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2011 Supreme(All) 2221
[2011(7) ADJ 835 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMTIYAZ MURTAZA AND NAHEED ARA MOONIS, JJ.
AJAI PRAKASH MISHRA .....Appellant
Versus
STATE OF U.P. .....Opposite Party
(Criminal Appeal Nos. 3682, 2487 and Government Appeal No 7731 of 2008, decided on 5th August, 2011)
Counsel :
Anubhav Trivedi, Dileep Kumar, Rajashi Gupta, Rajeev Gupta and Satish Trivedi fo the Appellant; G.A. and Ajatshatra Pandey for the Respondents.
Headnote:(A) (Indian) Penal Code, 1860—Sections 302, 201 and 306—Criminal Procedure Code, 1973—Sections 161, 313 and 315—Evidence Act, 1872—Section 12—Murder—Conviction—Sustainability of—Case based on circumstantial evidence—Author of FIR is wife of deceased—Accused in their statements set out a different version symptomatic of lack of good equation between deceased and his wife—Time and occurrence is not called in question—Concededly, place of occurrence is house of appellants—Various calls were made by deceased to appellants on phone—When positive evidence against accused is clear in relation to offence—Motive is not of such importance—Mere absence of motive even if assumed will not entitle accused to acquittal—Conviction of accused cannot be based merely on statement made under Section 313 of Code—It cannot be recorded as substantive peace of evidence—No alcohal was detected by doctors—Statement of accused that deceased was taking liquor is not false—As deceased himself informed his wife that he had been offered liquor by appellants—Deceased committed suicide as there was blackening of skin around wound—Merely on account of absence of stitches in medical examination report—Cannot be assumed that accused had deliberately delayed giving immediate medical aid to deceased—Deceased had made three calls to appellants to open door of house of appellants—No denying that wife of deceased received telephone calls from appellant that deceased sustained fire-arm injury—Conduct of appellant not doubtful—Possibility cannot be ruled out that deceased committed suicide. [Paras 6, 28, 37, 43, 46, 47, 48, 52, 55 and 56]
(B) Evidence Act, 1872—Section 32—Statement of deceased—Admissibility of—It is admissible only to extent of proving cause or circumstances of transaction—Which resulted in death of deceased—However, statement should have close nexus with actual transaction. [Paras 33]
Hon’ble Imtiyaz Murtaza, J.—Challenge in Criminal Appeal No 3682 of 2008 and connected Criminal Appeal No 2487 of 2008 is to the judgment and order dated 11.4.2008 rendered by Additional Sessions Judge (F.T.C.) Room No. 20 Allahabad in S.T. No. 1154 of 2005, State v. Ajai Prakash Mishra and others whereby the learned Additional Sessions Judge recorded verdict of conviction against appellant Ajai Prakash Mishra under Section 302 and awarded imprisonment for life attended with fine to the tune of Rs. 5000/-. However, he was acquitted of the charge under Section 201 I.P.C. On the contrary, the Government Appeal has been preferred impugning the verdict of acquittal of accused under Section 201 IPC The appellant Jaya Mishra was convicted under Section 302 I.P.C. and she was punished with sentence of imprisonment for life attended with fine to the tune of Rs. 5000/-. However, she was acquitted of the charge under Section 201 I.P.C.
2. Since the above appeals originate from one and the same judgment, the same were heard together and are being decided by a composite judgment/order.
3. The author of the F.I.R. is Smt. Archana Tulsiyani wife of deceased Deepak Tulsiyani and according to the written report lodged on 25.4.2005, she alleged that at about 12.30 in the intervening night of 24th and 25th April, 2005, her husband Deepak Tulsiyani had been shot dead by the appellants. It was further alleged that at about 10.30 p.m., appellant Jaya Mishra made a call to her husband asking him to come over to her residence situated in Tagore town. It is further alleged that her husband was not drunk when he left the house. It is further alleged that at about 11.45 p.m. She made a call to her husband and enquired why he was getting late upon which he informed that the appellants were insisting to drink liquor and that he would be back within 15 to 20 minutes. It is further alleged that about 12.30, she received a telephonic call from appellant Jaya Mishra in which she called upon her to rush to her (appellant) house as Deepak Tulsiyani had been hit by a bullet. Upon receiving this information, she rushed to the house of appellant but there was none at the said house. Immediately thereafter, a phone call was received asking her to rush to Ojha Nursing Home. Upon reaching the said nursing home, she saw her husband drenched in blood and he had received bullet injury in his head. The F.I.R. was registered at case crime No. 69 of 2005 under Section 302 I.P.C. at P.S. George Town and investigation of the case was taken over by Sri D.D.Shukla, Station Officer, P.S. George Town Allahabad.
4. The aforesaid Station Officer conducted investigation of the case in the manner the details of which have been set out in the judgment of the Court below. A team of ballistic expert was also called for from Lucknow which began its investigation on 27.4.2005. The police in the course of investigation also recovered pistol and magazine, one empty cartridge and four live cartridges and bullet and all the recovered items were sealed. The Investigating Officer also seized one pair of chappals, two mobile set and and Santro car and the above items were entrusted to the care of Rajiv Nayyar, the brother- in-law of the deceased. It is further mentioned that the accused Ajai Mishra was arrested from his house at 1.30 p.m. on 28.4.2005 and on 30.4.2005, appellant Jaya Mishra was taken into custody with the aid of Smt. Anjana Gupta, Station Officer, police station Mahila Thana. On 11.5.2005, it is mentioned, the statements of Panchnama witnesses were recorded. On 11.5.2005, the recovered items were docketed and sent for examination. On 20.5.2005, the statements of remaining witnesses of inquest were recorded. On the same day, statement of Dr. Satish Kumar Patel serving in Ojha Nursing Home and Dr. Mukul Singh serving in Raj Nursing Home were recorded. On 25.5.2005, statement of Km. Noori, maid-servant of appellant was recorded. In ultimate analysis, the charge sheet was sub
