HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Appeal No.3682 of 2008 Ajai Prakash Mishra .....................v..........................State of U.P. Connected with Criminal Appeal No.2487 of 2008 Jaya Mishra............................v.............................State of U.P. And Government Appeal No 7731 of 2008 State of U.P ...............V................Ajai Prakash Mishra and another Hon.Imtiyaz Murtaza,J.
Hon.Naheed Ara Moonis,J.
(Delivered by Hon. 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 vs. 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.
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.
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.
The aforesaid Station Officer conducted investigation of the case in the manner the details of which have been set out in the judgement 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 submitted in the court under Section 302 and 201 I.P.C. On 4.6.2005, the case was committed to the court of Sessions.
The prosecution in order to substantiate its case, examined as many as 8 witnesses namely Anil Tulsiyani, P.W.1, Dr.(Major) Vipul Kumar, who medically examined the deceased as P.W.2, Dr. Shiv Prasad Gupta P.W.3, who conducted post mortem on the body of the deceased, Rajeev Nayyar P.W.4, H.C.P. Bhagwan Das P.W.5, S.I. Santosh Kumar Tiwari, who prepared inquest report, Archana Tulsiyani P.W.7 wife of deceased Deepak Tulsiyani and Investigating Officer D.D.Shukla P.W.8.
The accused in their statements recorded under Section 313 Cr.P.C. abjured the guilt and also incriminating evidence against them. They pleaded that they have been implicated in a false case and they claimed to be innocent. The accused in their statements set out a different version symptomatic of lack of good equation between the deceased and his wife. The accused stated that on 29.3.2005, Archna Tulsiyani had gone to Delhi along with her sister, her children and her maid servant Noori and she told her husband that she was going to Delhi to meet the brother-in-law of Deepak, namely Pramod Mishra but it was discovered that instead of reaching there on 30.3.2005, she reached the house of Pramod Misra on 3.4.2005 and this had created hiatus and had paved way for distraught relations between them. It is further stated that on 24.4.2005, the deceased has made a call to the appellant and talked about strained relation between him and his wife upon which it was suggested to him that he should endeavour to smoothen and repair the frayed relations by offering to take her on a ride to a restaurant and also to picture hall and heeding to the advice, the deceased had taken his wife and children to Chandralok Cinema in the show scheduled between 9 to 12 p.m. but leaving the picture half way, they returned to their residence at Allahpur and from there Deepak came to their house but at that time the appellants had gone to have dinner at Hot Stuff. After having dinner, they came to their house and after locking the door from inside, they went to bed for sleeping. At about 10.11 p.m., the deceased made a call on their land-line phone and when they picked up the phone and found it to be from the deceased since they were fed up listening to his grouse about his wife, they initially put the receiver back to cradle but again the deceased made the call upon which he advised him to come next day but the deceased again rang up and upon his insistence, the appellant allowed Deepak inside his house. The deceased sat on Sofa placed in the drawing room before A.C. and began consuming liquor from the bottle which he had brought with himself and at the same time, was murmuring grouse against his wife. It is further alleged that the deceased was again advised to go back to his house but he continued to murmur the grouse against his wife. In between the period, the appellants heard deceased exchanging hot words with his wife and amidst talks, the deceased also abused his wife and thereafter, whipped out pistol and shot at himself. The appellant Ajai Mishra thereafter rang up Archana informing her about the incident and asked her to rush immediately. The appellants denied that the deceased had lent any amount to them nor any item was taken by the appellants on credit from the hardware shop of the deceased. They also denied any bickering with Deepak or Archana. The appellants also stated in their statements under Section 313 Cr.P.C. that immediately after the deceased had shot himself, he was rushed to nearby nursing home known as Ojha Nursing Home where Archana had also arrived and thereafter, on the insistence of Archana, the deceased was rushed to Preeti Hospital but when Dr. Kartikey Sharma refused to come over in the dead of night on the plea that after his abduction, he avoided going on in the night, the deceased was taken to Raj Nursing Home where the deceased attended to by Dr. D.R. Singh. From Raj Nursing Home, the deceased was rushed to S.R.N. Medical Hospital. It is further stated that after the treatment had commenced in Medical College, the appellants at about 2.04 a.m. went to police station George Town and informed the police about the incident and gave a written report as well which the S.O. Sri D.D.Shukla kept in his pocket stating that he would do the needful and informed his higher ups on R.T. Set about the incident. They also stated that owing to some extrinsic pressure, the police did not record his report in G.D. and subsequently, the case under Section 302 I.P.C. was foisted upon them. At about 3 a.m., they were taken in police jeep initially to S.R.N. Hospital and from there they were taken to the place of incident and again they were taken to police station. Subsequently, the S.O. had a talk with his higher ups in the police department and he heard him saying that it was a case of suicide. Next day they were honourably let off at about 1.30 p.m. from the police station. The appellants also stated that Archana on being inveigled by Anil Tulsiyani, who was an arch enemy of Deepak and further to screen herself from the offence under Section 306 I.P.C. and also regard being had to the fact that Sindhi community may not speak evil about her and also with avowed object of usurping lacs of rupees of L.I.C. Policy, concocted the false case of deceased being shot at by the appellants. It was also stated that Anil Tulsiyani is stated to have been instrumental in the murder of father of Deepak Tulsiyani namely Kishan Lal Tulsiyani and on this count, Anil Tulsiyani was looked down upon in Sindhi community and also the family members of Deepak deceased and to wash out the stigma, Anil Tulsiyani enacted the entire drama.
The appellants in support of defence, examined Sri Rajendra Singh as D.W.1, Sub Inspector Sri R.K. Bhargava as P.W.2, Sri Brahmanand Srivastava, who was serving in BSNL as D.W.3 and Sri Kaushik Ghoshal an officer in Vediocon as P.W.4, Sri Prem Shanker Maurya, Record Keeper Blood Bank S.R.N. Hospital as D.W.5, Sri Rajeev Singh an officer in B.S.N.L. as D.W.6, Sri Surendra Kumar Srivastava an officer in Reliance Mobile as D.W.7 and Sri Brijesh Kumar Srivastava as D.W.8.
The trial court on appraisal of the entire evidence on record held the appellants guilty of the charges and convicted them under Section 302 I.P.C. However, the appellants were acquitted of the charges under Section 201 I.P.C..
Feeling dissatisfied with the judgment of the court below, the appellants have preferred the instant appeals. State has filed appeal against acquittal of appellants under Section 201 I.P.C.
Sarvasri Satish Trivedi, and V.P.Srivastava, Senior Advocates and Sri Dileep Gupta, Advocate appearing for the appellants contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the appellants. He also argued that the witnesses have given a concocted version which casts severe doubts about truthfulness of the prosecution case. It was also submitted that there is no reliable evidence brought on record to prove that the appellants had any motive to commit murder of the deceased and in the absence of such evidence, the appellants could not be convicted for offences punishable under Section 302 I.P.C.
Learned Additional Government Advocate for the State and Sri Gopal Chaturvedi Senior Advocate for the complainant propped up the findings recorded by the trial court.
In order to appreciate the aforesaid rival contentions of the learned counsel for the parties, we have independently scrutinized the oral and documentary evidence appearing on record.
The first witness is Anil Tulsiyani who owns Tulsiyani Plaza in which one of the shop was assigned to the deceased for a consideration of Rs.2 lac and 37 thousand and the deceased was also given possession thereof. He claims to be related to the deceased as his cousin. He also deposed that the execution of sale deed was deferred by the deceased. To begin with he deposed that Deepak was murdered in the house of appellants on 25.4.2005 and that the post mortem on the body of the deceased was conducted on 26.4.2005 at 7.20 a.m. and that at the time of inquest he was present but he was not one of the witnesses of the inquest report. He further deposed that when the deceased was asked to expedite execution of sale deed, he spoke about lending of a sum to the tune of Rs.4 lac to the appellants in bits on various dates followed by articles of hardwares from his shop costing Rs.1 lac and therefore, he was, at that time, strapped for cash. It was also divulged by the deceased that whenever he demanded the amount back, the appellant Ajai Mishra parried the issue of refund of money. Upon being insisted as to why the deceased was not taking any legal action against the appellant, he expressed apprehension that the appellant could do away with him and on account of his being connected with legal profession, he could also welsh upon repaying the amount attended with disclosure that he was trying persuasive measures to get back the amount from the appellant. It was also disclosed by the deceased that he needed money as his house in civil lines was under construction and that it appeared to him that the appellants had turned dishonest. It was also deposed that the deceased requested him not to let his wife know about it or she would feel cheated and would take umbrage. The witness also deposed that he could now realise that the appellants had befriended Deepak more intimately so that he would not demand back the money and that when he demanded his money back from the appellants, they made a collusive combination and committed murder of the deceased.
In cross examination, the witness stated that on 24.5.2005 he had gone to Lucknow and was back to Allahabad on 25.5.2005 at about 3.45 or 4 a.m.. He also stated that he got news about the death of Deepak at about 3.45 a.m. on his mobile phone. He also deposed that he had gone to Lucknow along with 2 to 3 persons. One of the person accompanying him was his acquaintance namely Pandey and his Driver. He had gone to Lucknow on a car. He also deposed that the news of death was conveyed to him from the family members of Pandey Ji. He did not enquire from the family members of Pandey Ji as to who had informed them about the death. On getting news of the death of Deepak, he along with Pandey Ji rushed to hospital. He left for hospital after meeting his mother alone. He also stated that his mother informed him that his younger brother Mahesh had already left for hospital. On reaching hospital, he saw his brother Mahesh and Naresh. Nirmal brother of Deepak was also present at the hospital. Few people of locality were also present in the hospital. He also stated that in the hospital his cousin sister Jyoti and Archana Tulsiyani wife of deceased were also present. He also stated that Jyoti was the real sister of deceased Deepak and Raju Nayyar was the husband of Jyoti. He did not see Raju Nayyar there at the hospital. He further stated that when he reached the hospital, the body of deceased was in the process of being taken to mortuary on a trolley. All the people were seen standing outside Emergency Ward and that on reaching hospital, he did not go inside the room as by that time, Deepak had breathed his last. Some of the people accompanied the body to Mortuary while he stayed back for Panchanama. He also stated that before inquest he did not come across any of the policemen. He also stated that before the inquest could commence, Raju Nayyar had reached mortuary. He also stated that he had for the first time seen Raju Nayyar. He also stated that at the time of inquest, two to three policemen were present. He could not exactly tell the number of Sub Inspectors or police constables present there. He also stated that cremation of Deepak was done the same day at about 4.30 p.m. and that he had stayed there upto 7.30 p.m. He could not tell whether any police personnel was present at the scene of cremation. He also could not tell that any of the police personnel who conducted inquest ever met him thereafter. He also could not tell that the Sub Inspector who recorded his statement had met him after recording his statement. He gave the statement before the police for the first time that the deceased had lent a sum to the tune of Rs.4 lacs followed by articles of hardware costing Rs. 1 lakh to the appellants. After he had given this statement to the Sub Inspector who recorded his statement, he also conveyed this information to other family members including Archana Tulsiyani. He could not tell whether the police knew about lending of money to appellants by deceased or that Archana Tulsiyani knew the fact of lending money to appellants by the deceased . He clarified in his cross examination that the deceased had disclosed to him about lending of money and hardware articles aggregating to Rs.5 lacs in the month of March. He could not tell whether any entry was made by the deceased in any of the account book or he had noted it on any scrip. He also stated that he pursued the legal battle seeking cancellation of bail upto Supreme Court and at times he swore the affidavit and at times, it was Archana Tulsiyani who swore the affidavit. He also stated that he filed the affidavit claiming to be pairokar of Archana Tulsiyani. He also stated that one of the shops in Tulsiyani Plaza was assigned to the deceased for a consideration of Rs.2,37000/- for which sale deed was yet to be executed but possession was given. The agreement was also reduced to writing and receipt was also executed. He denied to have given copies of the said documents to the Investigating Officer nor the same were brought on record in this case as the same were not required by the court. He admitted to have averred in his affidavit filed in the matter of bail of the appellants that he had sold off the shop and in this connection he had accepted Rs.2,56,000/- as an advance. He explained that the actual cost of the shop was Rs.2,37,000/- and the remaining amount was charged towards cost of proportionate amount of transformer, including maintenance. He also stated that the cost involved in registry came to be between Rs.50,000/- to 55000/, that the possession of the shop was given to the deceased in 2003-2004 and further on being asked, the deceased had apprised him that he was short of funds and he would get the registry done at an early date and thereafter, the deceased did not discuss about registry. He also stated that at the time of closing in March 2005, he again asked the deceased to get registry done upon which he stated that he was strapped for money as he had lent Rs.4 lacs in cash to the appellant Ajai Mishra and articles of hardware costing Rs.1 lacs and further that his house was under construction. He also conveyed that whenever he demanded his money back, the appellants evaded repaying the amount and that he was exerting constant pressure upon the appellants with the avowed object of taking back money from them without undue hassles. He denied knowledge as to when Archana Tulsiyani came to know about lending of money to the appellants but he discussed it with her after 4-5 days of the occurrence. He stated that he had averred the fact in the para 25 of the affidavit filed opposing the prayer for bail of the appellant that prime motive for committing the murder was lending of Rs.5 lac which the appellants were not inclined to repay as the witness had stated in his statement recorded under Section 161 Cr.P.C. The aforesaid affidavit, he further stated, was filed as pairokar of Archana Tulsiyani. He repudiated the suggestion that Archana Tulsiyani came to know of lending money to appellants through the statement made by Anil Tulsiyani recorded under Section 161 Cr.P.C. He admitted that he did not mention the fact of giving on credit the hardware articles to the tune of Rs.1 lac to the appellants in para 25 of the affidavit sworn by him. He expressed ignorance about the fact whether he had mentioned the factum of giving on credit the articles of hardwares to the appellants to the tune of Rs.1lac in any of the affidavits filed by him. He also stated that after about 4 or 5 days of the death of Deepak Tulsiyani, he had told Archana Tulsiyani about lending of money to the appellants by the deceased upon which she conveyed to him that she knew about it and that the deceased had told her about it. The witness further stated that the deceased had told him about lending of money when he had visited his office but he did not tell him that the fact of lending money to appellant was not known to anybody else. He, however, could not pinpoint the exact date and time when the deceased discussed the matter with him. The witness further stated that he was the Managing Director of the company. He also stated that Bhumi Pujan ceremony for laying foundation for Tulsiyani Plaza was performed by him in which only close relatives had participated. No minister or High Court Judge was invited to participate in the function. He also stated that he entered into the venture of property dealing with his uncle namely, Kishan Lal, father of deceased Deepak. On 10.9.1996, Kishan Lal was murdered near Allahabad Bank under Peepal Tree in Alopi Bagh within the circle of P.S. Daraganj and the miscreants being unknown persons are still untraceable. He denied the suggestion that he was instrumental in the murder of Kishan Lal. He also denied the suggestion that other relatives of the deceased namely sisters and brother-in-laws of the deceased did not show any keen interest in the case relating to the murder of deceased knowing fully well that the appellants were innocent persons. He admitted that he was nominated in case under Sections 406, 419, 420, 467, 468 and 471 I.P.C. by Kiranveer of Sardar Patel Marg registered pursuant to the order of the court under Section 156 (3) Cr.P.C. but subsequently, the police filed final report. He denied knowledge whether the final report had been accepted by the court or not. He admitted the factum of F.I.R. lodged by A.D.A. in case crime no.274 of 2008. he also admitted the fact that the case at case crime no.311 of 1982 was registered in which he and his uncle Kishan Lal were nominated as accused for committing the murder of one Sarvan Kumar Madan. The aforesaid case culminated in filing of charge sheet. The said case is lying stayed by the order of the High Court. He denied acquaintance with the persons bearing mobile nos. 9335233711, 9335162047, 9335308955 and 9335119291. He denied the suggestion that the deceased was not allotted any shop in Tulsiyani Plaza and further the deceased had not told about lending of money to the appellants. He also denied the suggestion that in order to generate motive, the fact of lending money to the appellant by the deceased was introduced. He also denied the suggestion that he was a litigative person and was deposing falsely in the case.
The next witness is Major (Dr.) Vipul Kumar of S.R.N. Medical College Allahabad. He deposed that on 25.4.2005 at about 1.45 a.m. He had medically examined Deepak and he was brought to hospital by Ajai Mishra appellant. He found following injuries on the person of Deepak.
"(1) A circular penetrating wound on rt temporal region of scalp of approximately 1 cm x 1 cm with slight blackening wound of entry,
(ii) Another approximately circular penetrating wound on mid of scalp of approx 1 cm diameter regard as.wound of exit.
Opinion: Duration fresh injury caused by firearm...."
At the time when he attended on Deepak, he was unconscious and his general condition was very poor. He had suffered injuries from some fire arms. The patient was admitted by him and at the same time information was sent to police. At the time when the patient was brought, the injuries appeared to have been suffered by him within four hours. He also deposed that at the time when he examined the patient, he did not note down that the odour of liquor was emanating from his mouth. He also deposed that if he had been heavily drunk, he would have noted that fact in the record.
During cross examination he laid much emphasis that he cared more for saving life of patient instead of riveting his attention to the fact whether bad odour was emanating from the mouth of the patient. He denied that he examined the patient for the dose of alcohol consumed by the patient. He denied that he noted the fact that blood was oozing from the wound of the patient but it was certainly noted by him that the wound was freshly caused. He explained that if the wound was fresh, the blood must have oozed out of it. The wound he stated, was in the right temporal region and the bullet had its exit from mid off scalp. He also explained that mid off scalp is top of head. He could not give opinion whether it was a case of suicide or otherwise explaining that it could well be interpreted by legal experts. He also stated that he can only tell the entry point and exit point of bullet and nothing more beyond it. He again expressed ignorance whether it was accidental or not.
P.W.3 is Dr. Shiv Prasad Gupta, who conducted autopsy on the body of the deceased. He stated that at the appropriate time, he was serving as eye surgeon. He deposed that he conducted the post mortem on the body of the deceased which commenced on 25.4.2005 at 2.30 p.m.. he gave details of anti mortem injuries noted by him in the post mortem report.
In cross examination, to a query posed to him, whether as a doctor conducting post mortem examination, it fell in his duties to detect alcohol in the body of the deceased, he answered that it was his primary duty to ascertain the cause of death. On a specific question, whether it was not his duties to detect alcohol in the body of the deceased, he answered that since in the requisition, no such guidelines were contained, he did not think it proper to exceed the bounds of the directions contained in the requisition. Again to a query that since requisition did not contain direction to detect alcohol he did not make efforts, he answered that he did not smell frank of alcohol or else he would have noted the same in the report. He explained that frank meant acute smell of alcohol. He also explained that he was acquainted with the smell of liquor. He also explained that he could not discern the smell of different brand of liquor. Again to a query whether he tried any particular way of detecting the smell of liquor, he answered that he did not try any other way explaining further that the odour of liquor is quite discernible from all other smell. He also stated that he was acquainted with some brands of alcohol. He also answers to the query that before the wound is stitched it is swabbed with cotton by applying savlon etc. and at times it is also shaved as an prophylactic to septic. He expressed himself in agreement with the opinion expressed in the Modi Jurisprudence. He, however, stated that he could not tell with certainty the consequences of emanating flame from a pistol fire and with what result on the skin. He could not tell how old were the wounds noted against injury no.3. He also stated that according to one calculation, a wound takes 7 or 8 days in healing. He also stated that the dead body is received in sealed cover and the seal was broken by him before conducting post mortem report. He also stated that the constable who escorts the body can watch the proceeding of post mortem. He also stated that no police personnel touched the body of the deceased without his permission. He also stated that fingerprint expert had taken finger prints before commencement of post mortem. He could not recollect whether at the time of taking finger prints, the fingers had stiffened. He also expressed ignorance whether there was difference between the finger prints before death and after death. He stated that copy of F.I.R. is received with the dead body but denied suggestion that the post mortem is conducted regard being had to the contents of F.I.R. He denied to comment whether contents of F.I.R. mentioned about liquor. He stated that during autopsy, 100 ml liquid was found. He denied that he noticed odour of liquor. He did not preserve the liquid found in the body of the deceased. To query whether he was making the statement on being primed by Government counsel that on opening of stomach of the deceased, he did not detect odour of liquor, he stated that he had conducted about 100 to 150 post mortem and it is difficult for him to remember the precise details of contents of the body. He also gave details about the entry point and exit point of pellet and denied the suggestion that he was concealing the truth in order to prop up the case of the prosecution.
P.W.4 is Rajeev Nayyar. He happens to be the brother-in-law of the deceased. He deposed that he got news about death of the deceased at 7 a.m. On 25.4.2005. He was a witness of inquest report. He deposed that inquest began at 7.30 a.m. which continued upto 9.30 a.m.. The officer conducting inquest read out the contents of inquest report and thereafter he affixed his signatures thereon. He deposed that the Sub Inspector conducting inquest asked for his opinion and he gave his opinion that the death had occurred due to the deceased being hit by bullet.
On being cross examined by the lawyer appearing for Jaya Mishra, he stated that his vocation was business as well as he dabbled in political sphere. He also stated that he did not receive any call from control room during night that the deceased had received bullet injury. Upon a query whether what would be his explanation if his name finds mention in the G.D. of control room mentioning that information about death was given by him, he stated that if it is so, someone informing the police may have mentioned his name.
He denied suggestion that he had given information to police control room about the death of Deepak deceased. He also stated that at that time, he had fixed telephone connection at his residence which was out of order for quite sometime. At that time, his mobile number was 9415217570. He denied that he had gone to Police Station George Town in the intervening night of 24/25th April, 2005. He also stated that he visited the police station on 25.4.2005 at 11.00 a.m. and had lodged the report.
The witness was also cross examined by the lawyer representing appellant Ajai Mishra. He stated that he was not acquainted with the appellants prior to the present occurrence. He also stated that he used to participate in the birth day function of the son of Deepak Tulsiyani. He also stated that both deceased and he had different friend circle and had different family background. At the time of occurrence, the deceased resided in a rented house in Allapur locality and he had joined in the feast hosted by the deceased. He could not tell the house number but he stated that the house of the deceased was in Allapur locality where Archana Tulsiyani still resided. The house in question had a spacious drawing room whose breadth and length may be a little less than the measurement of the court room. At the time of feast hosted by the deceased, he and his family used to sit either in the drawing room or in any of the rooms and at that time, the entire house was open to all guest. He also stated that he knew only one of the friends of deceased namely Mayank and he was not familiar with other friends of the deceased namely Mayank and he was not familiar with other friends of the deceased nor were they introduced to him. He got news of the death of Deepak at 7 a.m. on 25.4.2005. He was not familiar with appellant Ajai Mishra and on the day of occurrence when his name was bandied about, he became acquainted with the name of the appellant. He denied the suggestion that he was speaking lie that the appellant Ajai Mishra was not known to him. He could not recollect as to when he joined the party hosted for celebrating the birth day of the son of the deceased. He also could not recollect whether he had gone to the house of the deceased on 12.4.2005. He also stated that he used to join the celebration of birth day and that Deepak Tulsiyani also used to come quite infrequently in the birth day function. He also stated that he got news of the death of Deepak Tulsiayni from his wife but he did not ascertain as to who conveyed information about death to his wife. He also stated that when he reached mortuary, the wound suffered by the deceased was not shown to him. He could not tell which cloth the deceased wore when his body was placed in mortuary. He also stated that at the time of inquest alongwith him, were Mahesh and Kamal Bahal. He could not tell about other persons present there. He further stated that after inquest he had gone to police station perhaps alongwith Nirmal the younger brother of the deceased. He could not recollect as to how long he stayed at the police station. He also could not recollect whether Nirmal stayed at the police station. He again stated that after having talks with Sub Inspector Incharge he may have left. He could not remember as to what were the points discussed with the police at the police station. By that time, he was aware that it was accidental and the accident had happened at the house of appellant Ajai Mishra.
Next witness is H.C.P. Bhagwan Dass P.W.5. At that time, he was posted at police station George Town. He deposed that he had prepared the chik F.I.R. in his hand writing. He also deposed that the F.I.R. was registered on 25.4.2005 at 2.55 a.m. In cross examination, he stated that he was aware of the G. D. mentioned at the police station. He also stated that he has no knowledge about the G.D. maintained in control room. He further stated that G.D. is consigned after elapse of five years. He also stated that copy of F.I.R. was received by Nirmal Tulsiyani at 10 a.m. on 25.4.2005. He dwelt upon precise details about time when the report was registered. He admitted that page of G.D. number 6 was over written as 7 and thereafter 7 as 8. He denied the suggestion that the report was in fact lodged between 10 and 11 a.m. while the time of lodging F.I.R. was anti-timed as 2.55 a.m. He also denied the suggestion that special report could not be submitted as there was noticeable distance of time between lodging of F.I.R. and the time shown in G.D. of lodging the F.I.R.. He also stated that paper no.18 kha pertains to special report and this report runs into two pages. A part of the writing in special report is of his hand writing and the remaining one is in the handwriting of any other Moharrir. He admitted the fact that in the document marked as Ex.Ka 4, the places marked by white fluid in the report do indicate that the white fluid was applied at places where time of report was mentioned and further that time was altered and the same was overwritten. He denied the suggestion that he was stating so, as paper no.18 Kha was not written in his handwriting as time mentioned therein is 2.30 a.m. He could not tell whether paper no.18 Kha was written during day time or at night. He also stated that alongwith inquest papers, he had sent Photo Lash, Chalan Lash and blank papers and copy of chik which was sent bore paper no.7 Ka/4. He stated in the said report time 2.30 was over written as 2.55 a.m. Likewise, in G.D. No.5 time was changed from 2.30 to 2.55. He denied the suggestion that the F.I.R was lodged after due deliberation. He also stated that on 25.4.2005, wireless set of the police station was in working order and whatever information was received on wireless set, the same was noted down on order pad. He also stated that if any message had been received from control room, the same must have been noted either by him or by his colleague Moharrir on the order pad. The message is read out to station officer and the same is acted upon according to the order of the station officer. He admitted the fact that there was some blank space after completing the entry in G.D..
P.W.6 is Santosh Kumar Tiwari S.I. who was then posted as Sub Inspector Incharge police outpost within the circle of P.S.George Town. He deposed that he conducted inquest proceeding. The inquest proceeding was commenced at 7.20 a.m. He deposed that he examined the injuries on the body of the deceased from all corners and he detected only two injuries. He also deposed that there were old scars on the left hand. He also deposed that according to the opinion of inquest witnesses, the death had occurred due to being hit by bullet he also identified the papers marked as Ex.Ka 6 to Ex.Ka 10.
In cross examination he stated that on getting papers, he proceeded to the hospital for conducting inquest at 7 a.m. and reached there at 7.20 a.m. On Panchanama papers, name of Archana Tulsiyani was mentioned and the time of report was mentioned as 12.30 a.m. He also stated that on paper no.7 Ka/4, time mentioned as 2.30 a.m was crossed and in its place time 2.55 a.m. was mentioned. He also deposed that in the entire matter, his role was to conduct inquest and nothing else.
The next witness is P.W.7 Archana Tulsiyani widow of deceased Deepak Tulsiyani. She deposed that Jaya Mishra was her childhood friend. Both she and Deepak Tulsiyani were regular visitors to Mayo Hall Sports Complex and with the passage of time their relations ripened into marriage in the year 1994. After her marriage, Jaya Mishra also tied nuptial knots with Ajai Mishra appellant. She deposed that after her marriage, she introduced her husband to Jaya Mishra appellant. She also deposed that both she and Jaya Mishra used to visit each other's place. She also deposed that the deceased was fond of drinking in the company of Jaya Mishra and Ajai Mishra. She denied to have grasped anything uttered by the deceased in drunken state. It is also deposed that she saw Jaya Mishra grasping hand of Deepak and she was also seen kissing Deepak at times. She also deposed that she resented this conduct of Jaya but took it in her ride and did not doubt Jaya's fidelity. Subsequently, she grew suspicious of her conduct. She also deposed that both the appellants were meddling too much in the affairs of her family. She also deposed that on 2.4.2005 she had gone to Delhi alongwith her children and from where they rang up her husband also to Jaya and it transpired that she was present at the house of her husband on the pretext that she had brought dinner for her husband. On 6.4.2005, it is further deposed, she came back from Delhi and after her return both she and deceased had gone to the house of Ajai Mishra where both her husband, Ajai Mishra and Jaya Mishra drank. After a drinking binge, Deepak went inside the bed room and lay beside Ajai and Jaya Mishra on the same bed. When she saw them, she took her husband forcibly from there. By that time, the clock had struck 4-5 and thereafter, both she and her husband left for their house. She also deposed that the birth day of her son fell on 12th April and on 12.4.2005, both the appellants had joined the birth day party and in the said party, they went on a drinking binge and after drinking, she saw Jaya Mishra kissing Deepak. She also deposed that the birthday of her husband fell on 17th April, 2005 which they celebrated at 12 in the intervening night of 16th and 17th April, 2005. In the said function, the appellants were not invited but they arrived at 12 in the midnight and they came unbidden. She also deposed that she resented this and on this count, there was exchange of hot words with Jaya Mishra and she bade them leave immediately. This was resented by the appellant and they had threatened that they would not excuse her for being discourteous to them. After this incident, she deposed, she prevailed upon her husband not to keep any contact with the appellants and agreeing to her advice, he had also assured that he would have no contact with them. She also deposed that they had jointly lent Rs.5 lac to the appellant and when Deepak demanded back the money, the appellants prevaricated on the issue. On 24th April, 2005, Deepak asked her to accompany him to the house of the appellants on the pretext that both would demand back the money but she declined to accompany him. On her refusal, Deepak left for the house of the appellant all alone at about 9 or 10 p.m. in Santro car. She also deposed that Deepak had assured her to be back within 10 to 15 minutes. When he became late, she rang up at 11 p.m. upon which he informed her that the appellants were insisting for drink and that he would be back within five minutes. She also deposed that after about an hour, Ajai Mishra appellant rang up her asking her to rush immediately as something bad has happened. She also deposed that she rushed to the house of the appellant on the cycle of her daughter where the house was locked. When she rang up Ajai Mishra, he asked her to rush to Ojha Nursing Home. When she reached there she saw Deepak lying on stretcher and blood was oozing out from his head. When she enquired about the incident, the appellants informed that Deepak had sustained gun shot injury. From there, she also deposed, the appellant took Deepak initially to Preeti Hospital and from there he was taken to Raj Nursing Home. From Raj Nursing Home, Deepak was shifted to Medical College where Deepak succumbed to his injuries. After the death of Deepak, both the appellants were nowhere to be seen. She also deposed that Deepak had been murdered to avoid repaying the money and also that she had a quarrel with the appellants as stated supra.
In cross examination, she stated that at the time of death of her husband she was standing outside the room where her husband was being treated. She also stated that when she heard of death of her husband, she went inside. She could not remember as to who were with her in the hospital. She also stated that she rang up her relatives before the death of Deepak and that she had gone to police station at about 2.00 a.m. and thereafter she never visited the police station. On being questioned, she stated that from the hospital, she had gone to police station and thereafter, she again came back to Hospital and that she had gone to her house in the wee hours. She also stated that for cremation, the body was brought to her house situated at Alopibagh and that the police had come after two days of occurrence upon which it was conveyed to the police personnel that she being distraught was not in a position to say anything. She also stated that after the incident, she shifted to the house situated in Alopi Bagh and thereafter she shifted to her rented house at Allapur and now she had shifted to her house situated at Civil Lines. She also gave details about her sisters. She also stated that Rupa sister of Ajai Mishra was known to her. When a 14 years old photograph was shown to her she recognized herself and Jaya Mishra. She also recognized Rupa. She could not recognize the other persons in photographs. She also deposed that Jaya used to go to the house of Ajai Mishra for studies prior to her marriage and at times, she also accompanied Jaya Mishra in order to study together in the company of Rupa sister of Ajai Mishra. She also used to accompany Jaya whenever she happened to go to her friends. She also deposed that she had no intimate relation with Ajai Mishra and therefore, she did not go to deliver invitation card to his house. She also deposed that her father was employed in Dhanbad and earlier, the entire family lived at Dhanbad. She also stated that her father left employment at Dhanbad 20 years back and that after abandoning service at Dhanbad, her father came back to Allahabad and here he started his venture. After one or two years,her father left for Dehradun. She also stated that at the time of incident, she had reliance mobile but she could not recollect its number. On being asked whether Ajai had mobile number 9415216334, she denied knowledge stating that their mobile numbers were saved in her mobile. She gave out mobile number of her husband. She also stated that she had a land line connection. She could not say whether mobile numbers of appellants were saved in the mobile of the deceased. She also stated that she had gone to Delhi on 3rd April, 2005 and came back on 6.4.2005. In Delhi, she resided with her sister who was married to Jamshed Khan. She had also gone to the house of her sister-in-law. She also stated that name of the husband of her sister-in-law is Pramod Mishra, who was serving in Delhi as A.C.P.. She also stated that her marriage was inter caste marriage and her earlier name was Archana Singh. She was by caste Thakur. She also stated that she had done graduation. She also stated that she had gone to Delhi along with her two children and maid servant. She denied that she had gone to Delhi by Prayag Raj Express on 29.3.2005. On being confronted with reservation chart and reservation form which showed the date of journey as 29.3.2005, she stated that she could not recollect the correct date of journey. Again on being confronted whether Vatsalya her sister also performed journey with her. She stated that her sister Vatsalya had not come with her and the berth no.60 showing to be reserved in the name of Vatsalya must be in the name of person known as Vatsalya, who was different from her sister. On being again called for cross examination, she stated that she had mentioned in the written report whatever had occurred with her. On being called whether she could write the report again in court she stated that she could write the report again but not in the same words. She reiterated that she had mentioned in her report that initially she had gone to Ojha Nursing Home, then to Preeti Nursing Home and then to Raj Nursing Home. She also stated that she was not in a fit state of mind on account of shock and on account of this state of mind she may not have mentioned about lending of five lacs rupees to the appellants but she recollected that she certainly mentioned that her husband was killed for money. On being confronted with the contents of F.I.R. she explained that on account of sudden occurrence of the incident, she forgot to mention the fact of lending of money. She stated that when her husband left the house, he had told her that the appellants had talked to him about return of money. She also stated that in a confused state of mind, it did not strike her to mention that the deceased was murdered for money. She also stated that she had mentioned the fact of lending of Rs.5 lacs to appellant but it is difficult for her to explain the reason, why this fact was not mentioned in her statement by the Investigating Officer. She also stated that when the Investigating Officer was recording her statement, she had used foul words for appellants but those words were not taken down by the Investigating Officer. She also stated that she was not aware who was pursuing the case in the High Court and Supreme Court but it was known to her that Anil Tulsiyani had talked her about doing pairvi to oppose the prayer for bail of the appellants. She also stated that she had mentioned the fact of lending of money to appellants to Anil Tulsiyani and also other family members. She also stated that the fact about lending of money was disclosed to the family after the incident. She also stated that she had lent Rs.5 lac to Jaya Mishra in installments. She also stated that she had started lending money about 1,1/2 years prior to the incident i.e. from the year 2004. The fact about lending of money was not noted down by her anywhere. She also could not precise the dates when the money was delivered to the appellants. She also stated that the entire account was maintained by her. She also mentioned the fact that besides lending money in cash to the extent of Rs.4 lacs, hardware articles costing Rs.1 lac was also given to the appellants on credit. She also stated that whatever talks took place between her and Deepak Tulsiyani and Ajai Mishra were mentioned in para 14 of the affidavit paper no.93 kha. She also mentioned about the time when she talked to her husband on phone on the day of occurrence. On being called again for cross examination, she began with the statement that whatever statement was given by Vatsalya Singh and Anil Tulsiyani was not read over by her. She also stated that on the day of occurrence she and her husband had gone to see Film "Mumbai Express" in the show between 6 p.m. to 9 p.m. in the Chandralok Talkies. Since film was not to their liking and also that the children had started crying, they left the show half way. She denied the suggestion that she and her husband had gone to see the film in the show between 9 p.m. to 12 p.m. She also stated that they came back to their house at 8 p.m. She also denied the suggestion that on the day of occurrence her husband had asked her at about 4 p.m. to be ready for visit to the house of Ajai Mishra. She denied to have stated in her statement recorded by the Investigating Officer that her husband had asked her at 4 pm. to be ready to visit the house of Ajai Mishra. On being reminded, she stated that she could not recollect whether she had given the statement to the aforesaid effect. She also denied that her husband had asked her to accompany him to the house of appellant at 10 p.m. She also stated that her husband suddenly told her that he had received a call from appellant Ajai Mishra at 10 p.m. asking him to come to his house to collect the money and he left asking her that he would be back within 10 minutes. She also denied the suggestion that her husband had asked her to come over to the house of appellant where they would dine with Ajai and Jaya Mishra. She also denied the suggestion that her husband carried any bag containing cigarette, wine bottle or tumbler. She conceded the fact that her husband was fond of meat and he enjoyed chicken and mutton. She denied that he was also fond of pork. She stated that she could not tell when her husband had reached the house of the appellant. She also gave precise time when her husband made call to appellants at their line from his mobile. She also gave details of her talks with her husband and vice versa. She also stated that Ajai Mishra made call to her at 12.36 a.m. informing that her husband had been hurt by bullet further information that something has happened and no further details. She could not recollect whether she had mentioned 12.30 as the time when appellant had made call to her informing about the deceased being hit by bullet. She then stated that she was told on phone by appellant Ajai Mishra that she should rush to Ojha Nursing Home and something bad has happened. She denied that she was told that Deepak had been hit by a bullet. She also stated that on reaching Preeti Hospital, she enquired and was told that Deepak had been hit by the bullet. On further enquiry she was told that Deepak had shot himself by his revolver. On being confronted with the contents of the F.I.R. in which she had mentioned that she was told on phone by appellant that Deepak had been hit by bullet, she expressed ignorance stating that it might be the fault of the scribe of the F.I.R. She also stated that Investigating Officer has not correctly recorded her statement in which she is shown to have stated that on her enquiry, appellant told her that Deepak had shot himself by his pistol. On being confronted that the person who had informed the police at 1.55 p.m. had stated that his brother-in-law had been hit by bullet fired by unknown persons, she stated Rajeev Nayyar was brother-in-law of her husband and that aforesaid Rajeev Nayyar was present when her husband had been admitted in hospital. She also stated that all her relatives including Rajeev Nayyar were present in hospital. She also stated that Anil Tulsiyani was not present. She also told that she had made a call at the house of Anil Tulsiyani but he did not turn up. She denied that she had seen Anil Tulsiyani present with her husband during the course of period, her husband remained admitted in the hospital. She stated that her father-in-law had been murdered but she denied any knowledge about the person who committed the murder and also whether any person had been nominated as accused and further whether any final report has been filed in the said case. She also stated that when Deepak left the house, he had pistol with himself. She denied the suggestion that in a fit of anger, Deepak had fired which burnt a hole in the hind screen of the car. She explained that the hole was made due to car being hit by a pebble which was thrown by some mischievous children of the locality. She stated that on 6.4.2005, she had gone to the house of the appellants alongwith some gifts meant for the son of the appellants. On 12.4.2005, it is stated, appellants had attended the birth day ceremony of her son Deepu, Anil Tulsiyani had not attended the function. All other relatives including Raju Nayyar, Nirmal Tulsiyani etc. were present in the function. She also stated that seed of discord was sown on that very day as appellants had taken her husband to another room where they indulged in bout of drinking. She objected to it upon which verbal dual ensued between her and the appellants. She also stated that the news of discord between her and appellants had not trickled to any of the guests present in the function. She also stated that since it was birthday of her son, there was no prior arrangement for drinking but despite the fact it was the birth day of son, Deepak and appellants shifted to another room and indulged in drinking bout which she disliked much. She could not explain whether she had made any call from her mobile. However, she explained that her mobile number was also used by her husband. On being confronted with mobile number of Dr. Kartikey Sharma and Dr. S.P.S. Chauhan and Dr. D.R.Singh, she stated that she knew Dr. S.P.S.Chauhan and Dr. D.R.Singh as they had attended on her husband in hospital. She also stated that after the incident of 12.4.2005, she had developed aversion towards appellants and she had also conveyed to the appellants not to visit her house. She also stated that even thereafter, she had made call on few occasions to the appellant and their calls were also received by her on very few occasions. In regard to the event of 16/17th April, 2005, she stated that she had a quarrel with the appellants which continued for half an hour and after half an hour, the appellants left for their house. She also provided details of phone call on the basis of record. On being again called for cross examination on 2.4.2007, she stated that she had made call to her parents on 16.4.2005 at 8 p.m. in order to intimate her parents that she had bidden out Ajai Mishra and Jaya Mishra from her house. She denied that her husband had slit his wrist being pained by her conduct. She explained that her husband tripped over the iron Sariyas kept in the house and got injured in his left hand wrist. She denied that she also suffered injury on her face on account of quarrel between her and her husband. She also denied that both she and her husband were not on talking terms for the last several days or that on account bickering between the husband and wife, the children had been removed to her parental house. She also denied that she had gone to Delhi for 7 days and instead emphasized that she had gone on 2nd April, 2005 and had come back on 6th April, 2005. She also denied that she had left for Delhi on 29.3.2005. She also denied that during her stay at Delhi, she had once gone to the house of her brother-in-law (husband of sister-in-law) and she had stayed elsewhere which had generated doubt about her fidelity in the mind of her husband. She also stated that her husband was not doubting tom and that her husband always drank moderately. She denied that her husband after drink used to get nervous tic. She also stated that she got insurance amount to the extent of Rs.10 lac from insurance company after the death of her husband. She also stated that complete insurance amount has not yet been paid off to her. She could not explain any reason for the delay in the matter. She expressed ignorance whether her husband had got himself insured which fact she came to know after 2-4 months of the death of her husband. She denied that her husband committed suicide on being provoked by her. She also denied the suggestion that she set up the theory of murder in order to get claim of insured amount and in this bid, she had falsely nominated the appellants as accused.
The next witness who is arrayed as P.W.8 is S.S.I. D.D. Shukla. At the relevant time, he was posted as Incharge George Town Police Station. He deposed that the case was registered in his presence and immediately thereafter, he had commenced investigation of the case. He also recorded statements of accused persons and also inspected the site and prepared the site plan. He also deposed that the site of incident was also inspected by the field unit headed by S.I.Vimal Chandra Mishra which collected finger prints from pistol bottle, glass and also collected finger prints of the appellants. He also deposed that the field unit also visited mortuary to collect finger prints of the deceased. He also deposed that the appellants were called to police station where they were interrogated and thereafter were let off with a warning not to leave the station. On 26.4.2005, he studied the post mortem report and thereafter recorded statement of Dr. S. P. Gupta who conducted autopsy on the body of the deceased. He also tried to collect Bed Head Ticket and other papers from medical collage but on account of non availability of concerned Doctor, bed head ticket could not be collected. He also deposed that he also studied the medico-legal register of the hospital but he did not find any mention of alcohol having been consumed by the deceased. He also instructed the informer to get at truth. On 27.4.2005, he got information on R.T. Set that team of ballistic expert has left from Lucknow for Allahabad and he should arrange to receive the team and take them to the site of occurrence. He also deposed that when he inspected the site he had locked the room with instructions to the appellants not to touch anything connected with the crime. The ballistic team was taken to the place of occurrence where they inspected the site. At some places, the chemical was used to detect the blood and the blood was detected at the stair case which it was found had been wiped out upon which Ajai Mishra was confronted who disclosed that the maid servant had wiped out the blood stains on being asked by him. On the same day, he deposed, he took into his possession the articles including blood stained piece of cloths, cloths used for wiping floor, blood stained cloth of the deceased and he also scraped part of the wall where the bullet had ricocheted. He also took into possession one pistol along with magazine, one empty cartridge, and four live cartridges and the same were preserved in sealed cover.
It is a case hinging on circumstantial evidence and there is no direct evidence linking the accused with the crime. It is worthy of notice here that time and occurrence is not called in question as concededly, the place of occurrence is the house of the appellants. According to the prosecution case, the deceased was shot inside the house of the appellants while the case of the defence is that deceased had self immolated himself in the house of the appellants. The Sessions Judge after scrutinizing and evaluating the evidence, arrived at a conclusion that the appellants were imbued with motive for committing the crime and that the burden was on the accused persons to explain the circumstances under which deceased had sustained injuries. The defence version was jettisoned by the Sessions Judge.
Before embarking upon analyzing the evidence of the prosecution and defence, we feel called to indicate ourselves to the basic principles of circumstantial evidence. The decision on the point is Sahni Bai Vs. State of M.P. (2010) 2 SCC 646.
"11. It has been consistently laid down by this Court, that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances (See State of U.P v Satish reported in 2005 SCC (Crl) 462).
12. In Joseph v State of Kerala a reported in 2000 SCC (Crl) 926, the Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that:
"It is often said that though witnesses may lie, circumstances will not, but at the same time, it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain, unerringly pointing to the guilt of the accused."
13. This Court in Padala Veera Reddy v State of A.P 1991 SCC (Crl) 407 has observed that when a case rests on circumstantial evidence, the following tests must be satisfied:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
14. In C. Chenga Reddy v State of A.P 1996 SCC (Crl.) 1205 this Court has held that:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
15. In State of U.P v Ashok Kumar Srivastava, 1992 SCC (Crl) 241, it was pointed out that:
"9.......Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."
"9....The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of {the guilt}."
16. The principle that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court."
A criminal case is a proceeding "within the meaning of 102 Cr.P.C." and the burden of prove in such a proceeding lies on the prosecution. The elementary principles of criminal law that in all cases, the burden of proof lies upon the prosecution to bring the guilt home to the accused, does not admit of any exception.
The Apex Court in the case of Trimukh Marothi Kirkan V. State of Maharastra reported in (2007) 1 SCC Crl. 80, has held that if an offence takes place inside the privacy of a house and in such circumstance where the assailant has all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon by the courts. It was further held that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. It was further observed that it is necessary to keep in mind the ingredients of section 106 of the Evidence Act which enjoins that when any fact is special within the knowledge of any person, the burden of proving that fact is upon him. The Apex Court had further observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence but the burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give an cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
In the instant case, the prosecution has let in evidence to prove that appellants was imbued with motive to commit the murder of the deceased. According to the prosecution evidence, appellants had borrowed Rs. 4 lacs from the deceased followed by articles of hardware costing Rs. 1 lac. On this count, P.W. 1 Anil Tulsyani deposed that deceased had told him that appellants had borrowed Rs. 4 lacs and hardware articles costing Rs. 1 lac but the appellants were averse to refund the money to the deceased. P.W. 1 further deposed that Deepak Tulsyani (deceased) upon being insisted as to why he was not taking any legal action, he had verbalized his apprehension that they could try to eliminate him and on account being connected with legal profession, he welshed upon his promise to repay the amount and he had also told him that he was employing persuasive measure to get back the money from the appellant. P.W.7 Archana Tulsyani also deposed that Rs. 4 lacs were given to the appellants besides hardware articles costing Rs. 1 lac on credit. She further deposed that her husband on the date of occurrence suddenly told her that he has received a call from Ajay Mishra asking him to come to his house to collect the money and he left asking her that he would be back within 10 minutes. The second motive attributed to the appellants for committing the crime is that there was proximity of deceased with appellant Jaya Mishra. She deposed that she and Jaya Mishra were childhood friend. After their marriage, she and Jaya Mishra used to visit each other house. The deceased was fond of drinking in the company of appellants. She saw Jaya Mishra grasping hands of the deceased and was also seen kissing him at times. She resented this conduct of Jaya Mishra but took it in her stride and did not doubt Jaya's fidelity. Subsequently, she grew suspicious of her conduct. She deposed that on 2.4.2005, she had gone to Delhi alongwith her children and from where they rang up her husband and also to Jaya and it transpired that she was present at the house of her husband on the pretext that she had brought dinner for her husband. After her return from Delhi, she alongwith her husband had gone to the house of appellants. After drinking session, deceased went inside the bedroom and lay beside Ajay Misra and Jaya Mishra on the bed. When she saw them, she took her husband forcibly from there. On 12.4.2005, both the appellants had attended the birthday party of her son and after drinking, she saw Jaya Mishra kissing Deepak. On 17.4.2005 in the birthday party of her husband, appellants were not invited but they arrived at 12 in the night. She resented this and there was exchange of hot words with Jaya Mishra. This was resented by the appellants and they had threatened them that they would not excuse her for showing this discourtesy. The Sessions Judge accepted the testimony of the witnesses and held that appellants had motive for commission of the crime.
The Counsel for the appellants had assailed the testimony of the witnesses relating to motive and submitted that the F.I.R. is absolutely silent on this aspect and that there was no iota of whisper that there was any motive attributable to the appellants for commission of the crime. As stated supra, as regards the motive of the crime, it is alleged that appellants had taken loan of Rs. 4 lacs and hardware articles of Rs. 1 lac and they were not returning the same and on that account, the appellants had motive to commit the murder of the deceased. P.W. 1 Anil Tulsyani stated that in the month of March, 2005 he had asked the deceased to get registry done of the shop which he had purchased from him upon which deceased stated that he was strapped for money as he had lent Rs. 4 lacs in cash to the appellant Ajay Mishra and also hardware articles costing Rs. 1 lac. The Sessions Judge has nodded in acceptance the testimony of P.W.1.
We have carefully scrutinized the testimony as regards motive of the crime and it leaves no manner of doubt that his testimony is in the realm of hear say evidence. Thus the question that arises is whether this evidence can be admitted under section 32 of the Evidence Act or not? Section 32 of the Evidence Act envisages as under:
"The statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death."
It is settled principle that statement of the deceased is admissible only to the extent of proving the cause or circumstance of the transaction which resulted in the death of the deceased. The statement should have close nexus with the actual transaction.
In the case of Sudhakar Vs. State of Maharastra reported in (2000) 6 SCC 671 the Apex Court has held as under "As distinguished from the English Law Section 32 does not require that such a statement should have been made in expectation of death. Statement of the victim who is dead is admissible in so far as it refers to cause of his death or as to any circumstances of the transaction which resulted in his death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relation to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction.........." (Emphasis supplied) For the first time in the court, she deposed about the motive of the crime. In her statement under section 161 Cr.P C, P.W.7 Archana Tulsyani did not mention about loan of Rs. 4 lacs and hardware articles costing Rs. 1 lac given by the deceased to the appellants. There is no documentary evidence to bolster up the testimony of the witnesses that any loan was taken by the appellants from her husband/deceased. This witness also deposed that on the date of incident, appellants had called the deceased but there is nothing on record to prove that the appellants had made call to the deceased asking him to come over to their house. To cap it all, no call details have been proved to show that the appellants had called the deceased to their house. On the contrary P.W. 7 has admitted that deceased had made three telephone calls on the land-line no. 2467059 of Ajay Mishra and Jaya Mishra at 22-11, 22-12 and 22-14 from his mobile no. 9415239709. Another motive alleged for the crime as mentioned by PW 7 is proximity of Jaya Mishra with deceased and in an incident dated 17th April, when appellants came unbidden to the house of appellants at 12 midnight, hot words were exchanged between her and the appellants and as a sequel, the appellants had extended threats. The evidence further is to the effect that after this incident, she prevailed upon her husband not to keep any contact with the appellants.
It may be recalled here that on the contrary, the defence of the appellant is that relations between deceased and PW 7 were frayed due to proximity of deceased with appellant and Jaya Misra and also on account of her (PW 7) visit to Delhi. According to the statement of appellants recorded under section 313 Cr.P.C deceased was always grousing against his wife PW 7.
We have given our most anxious considerations to the above testimony in order to adjudge whether it would a proximate motive for the appellants to have propelled them to commit the murder of the deceased. In connection with this, it is worthy of mention that the call details admitted by the PW 7 are clear manifestation of the fact that on the date of incidents, various calls were made by the deceased to the appellants on phone. Be that as it may, the significance or relevance of motive would primarily hinge upon the facts and circumstances of the case. In cases which are entirely or mainly based or rest upon circumstantial evidence, the motive can have greater relevance or significance, but it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of such importance. Mere absence of motive even if assumed will not entitle the accused to acquittal, if otherwise the commission of the crime is proved by cogent and reliable evidence.
In the case of Dharni Dhar Vs. State of U.P. 2010 (7) SCC 759, the Apex Court has held that "It is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be reliable to the facts and circumstances of a given case. It will not be correct to say as an absolute preposition of law that the existence of prompt or definite motive is a sin-qua-non to holding an accused guilty of a criminal offence. It is not correct to say that the absence of motive essentially results in the acquittal of an accused if he is otherwise found guilty of the crime.
Now we will examine whether defence has discharged the burden as to the cause of death of the deceased in their house. In the case of Krishan Janardan Bhat v. Dattatrya G. Hegde reported in (2008) 4 SCC 54, the Apex Court has held that an accused for discharging the burden of proof placed upon him by Statute, need not examine himself. He may discharge his burden on the basis of the materials already brought on record and an accused has a constitutional right to maintain silence.(Emphasis supplied).
Section 315 of the Code of Criminal Procedure postulates that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial and sub section (b) postulates that his failure to give evidence shall not be made the subject of any comment by any of the parties on the court or give rise to any presumption against himself or any person charged together with him at the same trial.
Reverting to the evidence on record, the appellant Jaya Mishra in her statement under section 313 Cr.P.C. narrating the incident stated that the relations between the deceased and his wife Archana Tulsiani were strained. On 29.3.2005, she alongwith her sister Vatsala both children Pari and Tipu alongwith maid servant Shanno had gone to Delhi by Prayagraj Express in A.C. III Tier after getting reservation. She had told Deepak that she was going to the house of her sister-in-law but she reached there on 3.4.2005. Deepak was annoyed with his wife she had explained to her husband where she stayed from 30.3.2005 to 2.4.2005 and this had triggered a quarrel and consequently, relations became frayed. On 24.4.2005 at about 4 P.M. Deepak had made a call in which he dwelt upon his strained relations with Archana. Ajay had pacified him advising him to take his wife and children for outing and heeding his advice, on 24.4.2005, the deceased took his wife and children to Cinema Hall Chandralok for watching the ongoing 9 to 12 show. At about 10 p.m, it is further stated, both deceased and his wife left the Hall and Archana returned to her rented house situated in Allapur while Deepak came to her house on his Santro car. At that time, it is stated, their house was locked from inside and Ajay had gone to bed struggling to sleep while she was preparing to go to sleep. It is further stated that Deepak had made a call on land-line at about 10.11 p.m. It is further stated that since her father-in-law Dr. Ram Sajeevan had undergone operation for prostate cancer and he used to call occasionally, she picked up the phone believing it to be of her father-in-law. She also stated that she was fed up with the strained relations between husband and wife and hence, she disconnected the phone. Again at 10.12 p.m. Deepak phoned and this time, Ajay attended the call and asked him to come next day. Again at 10.14, Deepak made a call and pleaded to open the gate upon which Ajay opened the gate. She also stated that her living room was used as drawing room in the day time and as a bed room in the night, Deepak entered the room and sat in front of the A.C. and started drinking from the bottle which he carried alongwith him at the same time muttering grouses against his wife. She also stated that she and her husband advised him to go back to his house. In the meantime, a call was received by Deepak upon his mobile in which he was heard having hot talks with his wife Archana..The last telephone of Archana was received by Deepak on his mobile and they could not know what talks took place between them but Deepak seemed infuriated and he abused Archana and thereafter, shot himself. They got frightened. Ajay informed Archana to come immediately Deepak had shot himself and he committed suicide. From the statement under section 313 Cr.P.C. it is also clear that immediately after the occurrence they took Deepak to Ojha Nursing Home, which is the closest Nursing home from their house. Archana also arrived there and on her request, they took him to Preeti Hospital because Dr. Kartikay Sharma attends on patients there. They talked to Dr. Katrikay Sharma on telephone and he refused to come on the ground that after his abduction, he does not go out during night. She also contacted Dr. Chauhan. The mother, uncle and sister of Archana also arrived in Preeti Hospital. When Dr. Kartikay Sharma refused to come Archana told them that Dr. D.R. Singh is professor in Swaroop Rani Medical College and was of her acquaintance and that he also resided in the compound of Raj Nursing Home. Raj Nursing Home was at a short distance away from Preeti Hospital and they took Deepak on a stretcher with the help of ward boy. Archana was also accompanying them. In Raj Nursing Home, hair around the injury were cut, wound was cleaned and stitched. In the ambulance of Raj Nursing Home, he was taken to S.N. Medical College and Dr. D.R. Singh also accompanied them. One bottle of blood was given by Nirmal, brother of Deepak and one bottle of blood by Brijesh Kumar Srivastava, who is arrayed as DW 8, a friend of accused Ajay.
The statement of Ajay Mishra is similar to that of his wife Jaya Mishra and hence we do not think to reiterate the same all over again.
The defence examined D.W. 1 Rajendra Singh, who is Chief Ticket Inspector, Allahabad Railway Station and he has proved the reservation chart Ext. Kha 1 to Kha-4. D.W. 2 R. K. Bhargava is a constable of control room. He has proved the information given by Rajeev Naiyer on 25.5.2005 at 1.35 about injury sustained by Deepak Tulsiani by some unknown persons. D.W. 3 Brahmanand Srivastava is regional engineer, B.S.N.L. Mobile Service, Allahabad. D.W. 4 Kaushik Ghosal is a Nodal Officer of Voda-phone S.R. Company. He has proved call details of Mobile No. 9839087997 from 1.3.2005 to 26.4.2005 giving details of outgoing and incoming calls and its timings. He has proved paper No. 100 Kha 32 and 100 Kha-48. D.W. 5 Prem Shanker Maurya, is a Lab Technician of S.N. Medical College. He deposed that on 25.4.2005 Brijesh Srivastava had donated blood of blood group B positive. He has proved the blood donation certificate of Brijesh Kumar, Ext. Kah-10. D.W. 6 Rajeev Singh, he has proved paper No. 171 Kha which he has received from G.M. (Admn) Lucknow. D.W. 7 Surendra Kumar Srivastava, deposed that call details are kept only for one year thereafter details are destroyed. D.W.8 Brijesh Kumar Srivastava deposed that on 25.4.2005 at about 1.35, he had received a call of Ajay on his land line No. 2460282 and on his request he had gone to donate the blood. He was informed that Deepak Tulsiyani shot himself from pistol.
Before we proceed further, we would like to advert to a decisioon of Apex Court in Ajay Singh Vs. State of Maharashtra (2007) 12 SCC 341, in which the Apex Court has held that the object of examination under section 313 Cr.P.C. is to give the accused an opportunity to explain the case made out against him. This statement can be taken into consideration in judging his innocence or guilt where there is an onus on the accused to discharge. It depends upon the circumstances of the case if such statement discharges the onus. (Emphasis supplied). In the case of Manusao Vs. State of Bihar reported in 2010 (12) SCC 310, the Apex Court has considered the essential feature of section 313 Cr.P.C. and the principles of law as enunciated by the Apex Court which are the guiding factors for proper application and consequence which shall flow from the provisions of section 313 of the Code. The Apex Court has held that the object of recording the statement of the accused under section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time also to permit him to put forward his own version and reasons if he so chooses. In relation to his involvement or otherwise in the crime, the court has been empowered to examine the accused but only after the prosecution evidence has been concluded. The essence is that it is a mandatory obligation upon the court and beside ensuring the compliance therewith, the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative, to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or without impinging upon the right of the other party to cross examination him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused very important incriminating peace of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is; to what extent and consequence, such statement cannot be used during enquiry and the trial. Over a period of time, the courts have explained this aspect and now it has attained more or less certainty in the field of criminal jurisprudence. It was further observed that the statement of the accused can be used to test the veracity of the exculpatory nature of admission if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly an evidence in the case. The provisions of section 313 (4) explicitly provides that the answer given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which the answers made, tend to show he has committed the crime. In other words, the section is permissible as per the provisions of the Code but has its own limitation. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statement made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important question that courts have declared in the pronouncement is that conviction of the accused can not be based merely on the statement made under section 313 of the Code as it cannot be recorded as substantive peace of evidence.
In the case of Ajay Singh Vs. State of Maharashtra (supra), the Apex Court has reckoned with the decision rendered in the case of Hate Singh Bhagat Singh Vs. State of M.P. reported in AIR 1953 SC 468, wherein it has been laid down that "the statement of the accused persons recorded under section 313 of the Code are among the most important matters to be considered at the trial". It was pointed out that "the statement of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take place in England and in America he would be free to state in his own way in the witness Box(and that they) have to be received in evidence and treated as evidence and by duly considered in the trial. This position remains unaltered even after the insertion of section 315 in the Code and any statement under section 313 has to be considered in the same way as if section 315 is not there."(emphasis supplied).
The explanation of the accused that deceased was annoyed with his wife and this is the reason attributed by the appellants to the deceased propelling to commit the suicide. The appellants' counsel referred to the testimony of P.W. 7 Archana Tulsyani about the prior events providing stimulus to the deceased to take the extreme step. It was pointed out that Deepak Tulsyani had asked her to accompany him to the house of Ajay Mishra but she refused when he had told her about returning of some money. After her refusal to accompany Deepak went there. He had gone there between 9-10 p.m. in his Santro Car. He had told her to return within 10-15 minutes and when he did not return, she made a call to Deepak around 11 p.m. and he told her that Ajay Mishra and Jaya Mishra had offered drinks and he told her that he would be back within five minutes. Initially she did not mention her conversion with her husband. Her husband had phoned on land line 2467059 of Ajay Mishra and Jaya Mishra at 16-28, 16-49, 22-11, 22-12 and 22-14 from his mobile no. 9415239709. On the same night at 23.-39, she had telephoned from her mobile number to Deepak Tulsyani on his mobile number. Again on the same night at 23.55, she had dialed mobile phone to Deepak from her landline no. 2507226. Thereafter at 23.56, Deepak Tulsyani had contacted her on her land-line number at 23.56. Again she had contacted mobile number of Deepak Tulsyani at 12.36. She again admitted that at 12-36-49 Ajay Mishra had telephoned on 25.4.2005 and informed about the incident. From the statement of P.W. 7, Archana Tulsyani, it is abundantly clear that deceased had committed suicide immediately after talking with Archana Tulsyani. The testimony of P.W. 7 is absolutely silent about the nature of conversation between her and her husband. It is also relevant to mention that these facts were not disclosed initially. Earlier when she was cross examined, she showed ignorance about all the mobile including of her own. She was confronted with an affidavit in which telephone number were referred in paragraph 30, and it is as a sequel to it that she admitted.
Again we revert to examine the statement of P.W. 7 Archana Tulsyani. It has been mentioned that deceased had consumed alcohol and he was constantly talking with his wife. The prosecution has challenged the statement of the accused on the ground that in the medical examination report, no alcohol was detected by the doctors. We do not find any substance in this submission because deceased had himself informed P.W. 7 Archana Tulsyani that he had been offered liquor by the appellants and he would be back within five minutes. The investigating officer had also collected finger prints from the wine bottle and glass with wine inside.
In connection with the submission that absence of alcohol was conspicuous in the medical examination, it is relevant to point out that deceased had sustained injury at 12.46 and his medical examination was conducted after about one hour of the incident. P.W. 2 Dr. Major Bipul Kumar stated that he did not mention that smell of alcohol was emanating from the mouth. He further clarified that if the patient was heavily drunk, he would have noted it on the record. In the cross examination, he admitted that his primary object was to save the life of the deceased and he did not pay attention to the fact whether smell of alcohol was emanating from the mouth of the deceased or not? P.W. 3 Dr. Shiv Prasad Gupta, who conducted the post mortem report stated that he did not smell frank alcohol or else he would have noted it in the report. To a query whether he tried a particular way of smelling the alcohol, he answered that he did not try any other way. It is also relevant to mention that according to the testimony of P.W. 2 Dr. Major Bipul Kumar when he had examined the patient his condition was very serious and he had examined the patient after one hour of the incident. In view of the facts mentioned above, it cannot be said that statement of the accused that deceased was taking liquor is false. The deceased himself informed his wife P.W. 7 that he had been offered liquor by the appellants. She also admitted that deceased was fond of taking liquor in the company of the appellants.
Another explanation of the appellants that deceased had committed suicide and pointed out that injury on the person of the deceased is suicidal in nature. From the medical examination report, it is clear that deceased had sustained injury on the right temporal bone from a very close range and he committed suicide by his licensed pistol. In this connection, we would like to cue from medical jurisprudence. In the Reddy's Medical Jurisprudence at page 224, it has been mentioned that a suicide using a revolved or pistol usually shoots himself in the right temporal region, the bullet passes almost horizontally or upward or backward through the head and making its exit in the left parietal region. Another important fact supporting the theory of suicide is the ballistic expert report which shows that ballistic expert had, after examining the medical evidence and the route of the bullet hitting the roof opined that injury of the deceased could be caused in the manner given by the accused persons. The Sessions Judge has wrongly mentioned in the judgment that there was no blackening. The post mortem examination report clearly mentions blackening of skin around wound present.
The next aspect to be considered is the conduct of the appellants/accused. P.W. 7 has admitted that she had contacted deceased at 12.36 and immediately thereafter 12-36-49 Ajay Mishra informed her about the injury sustained by the deceased. It is apparent that within few seconds appellants had informed P.W. 7 Archana Tulsyani and thereafter, deceased was taken to Ojha Nursing Home and she had joined appellants in Ojha Nursing Home and they altogether had taken deceased to Preeti Nursing Home and then to Raj Nursing Home and from there to S.N. Medical College. It is also clear from the testimony of P.W. 7 that in the meantime, Dr. Kartikey Sharma and Dr. Chauhan who are famous doctors of the city were also contacted. The appellants had also arranged blood of B+ Group and he had called his own friend Brijesh Kumar Srivastava DW 8. It is also important to mention that P.W. 7 Archana Tulsyani admitted that up till Medical College both the appellants were through out present during the treatment of the deceased.
The submission of learned Government Advocate that deceased was taken from one Hospital to another Hospital without making arrangement for treatment is without substance in that in their statement under section 313 Cr.P.C, the appellants clearly mentioned that in Raj Nursing Home, wound was cleaned and stitched.
Here it would be appropriate to revert to the statement of the accused. The accused in their statement under section 161 Cr.P.C have stated that in Raj Nursing Home wound of Deepak Tulsiyani was cleaned and stitched but this fact is not propped up by any documentary evidence inasmuch as in the medical examination of the deceased in medical college ( Ex Ka 1) wound of deceased was not found stitched.
We have given our anxious considerations to the submission and perused the entire evidence and from a close scrutiny of the submissions and entire evidence, we converge to the opinion that merely on account of absence of stitches in medical examination report, it cannot be assumed that the accused had deliberately delayed giving immediate medical aid to the deceased. It is also significant to notice here that investigating officer had interrogated Dr Satish Kumar Patel of Ojha Nursing Home and Dr Mukul Singh of Raj Nursing Home but prosecution did not produce them in evidence to show that deliberately no treatment was given to deceased.
From Ojha Nursing Home onwards the appellants were present through out with the deceased and within one hour, deceased was admitted in S.N. Medical College and appellants had also called his friend Brijesh Kumar Srivastava who had donated his blood. If PW 7 Archana Tulsiyani had any doubt that no efforts was made in giving immediate treatment to the deceased, she should have mentioned it and this would have been a very incriminating circumstance against the appellants, but we do not find anything on this count either in the F.I.R. or in the statement recorded under section 161 Cr.P.C or in her evidence that appellants had deliberately delayed giving medical treatment. If the appellants had any morbid plan in their minds, they would have rather waited for the deceased to succumb to injury before informing PW 7 Archana Tulsiyani.
The sessions Judge has held that the accused called in the deceased to their house and made him to consume liquor and committed his murder and took him to Ojha Nursing Home so that no one has any suspicion. In our view, the Sessions Judge ignored the fact that within seconds the appellants had given information to PW 7 and called her to Ojha Nursing Home and thereafter they took him to better hospitals in the mid night and lastly he was admitted in medical college. The appellant arranged for blood also. They also remained present throughout the treatment.
From a scrutiny of evidence on record and also from the statement of the accused under section 313 Cr.PC it would clearly transpire that on 24.4.2005, the deceased had made a call on land-line No 2467059 of the appellants at 16-28, 16-49, 22-111, 22-12 and 22-14 from his Mobile No 9415239709. This would testify to the fact that in the night of 24.4.2004, the deceased had made three calls to the appellants. The call details discussed above, props up the statement of the accused that the deceased had made three calls requesting to open the door of the house. PW 7 Archana Tulsiyani also deposed that she had phoned Deepak Tulsiyani from her land line at 12-36-49. There is no denying that she had received a call from Ajay Mishra telling her that Deepak had sustained fire arm shot. She also admitted that at 12-56-0.6, Ajay had contacted Dr. Kartikey Sharma, well known Neuro Surgeon of the city. She also admitted that Ajay Mishra had called her twice at 12-43--29 and 12-44-43 on her mobile and called her at Ojha Nursing Home. The appellants had immediately informed PW 7 Archana Tulsiyani about the incident and rushed the deceased to the nearest hospital for medical treatment and also told PW 7 about Ojha Nursing home where deceased was admitted. Thereafter, they also arranged for blood of group B+ by calling his friend DW8. By this reckoning, the conduct of the appellants leaves no manner of doubt that the appellants provided all necessary medical aid to the deceased and remained present throughout the treatment given to the deceased and and took the deceased from one nursing home to other and finally, got him admitted in Medical College Allahabad at 1.45 am. Ex. Ka 1 which is medical examination report of medical college shows that the deceased was admitted in hospital by Ajay Mishra appellant. PW 7 also admitted that deceased was fond of drinking in the company of appellants and the investigating officer also collected bottle and glass with liquor inside which clearly shows that the statement of accused that the deceased was taking alcohol, has a ring of truth. Coming to acquittal of the accused under section 201 IPC, we have rummaged through the finding and we find that the learned Sessions Judge did not come across any evidence pointing to tampering of evidence at any point of time with a view to screening themselves from conviction.
Now coming to the situs of injury sustained by the deceased, in our firm opinion, looking to the nature and location of injury of the deceased, the possibility cannot be ruled out that it was a case of suicide by the deceased. The defence has discharged the onus on the basis of their statement under section 161 Cr.P.C and also on the basis of prosecution evidence.
In connection with the view which we have taken as aforesaid we would like to advert to the decision of the Apex Court in the case of Aher Raja Khima Vs. State of Saurashtra reported in (1955) 2 SCR 1285.
"Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weight heavily in favour of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false.........................." (Emphasis supplied) In the case of Kali Ram Vs. State of H.P. (1973) 2 SCC 1048, it is held by the Apex Court as under:
"There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. (Emphasis supplied).
In the case of State of Rajasthan v Prithvi Raj reported in 1995 Supp (3) SCC 410, the Apex Court upheld the acquittal of accused considering his conduct in immediately arranging for Jeep and rushing the deceased to the hospital. The Apex Court observed as under:
"It is true , as contended by the learned counsel that the manner of appreciation of the evidence in respect of dying declaration is not altogether sound. But the High Court has rightly held that the immediate conduct of the accused and his parents in rushing the deceased to the hospital immediately by arranging a Jeep is quite consistent with their being innocent." (Emphasis supplied) Learned Government Advocate as well as Sr. counsel Shri G.S. Chaturvedi, appearing for the complainant minced no words and fairly admitted that there is no illegality permeating the order of acquittal of the appellants under section 201 I.P.C. We have closely examined the entire evidence to find out any shred of evidence under section 201 IPC. The Sessions Judge has rightly given verdict acquitting the appellants under section 201 IPC and therefore, Government Appeal is liable to be dismissed and it is accordingly dismissed.
In so far as appeals against conviction of the accused in ST No 1154 of 2005 State v Ajai Prakash Mishra and Anr. are concerned, the same are allowed. The appellant Ajai Mishra is in jail. He shall be released forthwith if not wanted in any other case. Smt Jaya Mishra is already on bail. Her bail bonds shall stand discharged.
MH August ...5...2011