yadav with the family of the appellant due to
newspaper publishing regarding the activities of accused Bhupendra Yadav by
another brother of the appellant namely Om Prakash, in the weekly journal August Nama.
Due to which, accused Bhupendra Yadav had beaten up Om Prakash and Om Prakash
lodged complaint against accused Bhupendra Yadav. Sometimes prior to the
occurrence, accused Bhupendra Yadav had beaten up the appellant also and on the
basis of the complaint, a case was registered against accused Bhupendra
Yadav. According to the appellant, as a consequence of the said enmity, Ravi
Prakash was fired at by the accused and murdered.

6. Regarding
the occurrence, PW-1-Jai Prakash got the complaint written by one Munni Lal and
on the same day at 09.30 am, the appellant lodged the same before the Police
Station Rath, District-Hamirpur. Based on the complaint, FIR in Crime No.474 of
1992 (Ex.-Ka.3) was registered against the accused under Sections 302 IPC and
120B IPC. Investigation of the case was taken up by the Investigating
Officer-PW-5-SI-Shobha Mani Tripathi.

The Investigating
Officer went to the place of occurrence and under his instructions, SI-R.N.
Singh held inquest on the body of deceased Ravi Prakash. The dead body of Ravi
Prakash was sent to hospital for post-mortem examination. SI-R.N. Singh took
sample of simple and blood-stained earth from the scene of occurrence and recovered a
pair of chappal of the deceased (Ex.-Ka.10) and packet of kisaan
gutkha (Ex.-Ka.11) and prepared recovery memo.

7. On the
same day i.e. 17.11.1992 at about 04.15 pm, dead body of Ravi Prakash was sent
to Rajkiya Purush Chikitsalaya, Rath where post-mortem was conducted on the
dead body by Dr. B.K. Gupta (PW-2)
who noted the following injuries:-

(i) A firearm
lacerated wound of entry on left side of chest, 4 cm below the medial left
clavicle and 3 cm left to midline of chest.

(ii) Multiple
firearm lacerated wound of exit on left side of scapular region, 3 cm left to
midline of back.

(iii) A
firearm lacerated wound of entry on right side lower jaw, 5 cm right to the tip
of chin.

(iv) A
firearm lacerated wound of entry on back of right thigh, 7.5 cm above the knee
joint.

(v) A firearm
lacerated wound of entry on right thigh, 20 cm above the knee joint.

(vi) A
firearm lacerated wound of exit on antero right thigh, 10 cm above knee joint.

(vii)
Multiple abrasion on medial aspect of right leg above the medial malleolus. PW-2 Doctor
opined that the death of the deceased was due to haemorrhagic shock as a result
of ante-mortem injuries and issued Ex.-Ka.2-Post-Mortem Certificate. After
completion of investigation, charge sheet was filed against all the four
accused under Sections 302 IPC and 120B IPC.

8. When
questioned, all the accused denied the charges and pleaded not guilty. To bring
home the guilt of the accused, the prosecution examined total six witnesses –
eye witnesses PWs 1 and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses.
Upon consideration of the evidence, the trial court convicted accused Nos.1, 2
and 4 under Sections 302 IPC and 120B IPC and sentenced them to undergo life
imprisonment. The trial court held that the evidence of eye witness-PW-1-Jai Prakash, brother of deceased and PW-3-Ajay
Kumar are natural and acceptable. The trial court held that PW-3 Ajay Kumar has
given satisfying reasons for his presence at the house of PW-1 and the presence
of PW-3 outside the house of PW-1 is natural and cannot be doubted.

Insofar as the question of non-examination of Sanjay Mishra and other persons in the mohalla, the trial court held that in the present social conditions and circumstances, independent
witnesses are apprehensive that if they appear as witnesses in the criminal
cases, their future will not be safe and therefore, non-examination of the independent
witnesses will not affect the prosecution case. After referring to the
post-mortem report and the evidence of PW-2 Doctor, the
trial court held that the medical evidence corroborates the evidence of PWs 1
and 3. The trial court also held that nonrecovery of the guns and the
contradictions pointed by the accused in the evidence of PWs 1 and 3, would not
affect the case of the prosecution. With those findings, the trial court
convicted accused Nos.1, 2 and 4. However, the trial court gave benefit of
doubt to accused No.3-Shankar Teli and acquitted him.

9. Being
aggrieved, the respondents-accused Nos.1, 2 and 4 have preferred appeals before
the High Court. By referring to the contents of the FIR (Ex.-Ka.3), the High
Court held that within short time, it is least possible for an illiterate
person like PW-1 to lodge a complaint with such details and the possibility
cannot be ruled out that the First Information Report has been lodged after discussion and on the advice of
Om Prakash. After referring to the deposition of PW-1 and PW-3, the High Court
held that the presence of the witnesses at the place and at the time of
occurrence appears to be doubtful.

After referring to Post-Mortem Report, the
High Court further held that in the Post-Mortem Report, it is mentioned that
the large intestine of deceased was full and therefore, death might have taken
place before Ravi Prakash attended nature call as generally, people attend the
call of nature in the morning and it is least possible that the deceased has
not attended the call of nature before 09.00 am. Doubting the presence of PW-3
at the place and time of occurrence, the High Court held that PW-3 could not properly
explain the reason as to why he went to the house of PW-1 and his version
appears unnatural. Pointing out that there was motive for Om Prakash to
instigate his brother PW-1 to make false allegations against the accused on the
murder of his brother Ravi Prakash, the High Court held that accused Nos.1, 2
and 4 deserve to be given benefit of doubt. With those findings, the High Court
allowed the appeals filed by the accused and set aside their conviction
and sentence passed by the trial court and acquitted them.

10. Taking us
through the evidence and the judgment of the trial court as well as the High
Court, Mr. R. Basant, learned Senior counsel for the appellant has submitted
that PW-1 has clearly stated each and every detail of the incident which is
amply corroborated by the evidence of PW-3 and the evidence of PWs 1 and 3 are
natural and their evidence is consistent with the medical evidence as well as the case of the
prosecution. It was further submitted that considering the well-settled position,
the trial court recorded the finding that the general public are reluctant to
come forward to depose before the court and it is not proper to reject the case
of the prosecution for non-examination of the independent witnesses. It was
submitted that the High Court erred in holding that nonexamination of the
independent witnesses and Munni Lal-scribe of the complaint is fatal to the
prosecution case. Learned Senior counsel further submitted that the lapses in
the investigation like non-sending of the blood-stained earth and sample earth
taken from the scene of occurrence and non-recovery of “empties” from the scene of
occurrence and other lapses would not affect the prosecution case and the High
Court erred in reversing the conviction and acquitting the accused.

11. Mr.
Basava Prabhu S. Patil, learned Senior counsel appearing for accused
No.2-Bhupendra Yadav submitted that the motive is attributed to Om
Prakash-brother of PW-1 and when the accused were having such enmity with Om
Prakash, it is not known as to why the accused should attack Ravi Prakash and
no injury was caused to PW-1 who was easily available to the accused even before
Ravi Prakash passed through the flour mill of Shankar Teli (PW-3).

The learned Senior counsel further submitted the PW-3 is a chance witness and as such, his presence in the house of PW-1 is not natural and PW-3 could not have
witnessed the incident. It was further submitted that the High Court rightly
pointed out the improbability of the occurrence that the accused who were
waiting in Shankar Telis flour mill, would not have anticipated that Ravi Prakash
would pass through the flour mill and considering the improbability
of the prosecution case, the High Court rightly reversed the conviction and the
impugned judgment warrants no interference.

12. Mr. P.K.
Sharma, learned counsel appearing for accused No.4-Raju Teli submitted that the
conduct of PW-1, brother of deceased was unnatural as he made no attempt to
save his younger brother rather he was interested only in preparing the complaint
(Ex.-Ka.3) and going to the police station. Learned counsel further submitted
that the Post-Mortem Report shows four gun-shot injuries which are not in
consonance with the oral evidence and the discrepancies between the oral and
medical evidence has not been properly explained. The learned counsel submitted
that PW-3 is a chance witness and the High Court rightly held that his presence
in the house of PW-1 at the time of incident is unnatural. It was submitted
that the prosecution case is highly doubtful since during the investigation,
neither the fire arms were recovered nor the “empties” of the cartridges have
been recovered from the
place of occurrence and no ballistic opinion had been obtained by the
prosecution to prove that the injury on the person of the deceased were caused
by the alleged fire arms used by the accused.

13. Mr.
Kartikeya Bhargava, learned counsel appearing for accused No.1-Lallu @ Lal
Diwan submitted that there were contradictions between the evidence of PWs 1
and 3 as to whether there was scuffle prior to the incident and this has not
been properly appreciated by the trial court. The learned counsel further
submitted that the multiple bruises found on the body of deceased has not been
properly explained by the prosecution and the High Court rightly
reversed the conviction of the accused and the impugned judgment warrants no
interference.

14. We have
carefully considered the contentions and perused the impugned judgment and
materials on record. The point falling for consideration is as contended by the
appellants, whether the High Court without properly appreciating the evidence
erred in setting aside the conviction of the respondents-accused Nos.1, 2 and
4.

15. Case of
the prosecution is that at about 09.00 am on

17.11.1992,
while returning from the shop after purchasing gutkha, deceased
Ravi Prakash reached the front of flour mill of Shankar Teli, accused Bhupendra
Yadav (A2) having double barrelled gun, accused Raju Teli (A4) armed with
single barrelled gun and accused Lallu @ Lal Diwan (A1) armed with country made
pistol (tamancha), caught hold of Ravi Prakash and Ravi Prakash raised alarm and tried to free himself from
the grip of the accused. At that time, accused Bhupendra Yadav, Raju Teli and
Lallu @ Lal Diwan fired from their respective weapons and fired shot on the
chest, leg and jaw of Ravi Prakash respectively due to which Ravi Prakash fell down
on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW-3) and Sanjay Mishra
rushed to the spot to save Ravi Prakash and on seeing them, all the three accused escaped from the place of occurrence.

As per the complaint/FIR (Ex.-Ka.3) and also the statement of PW-1, after his morning walk and after relieving himself at the Urai bus stand, while coming back home, he
saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with arms in their possession. Case of the prosecution is that there was previous enmity between the family of appellant and accused Bhupendra Yadav which is the cause of murder of Ravi Prakash. When that being the motive and if the accused were so found armed with weapons in the flour
mill of Shankar Teli, the question arises as to why the appellant sent his
brother-Ravi Prakash to purchase gutkha from the shop
of one Choco Kori. This has not been explained by the appellant.

16. The
respondents-accused Nos.1, 2 and 4 armed with weapons were sitting in the flour
mill of Shankar Teli and were talking to each other. The motive alleged by the
prosecution is that about two years prior to the occurrence, Om Prakash-brother
of the appellant-Jai Prakash had written about the illegal activities of accused
Bhupendra Yadav and brought out news in the newspaper due to which accused
Bhupendra Yadav had assaulted Om Prakash. In this regard, Om Prakash had lodged a criminal case in the police station and
FIR has been registered and due to this enmity, the accused are alleged to
have committed murder of Ravi Prakash. Both the appellant-Jai Prakash and Ravi
Prakash are brothers of Om Prakash.

If the accused were looking for vengeance of
Om Prakash-brother of Ravi Prakash, why the respondentsaccused allowed Jai
Prakash (PW-1) to let go unharmed; more so, when PW-1 was normally in the habit
of going for morning walk. If the motive for the crime is accepted, then all
brothers of Om Prakash would be targets; but here attack was on only the deceased
brother and PW-1 was spared although attackers were fully armed and near the
place of occurrence. As pointed out by the High Court, case of the prosecution
does not appear to be natural that the respondents-accused Nos.1, 2 and 4 have
attacked Ravi Prakash who happened to pass through the flour mill by chance after
purchase of gutkha.

17. PW-3-Ajay
Kumar stated that on the date of occurrence i.e. 17.11.1992, he along with
Sanjay Mishra had gone to the house of Jai Prakash (PW-1) to discuss about the electric
decoration work for the marriage ceremony of daughter of one Maiku Soni in
their mohalla. Admittedly, Ravi Prakash was the electrician by
profession who was to attend to the electric work and the decoration. It is not
explained as to why deceased Ravi Prakash who was to attend to the electric
work and the decoration work, instead of discussing the need of the prospective
clients i.e. PW-3, would go out to purchase gutkha. Curiously,
Maiku did not accompany Ajay Kumar (PW-3) and Sanjay Mishra to the house of
Ravi Prakash for discussion. As pointed out by the High Court, neither Maiku
nor any member of the family had gone with PW-3 to talk about the decoration
for the marriage ceremony of daughter of Maiku. This raises serious doubts
about the presence of PW-3 in the scene of occurrence and the case of the
prosecution.

18. Next, as
per the deposition of PW-1, there is a goomty placed on the
square platform of Munna Musalman from which gutka can be taken
out. This goomti is at a distance of just fifteen steps from the
house of the appellant and the shop of Choco Kori where Ravi Prakash had gone
to buy the gutkha is at a distance of about 150-200 steps, again
said 100-125 steps from the house of the appellant. It has nowhere been stated
when the deceased could not have gotten gutkha right near
his house and why should he go to a shop at some distance away from the house.
Of course, PW-1 firstly stated that he gave money to Ravi Prakash to purchase gutkha, however
subsequently, he stated that in the shop of Choco Kori, credit account was
maintained. The reason stated that Ravi Prakash had gone to the shop of Choco Kori at a little bit far away place to purchase gutkha leaving his prospective clients for decoration of electric work is not quite
convincing.

19. PW-3 Ajay
Kumar is a resident of mohalla Mughalpura, town and PS Rath, District-Hamirpur.
In his evidence, PW-3 stated that he along with Sanjay Mishra had gone to the
house of PW-1. PW-3 further stated that he called PW-1 outside and when he was
talking to PW-1, PW-1 asked Ravi Prakash to bring gutkha from
the shop for Ajay Kumar and Sanjay Mishra. As discussed earlier, when PW-3 had
gone to the house of PW-1 to discuss about the electric decoration work for the
marriage ceremony of daughter of Maiku, neither Maiku nor any member of his
family accompanied PW-3 to discuss about the electric work in the marriage
ceremony of daughter of Maiku. In his cross-examination, PW-3 could not explain
the reason as to why he went to the house of PW-1. The High Court observed that
PW-3 is a chance witness and expressed doubts about the presence of PW-3 in the
scene of occurrence on 17.11.1992 and we do not find any good reason to take a
different view.

20. There are
several material discrepancies between the evidence of PW-1 and PW-3 as to the
occurrence. PW-3 has stated that when Ravi Prakash passed through the way, the
respondentsaccused came out of the flour mill and there was a scuffle for sometime
with Ravi Prakash and the accused fired the bullet shots from their guns and
the pistol. On the other hand, PW-1 has only stated that the respondents-accused have fired at Ravi Prakash and has not
stated anything about the scuffle. The witnesses who have deposed in the court after considerable lapse of time of course, cannot be expected to have photographic memory of the case.

We are conscious of the well settled position that the minor discrepancies not touching upon the core of the prosecution case,
would not affect the credibility of the witnesses or the prosecution case. Of
course, PWs 1 and 3 have given their evidence in the court in 2003-04 near after a decade; but they are said to have witnessed the occurrence from a close distance. Whether there was scuffle between Ravi Prakash and the
respondents-accused is an integral part of the main incident and the witnesses
are expected to be consistent in their version. The inconsistencies in the
version of PWs 1 and 3 as to whether there was a scuffle or not is not explained
by the prosecution which again raises serious doubts about the prosecution
case.

21.Medical
Evidence: As per the deposition of PWs 1 and 3, accused Bhupendra Yadav
fired at the deceased on his chest; Lallu Lal Diwan fired on the jaw and Raju
Teli fired on the leg of the deceased. As per post-mortem report dated
17.11.1992, there were four firearm lacerated wounds. Apart from the injuries
on the chest, jaw and the
leg, there was firm arm injury on the right thigh 2 cm above the knee. PWs 1
and 3 have not explained the fourth firearm injury; nor they have made any
mention of the accused firing multiple shots. This discrepancy between the
medical evidence and the oral evidence assumes significance in view of the
elaborated depositions made by the witnesses and the FIR which explains minute
detail of the entire incident.

22. There are
also several lapses in the investigation of the case like non-recovery of “empties”
fired from the guns on the deceased, non-recovery of fire arms used by the
respondents-accused etc. It is well-settled that any omission on the part of
the Investigating Officer cannot go against the prosecution case. If the
Investigating Officer has deliberately omitted to do what he ought to have done in the interest of
justice, it means that such acts or omissions of Investigating Officer should
not be taken in favour of the accused. In his cross-examination,
PW-5-Investigating Officer has stated that the broken pieces of cartridges,
bursts and empty shells of the cartridges were not found on the site of the
incident. PW-4-Sub-Inspector of Police has also not made reference about the “empty shells of
cartridges” in the scene of occurrence. The prosecution case of course, cannot
be doubted merely on the ground of nonrecovery of weapons and other piece of
evidence. But in the present case, an elaborately written FIR was registered
immediately after the occurrence i.e. at 09.30 am.

The Sub-Inspector of Police (PW-5)
had promptly taken up the investigation and on the direction of PW-5, SI-R.N.
Singh took sample earth and the blood-stained earth from
the scene of occurrence and recovered a pair of footwear of the deceased and
packet of kissan gutkha and prepared recovery memo of the
same which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the
Investigating Officer had taken care even to recover packet of kissan
gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces
of evidence like “empties” were lost; but this vital omission has not been
explained. This factum assumes importance particularly, in view of the fact
that the FIR is alleged to have been registered promptly at 09:30 a.m. of the
occurrence which occurred at 09:00 am. The inquest was also conducted at 10:00
a.m. and the investigation also promptly started.

The accused-respondents allegedly ran away from the scene of occurrence immediately after shooting at
the deceased thus, they could not have possibly removed the cartridges, pieces,
etc. themselves. This is not the case of the prosecution. It is also not the case
of the prosecution that the area was cleaned and somebody has removed the “empties”. In
such view of the matter, the nonrecovery of “bursts and empty shells of cartridges”
and “broken pieces of cartridges” from the scene of occurrence raises serious doubt about the actual
place of occurrence. As pointed out earlier, any act of commission/omission of
the Investigating Officer cannot go to the advantage of the accused. But in a
case of this nature where FIR is said to have been registered within half an
hour of the occurrence and the investigation also commenced then and there, we
find no reason as to why the “empties” and “bursts” from the scene of
occurrence were not recovered.

23.
Furthermore, as per the evidence of Investigating Officer Shobha Mani Tripathi
(PW-5), the accused were arrested on the very next day of occurrence i.e.
18.11.1992. Even though the accused were arrested on the very next day, the
weapons used by them were not recovered. Of course, the case of the prosecution
has to be examined de hors such omissions of the Investigating Officer like
non-recovery of weapons etc. But material discrepancies
in the evidence of PWs 1 and 3 coupled with the unnaturalness of the
prosecution case, non-recovery of weapons and empties raise serious doubts
about the prosecution case.

24. The duty
of the appellate court is to consider and appreciate the evidence adduced by
the prosecution and arrive at an independent conclusion. Like the trial court,
the appellate court also must be satisfied of its conclusion. In exercise of
power under Article 136 of the Constitution of India, in State
of Uttar Pradesh v. Punni and others (2008) 11 SCS 153 , while
dealing with the order of acquittal passed by the High Court, the Supreme Court
held that it would not ordinarily interfere with the findings of the High Court unless it is satisfied
that such a finding is vitiated by some glaring infirmity in the appraisement
of evidence or such finding is perverse or arbitrary. In the present case, the
High Court has analysed entire evidence and recorded its finding as to how the
trial court has gone wrong in not appreciating the material inconsistencies in the prosecution case. The findings
recorded by the High Court in acquitting the respondents-accused Nos.1, 2 and 4
does not suffer from any infirmity warranting interference with the impugned judgment.
The appeals filed by the complainant and the State of Uttar Pradesh are liable
to be dismissed.

25. In the
result, the impugned judgment dated 16.11.2018 passed by the High Court of
Judicature at Allahabad in Criminal Appeal Nos.2403 and 5829 of 2005 is
affirmed and the criminal appeals arising out of SLP(Crl.) Nos.269-70 of 2019
filed by the appellant-Jai Prakash and criminal appeals arising out of
SLP(Crl.) Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand dismissed.

…………………..J. [R. BANUMATHI]

…………………..J. [A.S. BOPANNA]

…………………..J. [HRISHIKESH ROY]

New Delhi;

November 28, 2019

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