Kaushal @ Alok Chauhan … v. State of U.P

Judgment

1. The present appeal is preferred against the judgment of conviction and sentence dated 09.07.2012 passed by the court of Additional Sessions Judge, Court No.2, Etawah in Sessions Trial No.59 of 2006 (State Vs. Kushal alias Alok Chauhan S/o Krishan Chandra Chauhan), in Case Crime No.383 of 1997, Police Station Kotwali, District Etawah, under Section 302 read with Section 34 of I.P.C.

2. The accused-appellant is punished with imprisonment for life and Rs.10,000/- fine, in default, two years additional imprisonment for 2 Criminal Appeal No. - 3211 of 2012 committing the offence of murder committed in furtherance of common intention.

3. According to First Information Report (F.I.R.), two accused, namely, Deepak Dixit alias Deepu S/o Hari Om and Kaushal alias Alok Chauhan (appellant) have been named in the F.I.R. lodged by Sri Sunder Lal Gupta, father of deceased Kamlesh Kumar Gupta for offence under Section 307 I.P.C., when both the accused had fired at the deceased through their country made pistol on 13.07.1997 at 11:00 p.m., while the deceased, informant and other persons were gathered at the marriage ceremony of sister of Shailesh Kumar alias Popey Jain solemnized at Jain Dharmshala Lalpura, Etawah. The deceased was standing at the gate of Jain Dharmshala when the two accused, named above came and

opened fire at Kamlesh Kumar Gupta, he was taken to hospital by his father and brother after visiting the police station, situated at a distance of half a kilometer from the place of incident. In the district hospital, Etawah, the accused was declared brought dead.

4. After investigation, the charge sheet has been submitted only against the present appellant, but not against the accused Deepak Dixit alias Deepu, who has been summoned by the trial court by order dated

24.03.2007 for offence under Section 302 I.P.C., invoking Section 319 Cr.P.C. This accused remained absconding and his file was separated.

5. The prosecution has produced two witnesses of fact, P.W.-1 Sunder Lal Gupta and P.W.-2 Shailesh Kumar Gupta, respectively, the father and brother of deceased.

6. The prosecution has produced five formal witnesses. P.W.-3 Constable Bhaiya Lal was the constable clerk (the scribe of Chik F.I.R. and G.D); P.W.-4 S.I. Subedaar Singh, the first Investigating Officer, who has also conducted inquest on the death body of deceased; P.W.-5 Inspector Karanvir Singh Sachan, the second Investigating Officer, who has carried out further investigation and submitted charge sheet; P.W.-6 3 Criminal Appeal No. - 3211 of 2012 Dr. P.C. Pandey, who has informed the police station concerned about the death of deceased; and P.W.-7 Jagdish Chandra Gupta, the Nursing Assistant of District Hospital, where Dr. S.C. Dubey (deceased) has conducted post mortem examination.

7. The statement of accused has been recorded under Section 313 Cr.P.C., wherein he has denied the allegation of murder on him; stated that he has been falsely implicated and the entire documentary evidences are false; showed ignorance as to why he has been implicated in the case as his name is not Kaushal, but Alok Chauhan.

8. Sri Sudeep Kumar Pathak, learned counsel for the appellant has submitted that there is no evidence on record of the trial to connect the appellant for offence of murder in furtherance of common intention. The appellant is known by the name of Alok Chauhan and never known by the name of Kaushal; the F.I.R. and the statement of witnesses recorded during investigation is silent about the role of named accused who caused detrimental fire; the evidence on the record shows enmity of deceased with co-accused Deepak Dixit, but no enmity is shown against the appellant; the main accused Deepak Dixit has not been charge sheeted; the witnesses of fact are related witnesses and shaky in their statements about knowing Kaushal prior to the lodging of F.I.R.; there is marked improvement in the statement of witnesses; the witnesses of fact initially stated that they later came to know that Kaushal is also known by the name of Alok Chauhan; the witnesses of fact are not the eye witnesses, but pretended to be the eye witnesses and therefore, they have continuously made improvements in their statements on the basis of tutoring; the medical evidence does not corroborate with the eye witness account; the Investigating Officer initially raised doubt on Popey Jain, who has certain trade related issues with the deceased; during investigation, some of the witnesses have also stated through affidavits that it was an accident during the celebratory firing at the marriage 4 Criminal Appeal No. - 3211 of 2012 ceremony; the appellant is in custody for nearly 12 long years, having no criminal history. The above mentioned points have not been dealt with by the trial judge in right perspective, resultant into recording of conviction. It is further submitted that the witnesses of fact are interested witnesses and their statements have to be appreciated cautiously, but the trial Judge has not evaluated the statements of witnesses of fact cautiously. The learned counsel has relied on the cases of Goverdhan and another Vs. State of Chattisgarh1 and Shyam Behari Mishra and another Vs. State of U.P.2, decided by the Division Bench of this Court by judgment dated 24.03.2023 in Criminal Appeal No.1092 of 2005.

9. Per contra, Sri Sushil Kumar Pandey, learned A.G.A.-I has opposed the arguments made by the learned counsel for the appellant and submits that the murder of Kamlesh Kumar Gupta was occasioned in full public view, when the people were gathered at the marriage ceremony of sister of Sri Shailesh alias Popey Jain at the gate of Jain Dharmshala Lalpura, Etawah. The incident has been witnessed by many persons, but none came forward to depose before the Court, except the father and brother of deceased. The assailant, namely, Deepak Dixit alias Deepu and his friend Kaushal, who had their residences in the same vicinity were being identified by the persons including P.W.-1 and P.W.-

2. The accused-appellant, who has been identified during dock examination was familiar in the locality. It is not necessary that the correct name is known to all, as the persons are generally known by their nick names. The appellant, in the same way also known by the name of Kaushal and when the name of accused was clear, his name is mentioned accordingly. Deceased Kamlesh was shot at the gate of Jain Dharmshala on 13.07.1997 at 11:00 p.m., which is reported on 14.07.1997 at 00:20 a.m. and died due to gunshot injury, is apparent from the post mortem examination report. The main accused, though dropped after (2025) 3 SCC 378 1 2 Criminal Appeal No. 1092 of 2005 5 Criminal Appeal No. - 3211 of 2012 investigation has been summoned by the trial court under Section 319 Cr.P.C. The trial Judge has rightly appreciated the evidence and recorded conviction, which is required to be affirmed in appeal.

10. We have considered the rival submissions made by the parties. Perused the judgment passed by the trial court vis-a-vis the evidence on record.

11. After venturing into the facts, evidence and arguments, we have considered the power of the appellate court provided under Section 386 Cr.P.C. in the case of Gowrishankara Swamigalu Vs. State of Karnataka and Another3, it has been held by the Supreme Court that the powers to be exercised by an Appellate Court are as wide as of the trial court. The Appellate Court can review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused, but where two views are possible on same evidence and the findings recorded by the trial court are not perverse, the appellate court should not interfere with the findings of the lower court.

12. Thus, the appellate court, firstly, to appreciate the evidence on record; and secondly, should interfere with the findings only when the view of appellate court is different from the trial court. Coupled with the observation that the finding recorded by the trial court is perverse.

13. It is also observed by the Supreme Court in the case of Jitendra Kumar Mishra alias Jittu Vs. State of M.P.4 that the appellate court should be slow in interfering with conviction recorded by the trial court, but where evidence on record indicates that the prosecution has failed to prove the guilt of accused beyond reasonable doubt and that is a plausible view, different from the one expressed by the trial court, can be taken. The appellate court then should not shy away in giving benefit of doubt to the accused. 3 4

opened fire at Kamlesh Kumar Gupta, he was taken to hospital by his father and brother after visiting the police station, situated at a distance of half a kilometer from the place of incident. In the district hospital, Etawah, the accused was declared brought dead.

4. After investigation, the charge sheet has been submitted only against the present appellant, but not against the accused Deepak Dixit alias Deepu, who has been summoned by the trial court by order dated

24.03.2007 for offence under Section 302 I.P.C., invoking Section 319 Cr.P.C. This accused remained absconding and his file was separated.

5. The prosecution has produced two witnesses of fact, P.W.-1 Sunder Lal Gupta and P.W.-2 Shailesh Kumar Gupta, respectively, the father and brother of deceased.

6. The prosecution has produced five formal witnesses. P.W.-3 Constable Bhaiya Lal was the constable clerk (the scribe of Chik F.I.R. and G.D); P.W.-4 S.I. Subedaar Singh, the first Investigating Officer, who has also conducted inquest on the death body of deceased; P.W.-5 Inspector Karanvir Singh Sachan, the second Investigating Officer, who has carried out further investigation and submitted charge sheet; P.W.-6 3 Criminal Appeal No. - 3211 of 2012 Dr. P.C. Pandey, who has informed the police station concerned about the death of deceased; and P.W.-7 Jagdish Chandra Gupta, the Nursing Assistant of District Hospital, where Dr. S.C. Dubey (deceased) has conducted post mortem examination.

7. The statement of accused has been recorded under Section 313 Cr.P.C., wherein he has denied the allegation of murder on him; stated that he has been falsely implicated and the entire documentary evidences are false; showed ignorance as to why he has been implicated in the case as his name is not Kaushal, but Alok Chauhan.

8. Sri Sudeep Kumar Pathak, learned counsel for the appellant has submitted that there is no evidence on record of the trial to connect the appellant for offence of murder in furtherance of common intention. The appellant is known by the name of Alok Chauhan and never known by the name of Kaushal; the F.I.R. and the statement of witnesses recorded during investigation is silent about the role of named accused who caused detrimental fire; the evidence on the record shows enmity of deceased with co-accused Deepak Dixit, but no enmity is shown against the appellant; the main accused Deepak Dixit has not been charge sheeted; the witnesses of fact are related witnesses and shaky in their statements about knowing Kaushal prior to the lodging of F.I.R.; there is marked improvement in the statement of witnesses; the witnesses of fact initially stated that they later came to know that Kaushal is also known by the name of Alok Chauhan; the witnesses of fact are not the eye witnesses, but pretended to be the eye witnesses and therefore, they have continuously made improvements in their statements on the basis of tutoring; the medical evidence does not corroborate with the eye witness account; the Investigating Officer initially raised doubt on Popey Jain, who has certain trade related issues with the deceased; during investigation, some of the witnesses have also stated through affidavits that it was an accident during the celebratory firing at the marriage 4 Criminal Appeal No. - 3211 of 2012 ceremony; the appellant is in custody for nearly 12 long years, having no criminal history. The above mentioned points have not been dealt with by the trial judge in right perspective, resultant into recording of conviction. It is further submitted that the witnesses of fact are interested witnesses and their statements have to be appreciated cautiously, but the trial Judge has not evaluated the statements of witnesses of fact cautiously. The learned counsel has relied on the cases of Goverdhan and another Vs. State of Chattisgarh1 and Shyam Behari Mishra and another Vs. State of U.P.2, decided by the Division Bench of this Court by judgment dated 24.03.2023 in Criminal Appeal No.1092 of 2005.

9. Per contra, Sri Sushil Kumar Pandey, learned A.G.A.-I has opposed the arguments made by the learned counsel for the appellant and submits that the murder of Kamlesh Kumar Gupta was occasioned in full public view, when the people were gathered at the marriage ceremony of sister of Sri Shailesh alias Popey Jain at the gate of Jain Dharmshala Lalpura, Etawah. The incident has been witnessed by many persons, but none came forward to depose before the Court, except the father and brother of deceased. The assailant, namely, Deepak Dixit alias Deepu and his friend Kaushal, who had their residences in the same vicinity were being identified by the persons including P.W.-1 and P.W.-

2. The accused-appellant, who has been identified during dock examination was familiar in the locality. It is not necessary that the correct name is known to all, as the persons are generally known by their nick names. The appellant, in the same way also known by the name of Kaushal and when the name of accused was clear, his name is mentioned accordingly. Deceased Kamlesh was shot at the gate of Jain Dharmshala on 13.07.1997 at 11:00 p.m., which is reported on 14.07.1997 at 00:20 a.m. and died due to gunshot injury, is apparent from the post mortem examination report. The main accused, though dropped after (2025) 3 SCC 378 1 2 Criminal Appeal No. 1092 of 2005 5 Criminal Appeal No. - 3211 of 2012 investigation has been summoned by the trial court under Section 319 Cr.P.C. The trial Judge has rightly appreciated the evidence and recorded conviction, which is required to be affirmed in appeal.

10. We have considered the rival submissions made by the parties. Perused the judgment passed by the trial court vis-a-vis the evidence on record.

11. After venturing into the facts, evidence and arguments, we have considered the power of the appellate court provided under Section 386 Cr.P.C. in the case of Gowrishankara Swamigalu Vs. State of Karnataka and Another3, it has been held by the Supreme Court that the powers to be exercised by an Appellate Court are as wide as of the trial court. The Appellate Court can review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused, but where two views are possible on same evidence and the findings recorded by the trial court are not perverse, the appellate court should not interfere with the findings of the lower court.

12. Thus, the appellate court, firstly, to appreciate the evidence on record; and secondly, should interfere with the findings only when the view of appellate court is different from the trial court. Coupled with the observation that the finding recorded by the trial court is perverse.

13. It is also observed by the Supreme Court in the case of Jitendra Kumar Mishra alias Jittu Vs. State of M.P.4 that the appellate court should be slow in interfering with conviction recorded by the trial court, but where evidence on record indicates that the prosecution has failed to prove the guilt of accused beyond reasonable doubt and that is a plausible view, different from the one expressed by the trial court, can be taken. The appellate court then should not shy away in giving benefit of doubt to the accused. 3 4