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IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Akhilesh @ Pappu – Appellant
Versus
State – Respondent
Criminal Appeal No.1217, 1300 of 1993
Decided on : 06-05-2022
Penal Code, 1860 - Section 302 read with Section 34 – Motive for the crime - Offence of Murder – Appeal against conviction - ANTE-MORTEM INJURIES-Death due to shock and haemorrhage as a result of antemortem injuries – Motive to commit murder - where the prosecution case is based on direct ocular account of the incident, if the court finds the same trustworthy and truthful, existence or non existence of motive for the crime is of no consequence -When a statement under section 161 CrPC is recorded, a witness may fail to make a disclosure may be because of his understanding that it is not material or may be because no question in that regard is put by the I.O – Para 37, 38
Finding of the Court :
Existence of the motive, the prosecution story is that a toilet was built by the deceased right in front of the house of the accused party, across the Kharanja, to which the accused party had been objecting and two days prior to the incident, the accused had threatened the deceased - existence of the motive, the prosecution story is that a toilet was built by the deceased right in front of the house of the accused party, across the Kharanja, to which the accused party had been objecting and two days prior to the incident, the accused had threatened the deceased - addition does not in any way alter the substratum of the prosecution case against Akhilesh rather it fills up the narrative by way of an answer to the question put to the witnesses during the course of their cross examination in court. Otherwise also, there appears truth in the ocular account and indirectly explains the travel of the bullet in a downward direction. In these circumstances, the participation of appellant-Akhilesh in the occurrence and sharing of common intention with co-accused Arvind to kill the deceased has also been proved beyond reasonable doubt.
Result: Appeals are dismissed
JUDGMENT :
Manoj Misra, J.
1. These two appeals question the judgment and order dated 07.07.1993 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Etawah in Sessions Trial No. 11 of 1992 convicting Arvind Kumar (appellant in Criminal Appeal No. 1300 of 1993), under Section 302 I.P.C., and Akhilesh @ Pappu (appellant in Criminal Appeal No. 1217 of 1993), under Section 302 read with Section 34 I.P.C., and sentencing them to imprisonment for life. As the two appeals arise from a common judgment and order, they are being decided by a common judgment and order.
INTRODUCTORY FACTS
2. On a written report (Exb. Ka-1), scribed by Dev Narayan Mishra (not examined), signed by Smt. Sobha Awasthi (PW-1), first information report (FIR) was registered at P.S. Auraiya, District Etawah on 21.08.1991 at 7.45 am, vide GD No. 15 (Exb. Ka-5) of which Chik FIR (Exb. Ka-4) was made/prepared by Srinarayan Awasthi (PW-6). It is alleged in the FIR that the accused-Arvind Kumar (appellant in Crl. Appeal No. 1300 of 1993) and Akhilesh @ Pappu (appellant in Crl. Appeal No. 1217 of 1993) are both sons of Kunwar Pal and they live across Kharanja (vertical brick-laid road), right in front of the informant's house. It is alleged that informant’s husband Satish Chand (the deceased) had built a latrine on the south eastern corner of her house which falls in front of Kunwar Pal's house. As the toilet was in front of Kunwar Pal’s house, Kunwar Pal and his sons were not happy with it and were building pressure on the deceased to remove the toilet, but the informant’s husband was not agreeable. Two days before the incident, the accused-appellants had threatened the informant in connection with that issue. It is alleged that in the night of 20/21.08.1991 while informant was sleeping in a room, on the southern side of her house and her husband (the deceased), her son (Saurabh) and daughters Km. Seema (PW-2) and Km. Tapasya were sleeping in the courtyard, where a lighted lantern was hanging as usual, at about 2 am, informant’s sleep got disturbed because of noise. When she woke up, she saw that her husband (the deceased) was engaged in a scuffle with Arvind whereas Arvind's brother (Akhilesh) was pressing the mouth of her daughter (Km Seema-PW-2) to restrain her from screaming. It is alleged that as soon as the informant raised an alarm, Akhilesh exhorted Arvind to finish off the deceased. Upon which, a shot was fired by Arvind at the deceased, who fell and died. After firing the shot, Arvind and Akhilesh escaped by scaling the wall of the south-east corner of a bathroom of her house. The informant alleged that there was a third person also, who was sitting on the wall and keeping a watch on the incident and as soon as the incident was over, he ran away. In the report it is alleged that the entire incident was witnessed in the light of the lantern. It was also alleged that Shyam Sundar Mishra (not examined) had also noticed these three accused jumping off the wall and escaping in the light of a torch. Informant alleged that the third person is not known to her but she can recognise him if he is produced in front of her. The FIR also alleges that an empty cartridge was found lying at the spot. Upon registration of the FIR, inquest was conducted by S.I. R.N. Sharma (not examined) under the direction of PW-5. The inquest report (Exb. Ka-6) describes the body as having been laid on a Chadar (bed-sheet) spread on the ground.
3. The autopsy was conducted by Dr. R.N. Sharma (PW-4) at about 3.30 pm on 22.08.1991. The autopsy report (Exb. Ka3) recites:-
Average body built, rigor mortis passed from both the extremities. Decomposition started. Skin peeling off at places. Abdomen, penis, scrotum distended.
ANTE-MORTEM INJURIES:
(i) Firearm wound of entry 1 cm x 1 cm x chest cavity deep on the anterio medial aspect of left shoulder 7 cm below to head of humerus. Margins inverted;
Blackening, tattooing and scorching around the wound;
(ii) Blackening, tatt
Credibility of Witness - As to when an improvement would affect the credibility of a witness, much would depend on the facts of a case apart from the nature of the improvement made Reserved
Point of law: If direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence
The court found the testimony of the eyewitnesses to be trustworthy and reliable, disregarding minor contradictions and inconsistencies in their statements.
A conviction cannot stand when there are significant contradictions between ocular and medical evidence, raising doubts about the prosecution's case.
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