Sandeep Shukla @ Gopal Shukla vs State Of U.P.
2017 Latest Caselaw 7814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

					     A.F.R.					                   Reserved
 

 
		    Case :- CRIMINAL APPEAL No. - 1536 of 2007
 

 
Appellant :- Sandeep Shukla @ Gopal Shukla,
 
S/o Sri Arun Kumar Shukla, 
 
R/o 4/83, Rishi Nagar, Shuklaganj,
 
Police Station- Ganga Ghat, Unnao.   	.............	     Appellant
 

 
			Versus.
 

 
Respondent :- State Of U.P.	           ................ 	  Respondent.
 

 
Counsel for Appellant :- Arun Sinha,M S Khan,Piyush Asthana,Rajeev Kumar Singh
 
Counsel for Respondent :- G.A
 

 
Hon'ble Prashant Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar Srivastava-II,J.)

1. Instant appeal has arisen against the judgment and order dated 5.6.2007 passed by learned Additional Sessions Judge,Court No.8, Faizabad in Sessions Trial No.408 of 2004 arising out of Case Crime No.407 of 2004, Police Station Kotwali Nagar, District Faizabad whereby the learned trial court has convicted the accused- appellant Sandeep Shukla @ Gopal Shukla under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs.30,000/- with default stipulation of two years' rigorous imprisonment. Learned trial court has acquitted the accused appellant under Section 394 and 411 IPC. Accused-appellant Mukesh Kumar Gupta was also acquitted under Section 302 read with 34 IPC and Section 394, 411 IPC while accused Arvind Shukla is acquitted under Section 302 read with 34 IPC and 394 IPC.

2. According to the prosecution, on 22/23.2.2004 at 00.30 AM informant Ram Prasad Gupta, P.W.1 submitted a written report at Police Station Kotwali Nagar, District, Faizabad stating that he is the manager of Ramdev Damodhar Das Smriti Bhawan, Faizabad. Dhannajay Pandey deceased alongwith his driver came in the 'Dharmshala' on 18.2.2004 by Maruti Van No. U.P.78 A.G. 0603. One room was taken on rent. On 22.2.2004, there was heavy rush as 'Barat' of daughter of Shukla Cycle Subhash Nagar came in the 'Dharmshala'. Complainant was sitting with Dhananjay Pandey from 09.30 P.M. to 10.00 P.M. Complainant asked Dhananjay Pandey to go to his room. Dhananjay Pandey told him that his driver has gone for dinner and he would sleep after he arrives. Informant went to his room. After about an hour, driver of the deceased knocked the door of informant. On opening the door, informant found the driver Gopal in unconscious condition. There were scratches on his chest. 'Baratis' were surrounding him. Informant went to the room of Dhnanjay Pandey. He found that Dhananjay Pandey was lying on floor near the door in the room. Blood was oozing from his mouth and nose. He was dead. He was wearing a towel. He was semi nude. There were injuries near his private parts. Semen was also found near his penis. No commotion was found in the room.

3. A case under Section 302 IPC was registered at Crime No.407 of 2004. Investigation was handed over to S.S.I Hari Ram Kashyap. On 23.2.2004 at 7.00 AM inquest proceedings were conducted by the investigating officer Hari Ram Kashyap. Injuries found on the body of deceased were noted down. Photography was also done. Bloodstained rug and underwear, cutter blade and broken blade, semen, plain and bloodstained earth and receipt books were recovered by the investigating officer. Accused was taken to District Hospital, Faizabad by home-guard on 22.2.2004 at 11.55 P.M. for his medical examination where he was admitted in emergency.

4. On 23.2.2004, an application was given by Gaurav Agrawal stating that his firm M/s Devi & Company and M/s Chandra Kishore, Ashok Kumar and sons is situated at 48/226 Generalganj, Kanpur. Sri Dhananjay Prasad Pandey who is an employee and driver Sandeep Shukla @ Gopal Shukla left Kanpur on 18.2.2004 for collecting money from Faizabad and nearby Districts. On 22.2.2004 at about 12.30 in the night, he received information from P.S., Kotwali that Dhananjay Pandey has been murdered. He came to Faizabad, where he came to know that Dhananjay Prasad Pandey was murdered and driver Sandeep Shukla @ Gopal Shukla is injured. Receipt books are found in the room of the deceased, from which he came to know that Rs.7,47,204/- were collected by the deceased which has been looted. On the basis of this information, case was altered under Section 394 IPC.

5. Postmortem of the dead body of Dhananjay Pandey was conducted on 23.2.2004 at 3.30 PM by P.W.10 Dr. Anurag Kumar Rajwanshi wherein the cause of death was found as antemortem injuries. Site plan was prepared. Statement of witnesses were also recorded.

6. On 25.2.2004 Inspector incharge of Police Station Kotwali Kailash Nath Dwivedi alongwith the investigating officer S.I. Hari Lal Kashyap and other police party arrested the accused at 11.30 AM near BJP office, Faizabad. One bag was recovered from his possession and Rs.6,40,100/-and five bank drafts were recovered. A confessional statement of the accused was also recorded in the presence of Gaurav Agrawal and Vikas Agrawal wherein it is admitted that amount was looted from the deceased. On 11.3.2004 investigating officer alongwith police party recovered two bank drafts on the pointing out of the accused Mukesh Kumar Gupta who has stated that the same were looted from the deceased.

7. After concluding the investigation charge-sheet was submitted against the accused persons under Section 302, 394, 411 IPC.

8. Accused Sandeep Shukla @ Gopal Shukla and Mukesh Kumar Gupta were charged under Section 302/34, 394, 411 IPC while accused Awadhesh Shukla was charged under Section 302/34 IPC and 394 IPC who denied the charges and claimed trial.

9. In order to prove its case prosecution has produced P.W.1 Ram Prasad Gupta informant, P.W.2, Shyam Prakash Chaurasia witness of recovery of bloodstained earth, underwear, cutter blade, broken blade, remaining sperms, plain and bloodstained floor, P.W.3, Keshari Prasad Shukla who was declared hostile, P.W.4, Inspector Kailash Nath Dwivedi, who was the Station House Officer of Police Station Kotwali and witnesses of recovery of Rs.6,40,100/-, P.W.5, Gaurav Agrawal, P.W.6 Constable Vijay Shankar Singh witness of recovery from the accused, P.W.7, Dr. Nanak Saran who has conducted the medico-legal examination of accused, P.W.8 Vikas Agrawal, P.W.9 Constable Anil Kumar Sharma, formal witness, P.W.10 Dr. Anurag Kumar Rajwanshi who has conducted postmortem on dead body of the deceased, P.W.11 S.I. Hari Lal Kashyap investigating officer, P.W.12, Constable Ram Karan, formal witness.

10. In the statement under Section 313 Cr.P.C., it is admitted by accused that he alongwith deceased was staying in room no.21 of 'Dharmshala' Damodhar Das, Subhash Nagar, Faizabad. It is also admitted that the incident has taken place. Unknown persons have assaulted Dhananjay Pandey and the accused. He was brought outside the room, thereafter, he got unconscious. No recovery was made from his possession.

11. D.W.1, Daya Nand Tiwari was produced, who was also staying in room no.9 of the 'Dharmshala' for the last seven years.

12. Learned Trial Court had recorded the findings of conviction against the accused-appellant under Section 302 IPC but disbelieved the theory of loot and recovery of Rs.6,40,100/- from possession of the accused-appellant. Accused-appellant was acquitted under Sections 394, 411 IPC. Learned trial court also held that the prosecution has failed to prove the charges against co-accused Mukesh Kumar Gupta and Arvind Shukla. Accordingly, they were acquitted.

13. It is conceded by the learned AGA that no appeal against the acquittal of co-accused Mukesh Kumar Gupta and Arvind Shukla and the acquittal accused-appellant under Section 394 IPC and 411 IPC has preferred by the State. Accordingly, those findings have attained finality.

14. We have heard Sri Piyush Asthana, learned counsel for the appellant and Sri C.S. Pandey, learned AGA for the State and perused the record.

15. According to the prosecution version, the incident took place on 22.2.2004 in between 10.00 to 11.00 PM wherein deceased Dhananjay Prasad Pandey was murdered in his room. Postmortem examination of dead body of the deceased was conducted by P.W.10, Dr. Anurag Kumar Rajwanshi on 23.2.2004 at 3.30 PM who found the following injuries on his body:

(i) Incised wound 5cmx 1cm x muscle deep on left side of neck.

(ii) Incised wound 2cm x 1cm x muscle deep on left side of neck.

(iii) Incised wound 9cm x 6cm x muscle deep on left side of face.

(iv) contused swelling in 10 cm x 7cm over and around right eye.

(v) Incised wound 4cm x 3cm on leftside of face 3 cm away from left eye brow.

(vi) Incised wound of 8cm x 1cm x muscle deep left arm.

(vii) Incised wound of 5cm x 1 cm x muscle deep on left arm adjacent to injury no.6.

(viii) Incised wound 3cm x 1cm x muscle deep on left adjacent of injury no.7.

(ix) Incised wound 10cm x 3cm x muscle deep on pubic region just left to root of penis.

(x) Incised wound 13cm x .5cm x muscle deep on left back.

(xi) Incised wound 18cm x .5cm x muscle deep left side of back.

(xii) Incised wound 6cm x .5cm x muscle deep on left side of back adjacent to injury no.11.

(xiii) Incised wound 4cm x .5cm x muscle deep on leftside back adjacent to injury no.12.

(xiv) Incised wound 3cm x.5cm x muscle deep on left side of back adjacent to injury no.14

(xv) Abraded, contusion on right thigh.

16. According to opinion of the doctor, the death occurred about half day back and death was caused due to shock and haemorrhage, as a result of antemortem injuries.

17. According to the opinion of the doctor death could have been caused on 22.2.2004 at about 10.00-11.00 PM. It is proved that the deceased died due to the antemortem injuries sustained by him.

18. Accused-appellant was found unconscious at the door of informant, P.W.1. He was medically examined on 22.2.2004 at 11.55 PM by P.W.7 Dr. Nanak Saran at District Hospital, Faizabad as unknown person who was brought by home-guard 1091 Lal Chand Tiwari. Doctor found the appellant in semi conscious condition. His general condition was poor. Following injuries were found on his body:-

(i) 20 abrasion in the area of 20cm x 18cm on the right side of upper part of chest, shoulder and upper part of arm, bleeding present, direction of liner abrasion on the lower side and cross.

(ii)14 liner abrasion, size 6cm to 13cm in the area of 21cm x 12cm on the left side of chest and shoulder and upper part of the arm, direction of abrasion downward and towards the nipple, bleeding present.

19. The injuries were simple in nature and caused by sharp edged weapon. Injuries were fresh. Patient was admitted in the emergency and was referred to surgeon and physician for expert opinion and management.

20. P.W.7 Dr. Saran has established this fact that the accused-appellant was admitted in the hospital in injured condition with injuries of sharped edged weapon. These injuries could not be self inflicted.

21. Injuries of the deceased and accused-appellant resemble to the extent that the injuries to both of them have been caused by sharp edged weapons.

22. Now, it is to be seen as to whether, the prosecution has successfully proved the charges under Section 302 IPC against the accused-appellant ?

23. At the very outset, it is very relevant that the learned trial court has disbelieved the theory of loot as well as recovery of Rs.6,40,100/- from the possession of the accused-appellant. It is also on record that there is no direct evidence or no eye witness account of the incident. Although in question no.4 of the statement under Section 313 Cr.P.C. of the accused-appellant, it is stated by him that the incident has taken place wherein he was also assaulted by the miscreants alongwith the deceased. He was brought outside the room. Thereafter, he did not know what has happened. This fact finds support from the statement of P.W.1 informant Ram Prasad Gupta that accused appellant knocked the door of his room. When he opened the door, he found the accused-appellant in unconscious condition on the floor who was surrounded by the 'Baratis'. Accused-appellant was taken to hospital by the home-guard wherein he was medico legally examined and total 34 injuries of sharp edged weapon were found on his body.

24. Learned counsel for the appellant submits that accused-appellant has been falsely implicated. Prosecution has utterly failed to prove the charge under Section 302 IPC against him beyond reasonable doubt. It is further submitted that it is a case of circumstantial evidence wherein the chain of circumstance is not complete inasmuch as, the theory of loot and recovery of looted amount from possession of the accused-appellant has been disbelieved by the learned trial court and was not challenged. Accordingly it attained finality. It is further submitted that neither P.W.1 Ram Prasad Gupta nor P.W.6, Vijay Shankar Singh or P.W.8 Vikas Agrawal have stated that they have seen the incident, rather, P.W.5,Gaurav Agrawal and P.W.8 Vikas Agrawal were not present in Faizabad on the date of incident. They came on receiving information of the incident. Statement of informant, P.W.1 Ram Prasad Gupta did not implicate the accused-appellant. It is further submitted that the investigation of this case has been made in a very tainted manner. Investigating officer did not make any effort to find out the genesis of the incident, particularly, keeping in view the condition of dead body wherein the deceased was found semi nude bearing towel (gamchha) only. Injuries were found near his private parts. In pubic region semen were also found at the tip of the penis and on the floor. It is not the case of the prosecution that the deceased made any attempt to have unnatural sex with the accused. No other material is on record to explain the abnormal condition of the deceased. It is further submitted that when the theory of loot and recovery has been disbelieved then there was no motive for the accused-appellant to commit murder of the deceased. Prosecution has not been able to explain as to how accused-appellant received injuries on his body?

25. Per contra, learned AGA submits that the accused and deceased were residing in the same room. Only accused could explain as to how deceased died ? But no plausible explanation has been offered by the accused.

26. P.W.2, Shyam Prakash Chaurasia who is the witness of recovery of articles from room of the deceased, while P.W.4, Inspector Kailash Nath Dwivedi is the witness of recovery of an amount of Rs.6,40,100/- from possession of the accused-appellant. He is also the witness of confessional statement given by the accused before police.

27. Statement of P.W.4, Inspector Kailash Nath Dwivedi is of no help to the prosecution on the ground that:

(i) Firstly: Learned trial court has disbelieved the theory of loot and recovery from possession of the accused-appellant which has not been challenged before this Court. Accordingly, learned trial court has disbelieved the testimony of P.W.4, Kailash Nath Dwivedi. So far as, the recovery is concerned, his statement could not be of any help to the prosecution.

(ii) Secondly: He is a witness of confessional statement given by the accused-appellant before the police. Section 25 of the Indian Evidence Act specifically prohibits the admissibility of confessional statement made before the police. So far as, the factum of murder of the deceased is concerned, testimony of P.W.4, Inspector Kailash Nath Dwivedi is of no use.

28. P.W.5, Gaurav Agrawal and P.W.8 Vikas Agrawal are witnesses of recovery. Very surprising aspect of this case is that a recovery of Rs.6,40,100/- was shown to have been made from possession of the accused-appellant. The recovered amount was given to P.W.5, Gaurav Agrawal by the police, even without taking any receipt or preparing any memo of 'supurdagi'. How it can be believed that the police officers were so ignorant of the provisions of law that they have handed over such a huge amount without making any entry in the G.D. of the concerned Police Station or without preparing a 'supurdginama'. This aspect needs an inquiry by the concerned Superior Police Officers. Statement of P.W.5, Gaurav Agrawal and P.W.8, Vikas Agrawal also did not connect the accused appellant with the murder of deceased. Both of them have stated that on getting information of the murder and injuries of accused, they came to Faizabad. Thereafter, recovery was made. Hence, statement of these witnesses on the factum of murder of the deceased by accused-appellant is not reliable.

29. P.W.6 Constable Vijay Shankar Singh is also a witness of recovery and confessional statement made by the accused-appellant before the Police which is also not admissible. Dr. Anurag Kumar Rajwanshi P.W.10 has conducted the postmortem on dead body of the deceased Dhananjay Pandey, while P.W.7, Dr. Nanak Saran has conducted the medico legal examination of injuries on body of the accused-appellant.

30. After dealing with the evidence of aforesaid witnesses, now we have to see the material available on record to prove the charge of murder against the accused. The only factum against the accused is that he was living in the same room no.21 alongwith the deceased. P.W.1, Ram Prasad Gupta has stated that the deceased was in his company till 10.00 P.M. Deceased told him that his driver has gone for dinner. P.W.1 Ram Prasad Gupta went to his room at about 10.00 P.M. and slept. After an hour accused-appellant Gopal driver knocked his door. On opening the door, he found Gopal in unconscious state at the floor in front of his door. He was also having injuries on his body. Injuries on body of the accused are proved by P.W.7, Dr. Nanak Saran. P.W.1, Ram Prasad Gupta has admitted that he did not write the report willingly, rather it was written on the dictation by the police. Even his signature on the recovery memo were made on blank papers. P.W.11, Hari Lal Kashyap is the investigating officer who has stated that photography of the place of incident was not done while P.W.1 Ram Prasad Gupta has specifically stated that photography of the place of incident was done. Photographs have not been brought on record. Why, the photographs have been withheld by the prosecution is not explained. P.W.11 S.I. Hari Lal Kashyap has also admitted that the accused was admitted in the hospital in injured condition. But when he was discharged is not mentioned in the G.D. Even in the medico legal examination report, it is mentioned that the patient was admitted. If the accused was admitted in the hospital then burden lies upon the prosecution to explain as to when he was discharged from the hospital. This fact attains relevance and importance as the prosecution has stated that on 25.2.2004 recovery was made from possession of the accused-appellant. Injuries sustained by the accused have also not been explained by the prosecution. As to how accused has sustained the injuries? It is admitted by the accused in his statement under Section 313 Cr.P.C that he was living with the deceased in room no.21. but he has given an explanation that some unknown persons have assaulted the deceased as well as the accused. Thereafter, accused was brought outside the room. Thereafter, he did not know as to what happened.

31. Learned AGA has drawn our attention towards Section 106 of the Indian Evidence Act which provide as under:

Section 106 Indian Evidence Act reads as under:-

106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of that he had a ticket is on him.

32. It is held by the Hon'ble Apex Court in Nizam and another vs. State of Rajasthan (2016)1 SCC 550 that:

"15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram (2006)12 SCC 254 this Court held as under: (SCC p. 265, para 23)

23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, an additional link which completes the chain. The Principle has been succinctly stated in Naina Mohmad, AIR 1960 Mad 218."

33. In State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, it was held :-

"23. .... The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed (AIR 1960 Mad. 218)."

(underlined by us)

34. Section 106 Indian Evidence Act does not shift the burden of proof in a criminal trial which is always upon the prosecution. Initially, prosecution has to discharge its burden to prove the guilt against accused beyond reasonable doubt. Thereafter, accused can be asked to discharge his burden to offer any explanation and if he fails to adduce any explanation then it is an additional link which may complete the chain.

35. In the present case, there is no eye witness account of the incident. Chain of circumstances is also not complete. P.W.1, Ram Prasad Gupta has stated that the deceased was in his company till 10.00 P.M. Thereafter, P.W.1, Ram Prasad Gupta went to his room and slept. After an hour, his door was knocked by the accused. On opening the door, P.W.1 Ram Prasad Gupta found the accused in unconscious state lying on floor at his door. Then he went in the room of deceased and found him in semi-nude condition bearing a 'Gamchha'. There were good number of injuries on his body including in the pubic area but semen was found on the floor and on tip of the penis. It was the duty of the prosecution to connect the link as to when the accused came and what happened in the room in between accused and the deceased. It is not the case of the prosecution that any attempt of making unnatural sex with the accused was made by the deceased. The incident relates to the month of February wherein it is quite cold, while the deceased was wearing only a 'Gamchha'. It is further relevant that on the date of incident, there was a marriage party in the 'Dharmshala' wherein large crowd was there. It is also stated by P.W.1 Ram Prasad Gupta that when he opened the door of his room, he found the accused in unconscious condition at his door and number of 'Baratis' were surrounding him. Accused was in injured condition who has also sustained incised wound. What was the occasion that the deceased was found lying on the ground having his semen found on the floor. It appears that the investigating officer has not made any attempt to find out all the reasons and all the circumstances. He had conducted the investigation in a very scanty manner. The role of P.W.4, Inspector Kailash Nath Dwivedi is also suspicious because in the chik FIR, name of Hari Lal Kashyap is mentioned as preliminary investigating officer and name of investigating officer has been written as Kailash Nath Dwivedi. Why it is so, no explanation has been offered by P.W.11 Hari Lal Kashyap, P.W.4, Kailash Nath Dwivedi rather P.W.11, Hari Lal Kashyap has admitted that he was the investigating officer of this case and was working under supervision of inspector in charge of the Police Station, Kailash Nath Dwivedi. Hence, the initial burden to prove the charges under Section 302 IPC against the accused-appellant beyond reasonable doubt could not be discharged by the prosecution beyond reasonable doubt. Hence, the presumption under Section 106 Indian Evidence Act could not be drawn against the accused as he has given plausible explanation which has not explained by the prosecution.

36. On the basis of discussion made above, we are of the considered view that the learned trial court has erred in law in misrepresenting the evidence on record. The prosecution has failed to prove the charges under Section 302 IPC against the accused-appellant.

37. Accordingly, the appeal is liable to be allowed. The appeal is allowed and the Judgment and order dated 5.6.2007 passed by learned trial court is set aside. Accused-appellant is acquitted under Section 302 IPC. He is in jail. He shall be released forthwith, if not wanted in any other case.

38. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

	 [Anil Kumar Srivastava-II,J.]       [Prashant Kumar,J.]
 

 
Order Date :-08.12.2017
 
Subodh/-