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2019 Supreme(SC) 1304
SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, HRISHIKESH ROY, JJ.
Jai Prakash – Appellant
Versus
State of Uttar Pradesh and Others – Respondents
Criminal Appeal Nos. 1790-1793 of 2019 [Arising out of SLP(Crl.) Nos.269-70, 288-89 of 2019]
Decided On : 28-11-2019
For the Petitioner(s):Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Shashank Shekhar Singh, Advocates
For the Respondent(s):Basava Prabhu S. Patil, Ajay Singh, Manish Pratap Singh, Debasish Mukherjee, Ajay Misra, (AAG) Ruchira Goel, Uday Prakash Yadav, Alpana Pandey, Kafeel Ahmada, Abhisth Kumar, Rohit Amit Sthalekar, Ramjee Pandey, Advocates
IMPORTANT POINTS
(1) Any act of commission/omission of Investigating Officer cannot go to advantage of accused.
(2) Inconsistencies in version of PWs as to whether there was a scuffle or not, raises serious doubts about prosecution case.
(3) Duty of appellate court is to consider and appreciate evidence adduced by prosecution and arrive at an independent conclusion.
Headnote:
(A) Indian Penal Code, 1860 – Sections 302 and 120B – Murder and conspiracy – Acquittal by High Court – Case of prosecution is that there was previous enmity between family of appellant and accused which is cause of murder of deceased – Witnesses who have deposed in court after considerable lapse of time, cannot be expected to have photographic memory of case – Inconsistencies in version of PWs as to whether there was a scuffle or not is not explained by prosecution which again raises serious doubts about prosecution case – Discrepancy between medical evidence and oral evidence assumes significance in view of elaborated depositions made by witnesses and FIR which explains minute detail of entire incident – Any act of commission/omission of Investigating Officer cannot go to advantage of accused – But in a case of this nature where FIR is said to have been registered within half an hour of occurrence and investigation also commenced then and there, no reason as to why empties and bursts from scene of occurrence were not recovered – There are also several lapses in investigation of case like non-recovery of empties fired from guns on deceased, non-recovery of fire arms used by respondents-accused – High Court has analysed entire evidence and recorded its finding as to how trial court has gone wrong in not appreciating material inconsistencies in prosecution case – Appeals dismissed. (Paras 20 to 25)
(B) Criminal Law – Appreciation of evidence – Any omission on part of Investigating Officer cannot go against prosecution case – If Investigating Officer has deliberately omitted to do what he ought to have done in interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of accused – Prosecution case cannot be doubted merely on the ground of non-recovery of weapons and other piece of evidence. (Para 22)
(C) Constitution of India – Article 136 – Duty of appellate court is to consider and appreciate evidence adduced by prosecution and arrive at an independent conclusion – Like trial court, appellate court also must be satisfied of its conclusion – Supreme Court would not ordinarily interfere with findings of High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in appraisement of evidence or such finding is perverse or arbitrary. (Para 24)
Facts of the case:
Instant appeals arise out of the impugned judgment dated 16.11.2018 passed by 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 charges under Sections 302 IPC and 120-B IPC. 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 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.
Findings of Court:
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 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 State of Uttar Pradesh are liable to be dismissed.
Result : Appeals dismissed.
JUDGMENT :
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 SLP(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 Teli-accused 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 Teli’s 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. 17.11.19
