Back
2002 (1) Crimes 712
ALLAHABAD HIGH COURT (DB)
J. C. Gupta and Imtiyaz Murtaza, JJ.
Shambhoo Silaran Pandey
& Ors. -Accused Applicants (In Jail)
versus
State of U.P. -Opp. Party
Criminal Appeal No. 2079 of 1986
connected with Criminal Appeal No. 2128 of 1986
Decided on 15-1-2002
Counsel for the parties:
For the Applicants: Sri O.P. Misra. Sri G.S. Chaturvedi and Sri G.D. Misra. Advocates.
For the Opp. Party: Sri P.N. Misra. Advocate and Sri Apul Misra. A.G.A.
IMPORTANT POINT
Motive in a criminal case could at best give rise to a suspicion only and suspicion however strong could not be a substitute of legal proof.
Headnote:(i) Indian Penal Code, 1860- Sections 302/120-B- Deceased was shot dead at about 9.30 P.M. Appellants A1 and A2 were alleged to have had hatched conspiracy and murder was committed by appellant A3 with other accused A4 (since deceased) - PW 7 and PW 8 claimed to be an eye witness of occurrence - Deceased was manager in college and appellant A1 as Principal in the college was removed by deceased A2 was son of A1 - Appeal against conviction - Accused were not named in FIR nor in the statement given by witnesses during investigation - Test identification parade wherein witnesses PW 7 and PW 8 identified appellants was held after 168 days of occurrence - Witnesses claimed to have seen appellants in moon light while they were on bicycles and shot at deceased who was in a rickshaw - PW 7 and PW 8 did not disclose to District Magistrate or Superintendent of Police in hospital that there were two assailants and that they had seen them - Strange conduct of witnesses made their evidence highly unbelievable - Motive alone could not be a circumstance to uphold conviction - Conviction was liable to be set-aside. (Paras 8 & 10)
(ii) Indian Penal Code, 1860 Section 120-B - Criminal conspiracy -Can be inferred from proved circumstances - Facts established must rule out any likelihood of innocence of accused - If there are circumstances compatible with innocence of accused, prosecution will fail. (Para 9)
Result: Appeal allowed.
ORDER
J.C. Gupta, J. - Criminal Appeal No. 2079 of 1986 is by Shambhoo Sharan Pandey and his son Kaushal Kumar Pandey against their conviction and sentence for imprisonment of life under Sections 120-B 302 I.P.C. The connected Criminal Appeal No. 2128 of 1986 has been preferred by accused convict Dinesh Chandra Misra who has been sentenced to imprisonment for life under Section 120-B/302 I.P.C. It may be mentioned here that one more accused Ranjeet Singh was also tried but since he died during the pendency of trial his case stood abated.
2. The prosecution case in short was that deceased Shiv Harsh Upadhyay was manager of Kisan Degree College. Basti. He was shot at about 9.30 p.m. on 31-7-1980 near Kisan Degree College. Civil Lines. Basti. A telephone message from Sri Chandra Deo Dwivedi (P.W. 3) was received at police station Kotwali at 9.36 p.m. that Sri Shiv Harsh Opadhyay has been shot in front of his house and he has been sent to hospital. Injuries of Sri Shiv Harsh Upadhyay were medically examined at 9.45 p.m. and information was sent for recording his dying declaration but before the same could be recorded Sri Upadhyay breathed his last and died at 10.05 p.m. in the same night. Thereafter the case was converted under section 302 I.P.C. On a request made by the District Magistrate. Basti. Sri Ganga Prasad Dwivedi. Deputy Secretary. State of U.P. made a request to Inspector General C.B. C.I.D. to get the case investigated through C.B., C.I.D. During the investigation it was found that appellant Shambhoo Saran Pandey was officiating as Principal of Kisan Degree College thereinafter referred to as the Degree College. Deceased Shiv Harsh Upadhyay was Manager of the said Degree College. Sri Surendra Nath Dubey (P.W. 3) was appointed as Principal in place of appellant Shambhoo Saran Pandey. In the capacity of Manager the deceased gave a telegram Ext. Ka-2 to Sri S.N. Dubey. Lecturer. Rajasthan University. Jaipur to join as Principal of the Degree College, Whereupon Sri, S.N. Dubey joined the Degree College as Principal but accused appellant Sri Shambhoo Saran Pandey did not hand over the complete charge of the office of Principal despite efforts and requests of Sri S.N. Dubey. The matter was then finally reported to the manager Sri Upadhyay who directed the stoppage of pay of Shambhoo Saran Pandey and then in his order dated 28-7 -1980 he found a prima facie case of misappropriation against Sri Shambhoo Saran Pandey and further directed recovery of embezzled amount from him. It is the further case of prosecution that Sri Upadhyay wrote a letter to the Secretary of the College requesting that an urgent meeting be called for suspending the appellant Shambhoo Saran Pandey. The appellant Shambhoo Saran Pandey and his son Kaushal Kumar Pandey were thus highly aggrieved on account of actions taken by deceased Manager, Sri Upadhyay. In short, as per prosecution case the appellants Shambhoo Saran Pandey and Kaushal Kumar Pandey bad a strong motive to eliminate deceased manager Sri Upadhyay and in order to achieve this object they had hatched a criminal conspiracy with Dinesh Chandra Misra and Ranjeet Singh to commit murder of Sri Upadhyay. Consequently on 31-7-1980 at about 9.30 p.m. Dinesh Chandra Misra and Ranjeet Singh both fired at deceased Sri Upadhyay infront of his house and at that time appellant Shambhoo Saran Pandey and Kaushal Kumar Pandey were seen standing on a scooter near the place of incident.
3. In order to prove its case the prosecution produced before the trial court as many as 20 witnesses. They were P.W. 1 Sri Chandra Deo Dwivedi, P.W. 2. Shiv Pujan Dubey, P.W. 3, S.N. Dubey, P.W.4 Chandrika Prasad Advocate, P.W. 5, Jabbar (Rickshaw puller), P.W. 6. Head Constable Bodh Nath Tripathi, P.W. 7 Manik Ram Misra, P.W. 8 Raj Bahadur Singh, P.W. 9 Ram Surner Yadav P.W. 10, Constable Ram Bahadur Singh, P.W. 11 Constable Viknimaditya, P.W. 12 Dr. B.P. Shukla, P.W. 13 Sri Ram Yagya Singh, Magistrate who conducted identificat
