Rakesh Kumar Pandey @ Daddu Pandey vs State of U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1560

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD, JJ.
Rakesh Kumar Pandey @ Daddu Pandey - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 3544 of 2012
Decided On : 22-12-2022

Advocates Appeared:
For the Appellant : Apul Misra, A.N. Pandey, D.M. Tripathi, Lav Srivastava, Prabha Shanker Mishra.
For the Respondent:Govt. Advocate, Sheshadri Trivedi.

Headnote:
Indian Penal Code, 1860 - Section 302 - Arms Act, 1959 - Section 3, 25 – Criminal Procedure Code, 1973 - Section 161, 437-A - Murder Offence – Appeal against Conviction - Deceased was going on his motorcycle - When he reached two persons fired on him due to which he died – Held, Improvement in statement of PW-3 over and above version of PW-2, seeking to explain lacunae in oral testimony of PW-2, generates sufficient doubt upon prosecution case so as to render it unfit for reliance - Once that be so, Court is not inclined to examine other aspects raised by defence including non-holding of test identification parade of accused appellant to determine his identity and judgments cited at bar on such aspect - Court below has accepted prosecution case relying upon testimony of PW-2 and PW-3 without subjecting it to careful scrutiny and analysis - PW-2 and PW-3 are chance and interested witnesses and their testimony leaves many unexplained aspects are left totally untouched - Court, therefore, do not approve judgment of conviction and sentence for reasons contained in judgment – Court find that prosecution has failed to establish guilt of accused appellant beyond all reasonable doubts - Appellant who has already undergone more than twelve years of actual incarceration is entitled to benefit of doubt in matter - Appeal allowed.

JUDGMENT :

Ashwani Kumar Mishra, J.

1. This appeal is directed against judgment and order passed by the Additional Sessions Judge (Ex-cadre), Court No.20, Allahabad, dated 31.7.2012, in Sessions Trial No.99 of 2006, arising out of Case Crime No.152 of 2005 under Section 302 IPC, Police Station Khuldabad, District Allahabad as well as in Sessions Trial No. 100 of 2006, arising out of Case Crime No.169 of 2005, under Section 3/25 of the Arms Act, Police Station Khuldabad, District Allahabad, convicting the accused appellant under Section 302 IPC read with Section 3/25 of the Arms Act and sentencing him to rigorous imprisonment for life and Rs.5,000/- fine under Section 302 IPC and on failure to deposit the fine to undergo additional rigorous imprisonment for a year; five years imprisonment under Section 3/25 of the Arms Act and Rs.2,000/- fine and on failure to deposit the fine to undergo additional imprisonment for six months. All punishments are to run concurrently.

2. First informant in the present case is one Sudhir Kumar Dwivedi (PW-1) who has lost his brother Suresh Kumar Dwivedi in the incident in question. Prosecution case is that the deceased was going on his motorcycle on 18.7.2005, at about 8.45 pm, from Rajrooppur to Beniganj in Allahabad. When he reached Chak Niratul Badi Maszid two persons fired on him due to which he died. The assailants fled towards Karbala. The incident is alleged to have been seen by Sushil Kumar Tripathi (PW-3), who happens to be the first cousin of the deceased and; Nagendra Kumar Dwivedi (PW-2), the nephew of the deceased; alongwith others and that they can recognize the assailants on seeing them, since there was sufficient light at the place of occurrence. On account of the incident members of public started running helter-skelter and an atmosphere of terror was created in the locality. The shutters of shops were pulled down and there was complete chaos.

3. The prosecution case further is that informant's other brother namely, Surendra Kumar Dwivedi was earlier killed on 14.5.2004. Accused Rakesh Kumar Pandey @ Daddu Pandey and Munna Pandey were accused of murdering him. The deceased Suresh Kumar Dwivedi was the informant in respect of murder of his brother Surendra Kumar Dwivedi. The bail application of accused Rakesh Kumar Pandey was allowed and he was enlarged on bail while that of Munna Pandey was rejected by the High Court. The deceased Suresh Kumar Dwivedi was to appear as the prosecution witness in that case and he has been eliminated so that he may not survive to support the prosecution case and accused Munna Pandey be released on bail. The Court is further informed that the prosecution in the murder case of Surendra Kumar Dwivedi ended in acquittal of accused as the main witness, namely Suresh Kumar Dwivedi, could not depose and other witnesses turned hostile.

4. The informant's family was allegedly on inimical terms with Awadh Narain Pandey and his two sons Rakesh Kumar Pandey @ Daddu Pandey i.e. accused appellant and Munna Pandey. This enmity is the alleged reason for commissioning of crime in this case.

5. The two eye-witnesses, who have come forward to support the prosecution version namely PW-2 and PW-3, are close relatives and the primary issue to be examined in this appeal is the credibility and reliability of these eye-witnesses. PW-1 is the first informant, who got the written report in respect of the above incident scribed from PW-3, on the basis of which the first information report was lodged and registered as Case Crime No. 152 of 2005, under Section 302 IPC. Two unknown persons were shown as accused in the FIR.

6. Pursuant to the FIR registered in this case the Investigating Officer collected bloodstained and plain earth from the place of occurrence vide Ex. Ka-4. The motorcycle of deceased was also recovered and was given in custody of the first informant. The inquest proceedings commenced at 6.30 am and ultimately concluded at 8.00 am on 19.7.2005. The delay apparently was