Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1293

IN THE HIGH COURT OF ALLAHABAD
Attau Rahman Masoodi, Manish Kumar, JJ.
Vishal Gupta – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 1181 & 1479 of 2008
Decided On : 01-12-2021

Advocates:
Advocate Appeared:
For the Appellant : Nadeem Murtaza, Ashok Kumar Verma, Pradeep Kumar Tripathi, Ramesh Chandra Gupta, Shivaam Shaarma, Sidharth Dhaon, Subodh Kumar Shukla, Sushil Shukla, Yogesh Bhasin
For the Respondent:Govt. Advocate, Salik Kumar Srivastava

Point of Law: As the medical evidence does not support the manner of assault on the victim. It also lends support to the defence case, such a wound could not be possible looking to the position of the victim & persons firing her. It does throw a doubt on the truthfulness of prosecution story and result in some doubt about it.

Headnote:
Indian Penal Code,1860 - Sections 302, 120B and 307 - Criminal Procedure Code,1973 - Sections 313, 161 and 157 - Offence of murder - Examination of accused - Complainant along with his daughters son were present at home, at that time appellants Gupta along with one unknown person knocked door and on opening door, they barged into house having in their hands - Three accused persons indiscriminately fired on his daughter wife with intention to kill her while she was sitting with her sisters in second room - On shouting, they ran away - Neighbours in fear closed their windows and doors - Complainant took her daughter to Awadh Hospital where doctor declared her brought dead first wife of present appellants kept enmity with the deceased and her husband Ajay Gupta - After two years of marriage with deceased.
Finding of the Court:
Investigating Officer to collect any information from densely populated neighborhood was a clear abuse of investigation once he acted so promptly as is evident from the record - Credibility of such a testimony by any stretch of imagination does not satisfy standard of beyond reasonable doubt unless material gaps were filled by investigation - Case of prosecution had no legs to stand irrespective of fact how strong corroborative evidence collected by investigation was claimed to be - Definite stand of the witness (PW-1) belie his residual testimony - Judgment impugned heavily relying upon direct evidence of PW-1 is erroneous, perverse and shocking to conscious of justice - Witness whose testimony is tainted must be visited with a consequence issue is left open in an appropriate case - Testimony of PW-1 being main witness was peculiar hence deemed proper to be dealt with in the light of what has been recorded.
Result: Appeals are allowed

JUDGMENT :

Manish Kumar, J.

The aforesaid criminal appeals arising out of the same crime were heard together and are being decided by a common judgment.

1. The two criminal appeals have been filed against the common judgment and order dated 23.04.2008 passed by Additional Sessions Judge, Court No. 1, Lucknow in Sessions Trial Nos. 140 of 2007 (State Vs. Alok Gupta), 520 of 2006 (State Vs. Smt. Kalpana) and 644 of 2005 (State Vs. Vishal Gupta) relating to Case Crime No. 129 of 2004, under Sections 302, 120 B IPC, Police Station Ashiyana (CBCID), whereby, the appellants have been convicted under Section 302 IPC and sentenced to life imprisonment and fine of Rs. 10,000/-and in default of payment of fine, they shall undergo rigorous imprisonment for a further period of one year, whereas, Smt. Kalpana was acquitted.

2. We have heard Shri Pradeep Kumar Tripathi, learned counsel, who appeared for the appellants. Shri Vaibhav Kaliya, learned counsel, on our request, volunteered to assist the Court and was permitted to do so on behalf of the appellants. Shri Umesh Verma, learned Additional Government Advocate appeared for the State. Learned counsel for the parties argued at length and took us through the record.

3. According to the prosecution case, on 29.08.2004 an FIR was lodged under Section 302/120-B IPC by the complainant, who was the father of the deceased/PW-1-Ashok Gupta, at about 5.25 P.M. stating therein that on 29.08.2004 at around 5.00 P.M., when the complainant along with his daughters namely, Alka, Anita, Aparajita, Anamika and son-Sachin were present at home, at that time the appellants namely, Alok Gupta and Vishal Gupta along with one unknown person knocked the door and on opening the door, they barged into the house having Tamancha in their hands. The three accused persons indiscriminately fired on his daughter namely Aparajita, wife of Ajay Gupta with the intention to kill her while she was sitting with her sisters in the second room. On shouting, they ran away. The neighbours in fear closed their windows and doors. Thereafter, the complainant took her daughter to the Awadh Hospital where the doctor declared her brought dead. Smt. Kalpana Gupta is the first wife of the Ajay Gupta, thus, the present appellants kept enmity with the deceased and her husband Ajay Gupta. After two years of marriage of Ajay Gupta with the deceased, they had kidnapped him and for that the FIR was lodged at Sitapur. The Kalpana Gupta instigated his brothers i.e. the present appellants to murder the daughter of the complainant.

4. After investigation, the charge sheet was filed under Section 302 read with Section 120-B IPC in the Court concerned against the present appellants. Thereafter, the trial court framed charges against the appellants under Section 302 read Section 120-B IPC for hatching the conspiracy along with other co-accused namely, Kalpana Gupta.

5. The prosecution in order to prove its case had produced four witnesses of fact namely Ashok Kumar Gupta (the complainant and father of the deceased) as PW-1, Sachin Gupta( the brother of the deceased) as PW 2, Sudheer Kumar Gupta as PW -3 (private servant of Ajay Gupta), Ajay Gupta (the husband of the deceased) as PW-4 and also produced four formal witnesses i.e. Dr. Harshwardhan as PW-5, HCP Raj Kumar Srivastava as PW-6, Inspector Rangeela Singh as PW-7 and Arjun Prasad Mishra as PW-8.

6. As documentary evidences, the prosecution has proved the copy of FIR as Ext. Ka-7, the Post Mortem Report as Ext-Ka-6, Forensic Report as Ext. Ka-20, Recovery memo as Ext Ka-3, Recovery memo as Ext. Ka4, Recovery Memo as Ext. Ka-5, Chik FIR as Ext. Ka-7, Extract of chick report in GD as Ext. Ka-8, Inquest Report as Ext. Ka-2, Preparation of Inquest Report and got prepared other relevant papers as Ext. Ka-9, Photo Lass as Ext. Ka-10, Letter of the police form of sending the dead body to the headquarter as Ext. Ka-11, Sample seal as Ext. Ka 12, Spot where the site plan was prepared as Ext. Ka-13 and recovery