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2020 Supreme(All) 371
IN THE HIGH COURT OF ALLAHABAD
Ramesh Sinha, Ajit Kumar, JJ.
Nishu @ Brijesh Dixit And Others - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. - 5194 of 2013
Decided On : 22-04-2020
For the Appellant : Apul Misra, Amit Tripathi, Anees Ahmad, Arvendra Singh, Pradeep Saxena, Pravin Kumar, Rakesh Kumar Rathore
For the Respondent:Govt. Advocate, N.K.Maurya, Vinay Saran
Point of Law:
It is first duty of the prosecution to establish its case beyond reasonable doubt against the accused than to question the accused for their false implication
Headnote:
Penal Code, 1860 – Sections 302/120B – Conviction – Offence of Murder – Criminal Conspiracy – Whether conviction justified – Held, PW1 as he was having no enmity with them, but in this regard it is to be noted that it is first duty of the prosecution to establish its case beyond reasonable doubt against the accused than to question the accused for their false implication which the prosecution has failed to prove its case beyond reasonable doubt against the appellants – PW1 Ghurai Lal Gupta was being guided by some one for falsely implicating persons for oblique motives and one of the co-accused Chandan Tiwari who was further implicated by him during the course of investigation and arrayed as an accused during the investigation, was put to trial and ultimately acquitted by the trial Court finding his involvement to be false – Conviction set aside – Appeal allowed
Facts of the Case:
On 12.12.2006 at about 4.35 p.m. in the evening he along with his wife Smt. Ram Khushi and his son Ambarish Kumar Gupta alias Guddu was returning after taking medicine on his car from Mainpuri to their house. As soon as his car had come down to District Hospital and entered in the Kasba, Nishu, son of Lalit Dixit, Lalit Dixit son of Bal Kishan Dixit, resident of Mohalla Markichiya, Kasba and Thana Bewar, Chandan Kumar son of Nand Kishore Gupta, resident of Mohalla Brahmnand, Kasba and Thana Bewar, District Mainpuri, who were armed with country-made pistols stopped his car by giving a call. As soon as the car stopped, the aforesaid three accused came to the window of the car and after opening the window, Nishu Dixit and Chandan Kumar forcibly took out Am
Finding of the Court:
PW1 as he was having no enmity with them, but in this regard it is to be noted that it is first duty of the prosecution to establish its case beyond reasonable doubt against the accused than to question the accused for their false implication which the prosecution has failed to prove its case beyond reasonable doubt against the appellants – PW1 Ghurai Lal Gupta was being guided by some one for falsely implicating persons for oblique motives and one of the co-accused Chandan Tiwari who was further implicated by him during the course of investigation and arrayed as an accused during the investigation, was put to trial and ultimately acquitted by the trial Court finding his involvement to be false
Result: Appeal allowed
JUDGMENT :
Ramesh Sinha, J.
1. The present Criminal Appeal has been preferred against the judgment and order dated 30.10.2013 passed by the Additional Sessions Judge/Special Judge (S.C./S.T. P.A. Act), Mainpuri in Crime No.541 of 2006, Police Station Bewar, District Mainpuri giving rise to S.T. No.332 of 2007 (State Vs. Nishu @ Brijesh Dixit and others) convicting the appellant no.1 Nishu @ Brijesh Dixit and appellant no.3 Chandan Kumar under Sections 302/120B I.P.C. and sentencing both of them to imprisonment for life along with fine of Rs.10,000/-and in default of the payment of fine to further undergo six months' Simple Imprisonment. Further convicting appellant no.2 Lalit Dixit under Sections 302/120-B I.P.C. and sentencing him to imprisonment for life along with fine of Rs.20,000/-and in default of the payment of fine to further undergo one year's Simple Imprisonment. Further convicting the appellant no.2 Lalit Dixit under Section 504 I.P.C. and sentenced to one year's Rigorous Imprisonment. Further convicting all the three appellants under Sections 384/120-B I.P.C. and sentencing each of them to three years Rigorous Imprisonment. All the sentences were directed to run congruently.
2. The prosecution case as has come up in the FIR lodged by PW1-Ghurai Lal who submitted a written report on 13.12.2006 (Ext. Ka.1) narrating therein that he is a permanent resident of Quazi Tola West, Kasba and Police Station Bewar,District Mainpuri. On 12.12.2006 at about 4.35 p.m. in the evening he along with his wife Smt. Ram Khushi and his son Ambarish Kumar Gupta alias Guddu was returning after taking medicine on his car from Mainpuri to their house. As soon as his car had come down to District Hospital and entered in the Kasba, Nishu, son of Lalit Dixit, Lalit Dixit son of Bal Kishan Dixit, resident of Mohalla Markichiya, Kasba and Thana Bewar, Chandan Kumar son of Nand Kishore Gupta, resident of Mohalla Brahmnand, Kasba and Thana Bewar, District Mainpuri, who were armed with country-made pistols stopped his car by giving a call. As soon as the car stopped, the aforesaid three accused came to the window of the car and after opening the window, Nishu Dixit and Chandan Kumar forcibly took out Ambarish Kumar from the car and by hurling abuses uttered that he poses himself to be a big ration dealer, he will have to give them ration and kerosene oil without any ration card and further have to pay Rs.5,000/- per month to them. On which, Ambarish told that he will distribute the ration as per the rules and he will not pay any form of Chauth (Gunda Tax). On this, Lalit Dixit while hurling abuses stated that since he is becoming a leader, he will not concede and exhorted to kill him and then Nishu Dixit and Chandan Kumar fired shot with their respective country-made pistols with an intention to kill Ambarish, on account of which Ambarish was seriously injured. Thereafter the informant raised alarm to save his son and the aforesaid three accused persons had fled away by displaying their firearms which they were carrying in their hands and by firing shot in the air and because of the terror of the accused persons, all the shop keepers fled away by closing down the shutter of their shops. The informant and his wife took his seriously injured son to the District Hospital, Mainpuri on their own car from where his son was referred to Agra as his condition was critical and in Kamayani Hospital, Agra his son died during treatment. After bringing back the dead body he has come to report.
3. On the basis of the written report submitted to the police station concerned, the First Information Report of the incident was lodged on 13.12.2006 (Ext. Ka.3) by PW1 Ghurai Lal which was registered as Case Crime No.541 of 2006, under Sections 302, 384, 504, 506 I.P.C. and under Section 7 Criminal Law Amendment Act which was registered as Police Station Bewar, District Mainpuri. The relevant entries were made in G.D.No.4 at 4 a.m. on the same day being Ext. Ka.4. The inves
