(State v. Prem Kum
Case Details
Court No. - 43 Case :- CRIMINAL APPEAL No. - 3727 of 2006 Appellant :- Prem Kumar Shukla @ Prem Shankar Respondent :- State of U.P. Counsel for Appellant :- Tripathi B.G. Bhai,Lav Srivastava,V.P. Srivastava Counsel for Respondent :- Govt. Advocate,Shaminul Hasnain Hon'ble Ashwani Kumar Mishra,J. Hon'ble Shiv Shanker Prasad,J. 1. This criminal appeal is by the accused-appellant Prem Kumar Shukla @ Prem Shankar against the judgment and order dated 17 th June, 2006 passed by the Additional Sessions Judge/Fast Track Court No.-2, Siddhartha Nagar in Session Trial No. 133 of 1992 (State Vs. Prem Kumar Shukla), arising out of Crime No. 110 of 1989, under Section 302 I.P.C. Police Station-Chilhiya, District-Siddhartha Nagar, whereby he has been convicted and sentenced him to undergo (i) life imprisonment under Section 302 I.P.C. with fine of Rs. 10,000/-, in default thereof, he has to further undergo one year additional simple imprisonment. 2. We have heard Mr. Tripathi V.G. Bhai, learned counsel for the accused-appellant and Kumari Meena, learned A.G.A. for the State and have carefully perused the materials available on record. 3. The prosecution case is that on 8th August, 1989 (night) the first informant/P.W.-1, namely, Barfi Devi was sleeping on floor of her roof and her husband, namely, Lavkush Shukla (hereinafter referred to as the “deceased”) was sleeping on a cot over his roof (Chhat). At at about 03:00 a.m., the first informant/P.W.-1 heard foot steps of someone and in the light of lantern, she saw the accused-appellant along with Jai Prakash @ Golku, who were armed with country-made pistols (Kattas). It is alleged that the
Facts
accused-appellant and his brother indiscriminately fired upon the husband of the first informant i.e. deceased, who died on the spot. Having returned a few steps, the other assailant Jai Prakash fired another shot upon the deceased and both of them fled via the roof of house of one Akchhaibar Dubey. The incident is said to have seen by the first informant. It is also alleged that there was a dispute with regard to immovable property between the deceased and the accused persons are otherwise related to 1 the deceased. About six months back, the brother of the accused appellant, namely, Jai Prakashhas shot dead the son of the deceased and first informant, namely, Shatrughan Shukla. The contents of the report were dictated by the first informant to Rishi Dev (P.W.-2), who had prepared the written report (Exhibit-Ka-1) on the basis of which the first information report came to be registered on 9th August, 1989 at 06:45 a.m. The distance between the Police Station and the place of occurrence is about 6 kilometres. On receiving the information about the incident, the Police came on the spot and prepared the inquest report at about 09:15 a.m. in the morning. The inquest witnesses found that the cause of death of the deceased was gun short injuries. The dead body was sealed and sent to Mortuary for post-mortem. The autopsy on the dead body has been conducted by Dr. Kuber Nath Pandey (P.W.-5), who found the cause of death of the deceased to be severe ante-mortem gun shot injuries. 4. The Investigation was concluded after recording the statements of witnesses and charge-sheet was submitted against the accused-appellant under Section 302 I.P.C. The Magistrate concerned took cognizance and committed the case to the Court of Session resulting in registration of Sessions Trial No. 133 of 1992. The accused-appellant has been convicted of murdering the deceased Lavkush Shukla and committing offence under Section 302 I.P.C. 5. The trial proceeded and the prosecution produced following documentary evidence: “i). The written report subscribed by Rishi Dev (P.W.-2) on the dictation of the first informant Barfa Devi (P.W.-1) has been marked as Exhibit Ka-1; ii). The first information report dated 9th Augsut, 1989 has been marked as Exhibit-Ka-5; iii). Recovery memo of plain earth blood, blood stained ‘Chadar’ (bed- sheet) and pellets has been marked as Exhibit-Ka-10; iv). Recovery memo and Supardaginama of Lantern has been marked as Exhibit Ka-11; v). The statement of Taradutt Dubey has been marked as Exhibit Ka-13; vi). The statement of Parmatma Dubey has been marked as Exhibit Ka-14; vii). Post-mortem report of the deceased has been marked as Exhibit-Ka- 17; 2 (viii). Inquest report/panchayatnama has been marked as Exhibit-Ka-4; ix). Charge-sheet dated 8th September, 1989 has been marked as Exhibit- Ka-15; and x). Site plan with index was marked as Exhibit Ka-10.” 6. The prosecution also examined total six witnesses in the following manner:- “i). The Informant, namely, Barfa Devi, wife of the deceased has been adduced as P.W.-1; ii). Rishi Dev, who was scriber of the first information report has been adduced as P.W.-2 but he has turned hostile; iii) Tara Prasad Dubey, who is neighbour of the first informant, has been adduced as P.W.-3 but he has also turned hostile; iv). Parmatma, resident of same village has been adduced as P.W.-4, who has also turned hostile; (v) Dr. Kuber Nath Pandey, who conducted the post-mortem of the body of the deceased and has proved the same, has been adduced as P.W.-5; and vi) Constable-109 Sacchidanand Mishra , who has proved the police papers, has been adduced as P.W.-6. 7. The statement of the accused-appellant has thereafter been recorded under Section 313 Cr.P.C. in which he has denied the accusation made against him. 8. On the basis of above evidence produced by the prosecution before the court below, the trial court came to the conclusion that the statement of P.W.-1, who is the eye-witness and has seen the occurrence is credible, which matches with the autopsy report. The trial court took note of the fact that there exists relationship and enmity between the parties in respect of immovable property and that the first information report has been promptly lodged and the procedure contemplated for investigation has been dully followed. It is on this basis that the court below has convicted the accused- appellant and sentenced him to life imprisonment along with Rs. 10,000/- for the offence punishable under Section 302 I.P.C. 9. Aggrieved by the above judgment, the accused-appellant is before this Court by means of the present criminal appeal. 3
Legal Reasoning
accusced-appellant upon the Division Bench Judgment of this Court in the case of Satya Prakash Vs. State of U.P. reported in 2022 (118) ACC 831, wherein the oral testimony of a solitary eye witness, who has not suffered any injury, has not been found convincing in view of the other evidence on record. The attention of the Court has been invited to following observation of the Division Bench: “25. ……………………….. Be that as it may, the upshot of the discussion is that the testimony of PW-1 having not been found truthful on a material particular and inconsistent as well, in the sense that it improves upon the earlier statement, in respect of the manner in which the incident occurred, it is not wholly reliable and this by itself is sufficient to extend the benefit of doubt to the accused-appellant. More so, when the prosecution case is based on testimony of a solitary eye witness, who has himself not suffered any injury, and the testimony does not find corroboration from other independent evidence. At this stage, we may notice that though the prosecution had also examined PW-4 as a witness who saw the accused running away from the spot, but this deposition of his is at variance with his statement under section 161 CrPC where he did not state having seen the accused running away. We, therefore, do not propose to rely on the testimony of PW-4 to lend credence to what PW- 1 deposed.” 5 13. Kumari Meena, learned A.G.A. for the State on the other hand states that this is a case in which prior enmity between the parties is clearly admitted and the son of the deceased, namely, Shatrughan Shukla was killed by Jai Prakash brother of the accused-appellant. It is also admitted that for the said offence Jai Prakash has been been convicted and sentenced to life imprisonment. Kumar Meena further submits that the first informant, who was the wife of the deceased and living in the same house, is clearly a reliable witness as she has seen the incident from close proximity and her deposition that both the accused were firing indiscriminately on the deceased, matches with the autopsy report of the deceased. Kumari Meena also submits that suggestion that P.W.-1 had not seen the present accused appellant and that she had only implicated Jai Prakash also cannot be sustained in view of the specific assertion made by P.W.-1 in her deposition. 14. At the outset we may note that the accused-appellant Prem Kumar Shukla @ Prem Shankar and Jai Prakash @ Golku are the sons of Jhinna, Learned counsel for the accused-appellant has placed family pedigree in order to explain the relationship and also the cause of enmity between the parties. Common ancestors in this case are Ambika and Chandrika who were two brothers. Ambika had two sons, namely, Jhinna (father of accused appellant and Jai Prakash) and Lavkush (deceased), therefore, the accused-appellant Prem Kumar and Jai Prakash are real nephews of the deceased. Chandrika had died issueless. It appears that Chandrika had executed a will in favour of Shatrughan, Janardan and Ashtdev i.e. sons of Lavkush (deceased). The cause of dispute between the family was the will left behind by Chandrika on account of which his entire share devolved upon Lavkush (deceased) to the detriment of heirs of Jhinna. On account of this enmity, Jai Prakash, elder brother of the accused-appellant Prem Kumar allegedly killed Shatrughan i.e. son of Lavkush (deceased) six months back from the date of the incident in question. Learned counsel for the accused-appellant does not disputes that Jai Prakash has been convicted and sentenced to life imprisonment for murdering Shatrughan. 15. According to the prosecution, the accused-appellant Prem Kumar and his elder brother Jai Prakash wanted to take revenge and that is why having murdered Shatrughan by Jai Prakash, they decided to eliminate the 6 deceased as well. On the fateful day i.e. 9th August, 1989 at about 03:00 a.m. in the morning, two accused came to the house of the deceased, who was sleeping on his roof with his wife. It is alleged that two brothers indiscriminately fired with fire arm upon the deceased which resulted in his death. 16. The prosecution in order to bring home the charge has produced P.W.-1 who is wife of the prosecution. It is not in dispute that P.W.-1 was living with the deceased and her presence in the house of deceased cannot be questioned. Similarly, it is but natural that his wife was also sleeping close by him, on the roof. It has been stated by P.W.-1 that she was sleeping on the floor, while her husband was sleeping on a cot. This also appears to be a natural statement, as often in villages this is how couple sleeps. The argument on behalf of the accused-appellant that the cot on which the deceased was sleeping, was not recovered and is not shown in the site plan does not impress us as very often a man sleeps on a cot and a lady sleeps on the floor in the villages. P.W.-1 has stated that she had heard foot steps in the early hours and in the lantern lit close by she saw two accused including the present appellant. The lantern in which she saw the two accused has been recovered, exhibited and produced during the course of trial. 17. The argument of the accused-appellant that suspecting the presence of P.W.-1 on the ground that she has not sustained any injury or no blood was found on her clothes also does not impress us much, inasmuch as in a case where two persons are indiscriminately firing upon a person, it is not expected that a wife, who was fully aware of the intention of both the persons, would go near her husband. 18. We may also notice that at the time of incident, P.W.-1 was nearly 60 years of age and at that stage she cannot be expected to have confronted the two assailants, who were young men armed with fire arms. Similarly, non finding of blood stain on her clothes would not be fatal, as in traumatic situation faced by P.W.-1, her response to the situation could have varied. Learned A.G.A. points out that the clothes worn by P.W.-1 are otherwise not recovered and therefore, the question of any blood stain being found on her clothes cannot be commented. As we find her presence close to her husband was not doubtful and it is otherwise admitted that the deceased 7 died due to gun shot injuries, we are not inclined to accept the submission of the learned counsel for the accused-appellant that merely for such reasons, the presence of P.W.-1 on the spot itself becomes doubtful. 19. So far as the contention of the learned counsel for the accused- appellant that P.W.-1 while dictating the contents of the report to the scriber had only taken the name of Jai Prakash and another person is concerned, we find that such argument is based upon the deposition of P.W.-2 who by then has already been declared hostile. The statement of such witness therefore, cannot be read or relied upon. Admittedly, the first information report has been written on the instruction of P.W.-1. P.W.-1 has been examined and in her deposition she has clearly stated that report was written by P.W.-2 on her instructions and that the first information report contains the contents which she had dictated to P.W.-2. In view of the statement of P.W.-1 about the contents of first information report being exactly same as was disclosed by her to P.W.-2 for lodging the police report, we are not inclined to accept the contention advanced on behalf of the accused-appellant on the basis of statement of a hostile witness (P.W.- 2). 20. Enmity between the parties is clearly established. There is absolutely no reason put forth by the accused appellant in his statement under Section 313 Cr.P.C. as to why he would be falsely implicated as none otherwise had a grievance with the deceased. The fact that the two persons had fired upon the deceased is apparently established by the number of gun shot injuries sustained by the deceased. 21. P.W.-1 in her statement also has stated that gun shot injuries were caused to the deceased from a close distance, which matches the autopsy report in which around gun shot injuries blackening has been found. 136 pellets have been recovered from the body of the deceased. 22. So far as the argument of the learned counsel for the accused- appellant with reference to the reliability of statement of P.W.-1 is concerned, the observations of the Apex Court were made in paragraph-17 in the case of Bhimappa Chndrappa Hosamani (Supra) which has already been extracted above, we may note that the observations of the Court doubting the presence of a witness on account of non availability of blood stain came to be made in the context of the case where the statement of 8 witness was not found credible for other reasons also. It would be relevant to refer to the observations of the Apex Curt made in paragraph-18 of the judgment in the case of Bhimappa Chndrappa Hosamani (Supra) which reads as under: “18.There are several circumstances which give rise to a serious doubt about the truthfulness of PW-1. It is the case of the prosecution supported by PW-1 that her husband PW- 3 slept inside the house while her deceased son slept outside on the 'katta'. This assertion of PW-1 is again contradicted by her husband PW-3 who stated that on that night he had not slept inside the house. In fact he had slept with his deceased son on the 'katta'. He further stated that he left his son sleeping and washed his face and, untied the cow tethered in front of his house and took the cow for sale to Muddebihal market. There was a pot of water on the 'katta' where they had slept and he used that water for washing his face. He did not go inside the house. While leaving, he only awakened his wife. It obviously means that without going inside the house he may have awakened his wife by calling her and asking her to wake up.” 23. The fact that no blood stain were found, therefore, was one of the factors to be noticed by the Court while analysing the issue of relying on reliability of the witness. We do no find any such friction in statement of P.W.-1 and therefore, merely because the blood stain were not found on the clothes of P.W.-1, we are not persuaded to accept the argument advanced by the learned counsel for the accused-appellant that P.W.-1 was not present on the spot. 24. So far as the observations of the Division Bench of this Court in the case of Satya Prakash (Supra) is concerned, the Court had examined the evidence led in the case and on facts, specifically the testimony of eye witness was not found reliable. The observations of the Court were on facts of that case which have no application in the facts of the present case. 26. P.W.-2 has turned hostile. In his statement, P.W.-2 has otherwise admitted that he has not seen the incident and he came much after the assailants had left. He also supported the prosecution story that he had written the report. The other hostile witnesses i.e. P.W.-3 and P.W.-4 have not disputed the incident either. 27. Upon evaluation of the evidence led before us, we find that conviction and sentenced of the accused-appellant by the court below is 9 based on correct appreciation of evidence on record and the presence of P.W.-1 is not doubtful on the spot and her testimony is reliable. Her testimony otherwise matches with the medical evidence and was rightly made the basis for conviction and sentence of the accused-appellant. 28. In such view of the matter we find that the present criminal appeal has no merit and is consequently dismissed. 29. The dismissal of this criminal appeal however shall not prejudice the rights of the accused-appellant to apply for remission, which shall be dealt with in accordance with law on merits. 30. Let a copy of this judgement be sent to the Chief Judicial Magistrate, Siddhartha Nagar, who shall transmit the same to the Jail Superintendent concerned for information of the accused-appellant henceforth. (Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.) Order Date :- 23.9.2022 Sushil/- 10
Arguments
10. Mr. Tripathi V.G. Bhai, learned counsel for the accused-appellant submits that the accused-appellant has been falsely implicated in the present case inasmuch as the accused-appellant was neither present at the place of occurrence nor has committed the alleged offence. He submits that P.W.-1 in her disclosure made to P.W.-2 for lodging of the report, had informed that the deceased was fired upon by Jai Prakash with another person and the name of the accused-appellant has been introduced on the prompting of the Police which had already arrived on the spot. He further submits the fact that P.W.-1 neither sustained any injury nor any blood was found on her clothes worn by her at the time of incident, clearly indicates that she was not present at the place of occurrence, therefore, her deposition is not reliable. Further he submits that the prosecution story that in the lantern light, the incident was seen, is also not credible as place where the lantern was shown to have kept was far away from the place of occurrence and at about 03:00 a.m. in Night, it would be difficult for any one to correctly identify the accused. 11. Learned counsel for the accused-appellant next submits that the testimony of P.W.-1 is otherwise not reliable in view of contradiction contained in her statement. It is also submitted that none of the neighbours have otherwise testified in support of the prosecution case. In support of his case, learned counsel for the accused-appellant has placed reliance upon a judgment of the Apex Court in the case of Bhimappa Chandappa Hosamani & Others Vs. State of Karnataka reported in 2007 (57) ACC 559, wherein the Apex Court in paragraph-17 has observed as under: “17. In her First Information Report she had stated that PW-2 had witnessed the occurrence after coming out of the house alongwith her mother-in-law on hearing her cries. In her evidence, however, she gave a different version. She stated that when the appellants came, her son PW-2 was standing in the front yard of the house. Both she and her son pleaded with the appellants not to assault the deceased but they were both pushed by them and the appellants started assaulting the deceased. An improvement has been made by the witness in an attempt to project the presence of PW-2 from the very beginning of the occurrence which, as we have held earlier, is not true. Another aspect of the matter which deserves notice is the fact that neither her clothes nor that of PW-2 had any blood stains, though having regard to the nature of injures of the deceased a lot of blood must have come out. She explained by saying that she only touched the body of the deceased to find out whether he was alive. The 4 conduct, to say the least, appears highly unnatural. Learned counsel for the appellant submitted that the absence of blood stains on the clothes of PWs.1 and 2 suggests that they had not witnessed the occurrence as they were perhaps inside the house and later when they came out they saw the dead body of the deceased on the 'katta' with severe injuires. It was submitted that according to PW-2 when the occurrence took place at about 6.00 a.m. the sun had not risen but there was sufficient light to identify the appellants. According to PW-2, his mother PW-1 was washing utensils inside the house. The speed with which the occurrence took place as described by PW-1 is such that she had hardly any time to raise her voice when the accused started assaulting her son. By the time she could raise her voice, the accused had murdered her son and had run away. In the light of these circumstances it was argued before us that while she was inside the house, the murder of her son had taken place outside on the 'katta' where he was sleeping and the assailants had disappeared after committing the offence. Her claim, therefore, that she was an eye witness cannot be accepted.” 12. Reliance has also been placed by the learned counsel for the