Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 216 (ALL)

Rajesh Kumar Shukla v. State Of U. P.

2019-01-25

KARUNESH SINGH PAWAR, PRASHANT KUMAR

body2019
JUDGMENT : Prashant Kumar, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 06.10.2004 and 07.10.2004 respectively passed by the learned Additional Session Judge (F.T.C.no.2), Sitapur, in Sessions Trial No.782 of 1995 and Session Trial No.373 of 1996, corresponding to Case Crime Nos.171 of 1995, 172 of 1995 and 173 of 1995, Police Station Biswan, District Sitapur, whereby and whereunder the appellant Rajesh Kumar Shukla has been convicted under Sections 302 and 498-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.10,000/-with stipulation clause for the offence under Section 302 of the IPC and he was also sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.2000/-with stipulation clause for the offence under Section 498-A of the IPC. 2. The case of the prosecution in short, as per the written report of PW-1, Uma Shanker Shukla, is that the sister of informant namely Urmila (deceased) was married about seven years ago with the appellant Rajesh Kumar Shukla. It is alleged that after marriage the appellant, his mother Maya Devi and father Maheshwar Dayal used to torture and assault the deceased in connection with home affairs. It is further stated that the informant and his family members had visited the in-laws house of the deceased and tried to pacify the matter, but the appellant and his family members gave no heed to the said persuasion. It is alleged that on 12.07.1995 the informant went to in-laws house of the deceased with a view to meet her and found that her mother-in-law, sister-in-law, father-in-law and the appellant were abusing the deceased and threatening the deceased. It is stated that the informant had pacified the matter. It is then alleged that at about 8:00 P.M. in the night the deceased went for meeting the call of nature. It is further alleged that after sometime the appellant also went for easing. It is further stated that behind the above two persons the informant also went for easing and when he reached outside the village, he saw in the light of torch that the appellant with a view to kill the deceased had fired on her by a country-made pistol. Due to said firing the deceased fell on the ground. It is further stated that behind the above two persons the informant also went for easing and when he reached outside the village, he saw in the light of torch that the appellant with a view to kill the deceased had fired on her by a country-made pistol. Due to said firing the deceased fell on the ground. Thereafter, the informant raised alarm, whereupon the appellant fled away after giving threatening to the informant. It is further stated that on the alarm villagers came and then the informant went near the deceased and found that she had already died. It is stated that thereafter the informant went to village Belwa and informed his another sister about the occurrence. It is further alleged that when the informant again came to the place of occurrence alongwith family members of his another sister he saw in the light of torch that the appellant was fleeing away keeping the head of the deceased in his hand. 3. It appears that on the basis of aforesaid written report an F.I.R. was lodged on 13.07.1995 at 7:30 A.M. and Case Crime No.171 of 1995, under Sections 498-A, 302, 201, 504, 506 of the Indian Penal Code against the appellant and co-accused Maheshwar Dayal Shukla and Smt. Maya Devi and police took up investigation. 4. In course of investigation the Investigating Officer prepared inquest report in presence of witnesses and thereafter sent the dead body alongwith other police papers for post mortem examination on 13.07.1995 at 11:30 A.M. It further appears that on 13.07.1995 at about 2:50 P.M. the Investigating Officer had arrested the appellant from near Lahsara bridge situated in village Shahpur and from his possession had recovered the head of the deceased, besides a countrymade pistol and a knife. It appears from the record that the inquest report of the head of the deceased was prepared and the head was also sent to the hospital for post mortem examination. It also appears that that a recovery memo was prepared regarding the recovery of head, countrymade pistol and knife. It further appears that a countrymade pistol and knife were recovered from the possession of appellant, therefore, a separate F.I.R. lodged against the appellant on 13.07.1995 at 8:05 P.M. and Case Crime Nos.172 of 1995 and 173 of 1995 instituted under the Arms Act and PW-7 was done investigation of the above cases. It further appears that a countrymade pistol and knife were recovered from the possession of appellant, therefore, a separate F.I.R. lodged against the appellant on 13.07.1995 at 8:05 P.M. and Case Crime Nos.172 of 1995 and 173 of 1995 instituted under the Arms Act and PW-7 was done investigation of the above cases. It appears that after completing the investigation both the Investigating Officers submitted charge-sheet against the appellant and co-accused Maheshwar Dayal and Smt. Maya Devi. It appears that the learned Magistrate after taking cognizance of the offence committed both the cases to the court of sessions for trial. In Session Court Session Trial No.782 of 1995 instituted out of Case Crime No.171 of 1995 whereas the Session Trial No.373 of 1996 was instituted from Case Crime No.172 of 1995 and Case Crime No.173 of 1995. 5. The Learned Sessions Judge framed charges against the appellant and co-accused under Sections 498-A of the IPC. It then appears that against the appellant the charge has been framed under Section 302 and 201 of the IPC and also under Section 25 (1-B) of the Arms Act and under Section 25 of the Arms Act. 6. The aforesaid charges were read over and explained to the appellant and other co-accused persons to which they pleaded not guilty and claimed to be tried. 7. Thereafter, the prosecution had examined altogether seven witnesses and also produced documentary evidence in support of its case. 8. After close of the case of prosecution, the statements of appellant and co-accused were recorded under Section 313 of the Criminal Procedure Code in which their defence is of total denial. The appellant had further taken a defence that his wife had gone for easing and while she was returning to her house she has been killed by some miscreants who looted away her ornaments. He further taken a defence that he went to the police station in the morning but he has been detained and after assaulting him the present false case has been lodged. 9. After considering the evidence available on record and also after hearing the counsel for the parties learned trial court convicted and sentenced the appellant as aforesaid. Against that the present appeal has been filed. It is not out of place to mention that by the same judgment the appellant has been acquitted from the charge levelled against him under the Arms Act. 10. Against that the present appeal has been filed. It is not out of place to mention that by the same judgment the appellant has been acquitted from the charge levelled against him under the Arms Act. 10. Heard Sri Rajesh Kumar Dwivedi, who has been appointed as Amicus Curiae, on behalf of the appellant and the Government Advocate Sri Vishwas Shukla, learned Additional Government Advocate for the State. 11. While assailing the impugned judgment learned Amicus Curiae Mr. Rajesh Kumar Dwivedi, has submitted that in the instant case the prosecution had tried to prove the charges levelled against the appellant, from the evidence of PW-1, who claimed himself to be eye witness of the occurrence and also from the evidence of PW-3, cousin brother of PW-1, who claimed that the head of the deceased was recovered from the possession of the appellant in his presence. It is submitted that so far PW-1 is concerned, his evidence is not reliable and acceptable. It is submitted that PW-1 in his deposition as well as in his earlier statement made in the written report had categorically stated that the deceased died after sustaining fire arm wound. It is further submitted that PW-1 had also deposed that after the death of the deceased the appellant Rajesh Kumar Shukla cut the head of the deceased and fled away alongwith the same. It is further submitted that the aforesaid statement of PW-1 has been contradicted by the doctor who conducted autopsy on the dead body of the deceased. It is submitted that the doctor has not found any fire arm wound on the dead body of the deceased. The doctor has only found some mark of gun powder on the body of the deceased. The doctor has specifically stated in his deposition that it is not possible that the deceased would die from injury no.2 of Exhibit Ka-5. It is further submitted that the doctor had given definite opinion that injury on the neck of the deceased is ante-mortem in nature. Accordingly, it is submitted that the evidence of PW-1 is inconsistent with the medical evidence, which goes to show that he is not eye witness of the occurrence. It is further submitted that the doctor had given definite opinion that injury on the neck of the deceased is ante-mortem in nature. Accordingly, it is submitted that the evidence of PW-1 is inconsistent with the medical evidence, which goes to show that he is not eye witness of the occurrence. It is further submitted that the aforesaid facts further found strength from the fact that PW-1 in his statement under Section 161 of the Cr.P.C. has stated that he reached to the place of occurrence on 13.07.1995 in the evening. This also shows that he is not eye witness of the occurrence which took place at 8:00 P.M. in the night of 12.07.1995. So far the recovery of head from the possession of the appellant is concerned, it is submitted that the said recovery is also doubtful and improbable. It is submitted that PW-1 has stated that the appellant fled away alongwith the head of the deceased on 12.07.1995 at about 8:30 P.M. Thus, it is not probable that he will roam alongwith the said head of the deceased for about 18 hours so that the same could be recovered from his possession on the next day at about 3:00 P.M. It is further submitted that the Investigating Officer had stated that the appellant was arrested by him at 2:50 P.M. and from his possession the head of the deceased alongwith one countrymade pistol and knife recovered. It is submitted that from perusal of Exhibit Ka-3 (the inquest report of head) it is clear that the appellant was arrested at 4:00 P.M. on 13.07.1995. Under such circumstance, it is a mystery as to how the recovery was made from his possession at 2:50 P.M. Accordingly, it is submitted that the evidence adduced by the prosecution against the appellant are not worth reliable, hence, the appellant cannot be convicted on the basis of the same. Thereafter, the impugned judgment is not sustainable in this appeal. 12. On the other hand, learned Additional Government Advocate has submitted that in view of the ocular testimony of PW-1 read with statements of PW-3 and PW-6 that from the possession of appellant the head of the deceased was recovered the prosecution had proved the charges levelled against the appellant. Thus, the learned trial court had rightly convicted and sentenced the appellant under Sections 302 & 498-A of the IPC. 13. Thus, the learned trial court had rightly convicted and sentenced the appellant under Sections 302 & 498-A of the IPC. 13. Having heard the submissions, we have gone through the record of the case and scrutinized the evidence available on record. 14. PW-5 is the doctor Sri P.K. Tandon, who held autopsy on the dead body of the deceased as well as on the head of the deceased and proved two post mortem report which were marked as Exhibit Ka-5 and Exhibit Ka-6. Exhibit Ka-5 is the report of post mortem examination of dead body, whereas Exhibit Ka-6 is the report of post mortem examination of the head of the deceased. From perusal of Exhibit Ka-5, we find that the doctor has found the following ante-mortem injuries on the body of the deceased which are as under:- (i) Incised wound 12.0 cm. outer portion x 10.0 cm. transverse through and through on the neck at the level of 6th cranial vertebra, above this level head & neck absent. Total circumference of the wound is 33.0 cm. (ii) Gun powder mark is present in an area of 10.0 cm x 8.0 cm. on the right side chest just above the right nipple, extending upto midline. (iii) Incised wound 1.0 cm. x 0.5 cm x muscle deep in the dorsum of proximal phalanges of left hand middle finger. (iv) Incised wound 0.5 cm x 0.3 cm. x muscle deep on the back of right wrist joint. 15. Whereas from perusal of Exhibit Ka-6, we find that the doctor has found the following ante-mortem injuries on the head of the deceased which are as under:- (i) Multiple incised wounds in an area of 17.0 cm x 16.0 on the face and forehead, size of biggest wound 7.0 cm x 1.0 cm x bone cut, size of smallest wound 0.5 cm x 0.3 cm. muscle deep. (ii) Incised wound 9.0 cm. x 1.0 cm x skin deep on the left side of scalp 10.0 cm above left ear. (iii) Incised wound 6.0 cm x 1.0 cm. x muscle deep on the left side of scalp, 5.0 cm behind injury no.2. (iv) Incised wound 12.0 cm outer part x 10.0 cm trachea through and through on the neck at the level of 6th cerebral vertebra below this level body is missing. Total contusion of wound is 33 cm. 16. (iii) Incised wound 6.0 cm x 1.0 cm. x muscle deep on the left side of scalp, 5.0 cm behind injury no.2. (iv) Incised wound 12.0 cm outer part x 10.0 cm trachea through and through on the neck at the level of 6th cerebral vertebra below this level body is missing. Total contusion of wound is 33 cm. 16. From perusal of above two post mortem reports as well as deposition of PW-5, we find that the death of the deceased was caused due to shock and haemorrhage as a result of decapitation. Thus, from the post mortem reports, it is clear that the deceased had died a homicidal death. Homicidal death of the deceased has also not denied by the defence. Thus, now the question arose for determination in this appeal as to whether the appellant has any hand in the commission of present crime? This bring us to consider the rest of the evidence adduced by the prosecution. 17. As noticed above in the instant case, the prosecution had examined altogether seven witnesses, PW-1 Uma Shanker Shukla is the informant and brother of the deceased who claims himself to be the eye witness of the occurrence. PW-2 Krishna Murari, is brother-in-law of the deceased but he has not supported the case of the prosecution and has been declared hostile. PW-3 Ramesh, is the cousin of the deceased who claims to be the eye witness of recovery of the head of the deceased from the possession of the appellant. PW4 Dr. S.P. Verma, is the doctor who examined the injuries on the person of appellant and proved the injury report which is marked as Exhibit Ka-4. PW 5 as noticed above, is the doctor namely Dr. P.K. Tandon, who conducted autopsy on the dead body of the deceased and also on the head of the deceased and proved two post mortem reports Exhibit Ka-5 and 6. PW-6, Mr. Brij Mohan Sharma, is the Investigating Officer of Case Crime No.171 of 1995 whereas PW-7 Satya Deo Singh Siddhu, is the Investigating Officer of Case Crime No.172 of 1995 and 173 of 1995 instituted under the Arms Act. 18. PW-1 has stated that on the date of occurrence he went to the in-laws house of the deceased situated in Village Bohra with a view to meet the deceased. 18. PW-1 has stated that on the date of occurrence he went to the in-laws house of the deceased situated in Village Bohra with a view to meet the deceased. He further stated that in the night at about 8:00 P.M. his sister (deceased) went for attending the call of nature. He further deposed that thereafter the appellant also went behind her for attending the call of nature. He then stated that after sometime he also went for easing and when he covered some distance from the house, he heard the sound of yelling. Thereafter he focused the light of his torch towards the place from where the sound was coming and saw that the appellant fired on his sister from a countrymade pistol. Who after receiving injury fell on the ground. He further deposed that thereafter he raised alarm, whereupon the villagers came. He further stated that after arrival of villagers the appellant fled away alongwith countrymade pistol. He then deposed that after retreat of appellant he alongwith villagers went near the deceased and found that she has already died. He further deposed that thereafter he went to village Belwa and informed about the occurrence to his elder sister and brother-in-law Krishna Murari (PW-2). He then stated that thereafter he again came to the place of occurrence alongwith his brother-in-law and saw in the light of torch that the appellant was fleeing from the place of occurrence alongwith the head of the deceased. He further stated that thereafter again he went to village Belwa and on the next day he lodged the First Information Report. 19. Thus, from the careful perusal of the examination-in-chief of PW-1 it is clear that the deceased died after receiving gun shot injury and after her death her head was chopped off by the appellant. But from perusal of deposition of the doctor who conducted autopsy on the headless dead body of the deceased and proved the post mortem report (Exhibit Ka-5), we find that the doctor has not found any fire arm wound on the person of the deceased. He had only found mark of gun powder in an area of 10 cm x 8 cm on the right side of chest just above the nipple. The doctor while deposing in court had categorically stated that the aforesaid mark is possible if some cartridge passes from very close range of the body. He had only found mark of gun powder in an area of 10 cm x 8 cm on the right side of chest just above the nipple. The doctor while deposing in court had categorically stated that the aforesaid mark is possible if some cartridge passes from very close range of the body. However, in the cross-examination he categorically stated that it is not possible that anybody will died due to injury no.2 describe in Exhibit Ka-5. Under such circumstance, the doctor who conducted autopsy has categorically stated that the deceased has not died due to fire arm injury as claimed by PW-1. We further find that the doctor has found ante-mortem injuries on the neck of the deceased. This also belies the claim of PW-1 that the head of the deceased was chopped off by the appellant after the death of the deceased. Because if the head was chopped off after the death of the deceased then in that case the doctor would have found the post mortem injuries on the neck, but in this case the doctor has found ante-mortem injury on the neck. 20. Under the aforesaid circumstance, we find that the statement of PW-1 who is the sole eye witness of the occurrence is totally inconsistent with the medical evidence. 21. It has been held by Hon’ble the Supreme Court in the case of Mani Ram and Others V. State of U.P. reported in 1994 Supp (2) SCC 289 at para 9 which runs as under:- “………..It is well settled by long series of decisions of this Court that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. In the present case as noticed above the evidence of the solitary witness Prabhoo Nath is wholly inconsistent with the medical evidence and, therefore, it is difficult to accept him as an eyewitness to the occurrence and therefore it would not be safe to base the conviction on the solitary evidence of such a witness. There is no other evidence to support the prosecution case. Consequently the conviction of the appellants deserves to be set aside.” 22. Thus, we find that the evidence of PW-1 is not at all reliable and therefore, the same cannot be become the basis for conviction. Hence, the aforesaid evidence adduced by the prosecution is hereby excluded from the arena of consideration. 23. Now coming to the recovery of head of the deceased from the possession of the appellant, we find that the said recovery is also doubtful in view of inconsistency in the statement of Investigating Officer (PW-6) and the inquest report of the head (Exhibit Ka-3). The Investigating Officer (PW-6) had stated that he arrested the appellant at 2:50 P.M. on 13.07.1995 but from perusal of Exhibit Ka-3 the inquest report of the head of the deceased, it appears that the appellant was arrested at 4:00 P.M. on 13.07.1995. Under such circumstance, it is not clear as to when the head of the deceased was recovered from the possession of the appellant. PW-1 in his statement has stated that at about 8:30 P.M. on 12.07.1995 the appellant fled away from the place of occurrence alongwith the head of the deceased whereas as per the Investigating Officer and PW-3 the head of the deceased was recovered from the possession of the appellant on the next day in the afternoon. Thus, the story narrated by the prosecution seems to be improbable because a person will not carry the head of the deceased and roam here and there so that he could be arrested and thereafter the head be recovered from him. Thus, the story narrated by the prosecution seems to be improbable because a person will not carry the head of the deceased and roam here and there so that he could be arrested and thereafter the head be recovered from him. It has come in the evidence that there is river near the place of occurrence but instead of throwing the head in the said river the appellant roam here and there alongwith head for creating evidence against him. Thus, on the ground of improbability also the alleged recovery of head of the deceased from the possession of the appellant, appears to be doubtful. It is worth mentioning that the learned trial court had also disbelieved part of the recovery and acquitted the appellant from the charges of Arms Act. 24. In the instant case the defence of the appellant is that his wife has been killed by some unknown miscreants while looting her ornaments and he went to the police station in the next morning for giving information to the police but instead of lodging the case on his information the police beaten him and falsely implicated him in the present case. It is worth mentioning that the appellant was examined by PW-4 on being requisitioned by the police. PW-4 has found altogether three injuries on the person of appellant but the prosecution had not explained the said injuries on the person of appellant. 25. It has come in the evidence of prosecution witness that the family of appellant is a rich family and they owned 60 bighas of land. Under such circumstance, it is not impossible that the deceased might worn ornaments at the relevant time. Thus, the defence of the appellant that she has been killed by some unknown miscreants while looting away her ornaments, is not an impossible proposition specially in view of the fact that the appellant claims that he was beaten by the police in the police station when lodged the F.I.R. 26. Under such circumstance, the aforesaid defence case also casts a serious doubt on the prosecution case that the appellant had committed murder of the deceased. 27. Under such circumstance, the aforesaid defence case also casts a serious doubt on the prosecution case that the appellant had committed murder of the deceased. 27. In view of the aforesaid discussion, we find that the learned trial court had committed serious illegality and or irregularity in accepting the evidence of PW-1 and also accepting the evidence of prosecution relating to recovery of head of the deceased from the possession of the appellant. Hence, the judgment of conviction and order of sentence dated 06.10.2004 and 07.10.2004 cannot be sustained in this case. Accordingly, this appeal is hereby allowed. The impugned judgment of conviction and order of sentence dated 06.10.2004 and 07.10.2004 passed by learned Additional Sessions Judge/(F.T.C. no.2), Sitapur, is hereby set aside. The appellant Rajesh Kumar Shukla, is acquitted from the charges levelled against him under Sections 302 & 498-A of the Indian Penal Code. 28. It appears that the appellant Rajesh Kumar Shukla is in jail custody. Thus, he is directed to be released forthwith, if not wanted in any other case. 29. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record alongwith copy of the judgment to ensure compliance. 30. Since Sri Rajesh Kumar Dwivedi, was appointed as Amicus Curiae by this Court, he shall be paid a sum of Rs.20,000/-(Rupees Twenty Thousand only) as his fee for conducting the case on behalf of the appellant.