Mukesh vs State Of U.P.
2025 Latest Caselaw 7328 ALL

Allahabad High Court

Mukesh vs State Of U.P. on 28 May, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on 18.04.2025
 
Delivered on 28.05.2025
 
Neutral Citation No. - 2025:AHC:90857-DB
 
Court No. - 43:- CRIMINAL APPEAL No. - 253 of 1997
 
Appellant :- Mukesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Abida Syed,J.N. Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon'ble Jitendra Kumar Sinha,J.

(Per: Hon'ble Jitendra Kumar Sinha,J.)

1. Heard Ms. Abida Syed, learned Amicus Curiae for the appellant and Shri Ajay Kumar Sharma, learned AGA for the State.

2. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

3. The appellant, by way of filing this appeal, has challenged his conviction under Section 302 IPC and Section 25 of Arms Act and sentence of life imprisonment under Section 302 IPC and one year rigorous imprisonment for offence under Section 25 of Arms Act by the learned Vth Additional Sessions Judge, Kanpur Nagar vide judgement and order dated 06.2.1997 passed in Sessions Trial No.652 of 1993 arising out of Case Crime No.274 of 1993, under Section 302 IPC and 25 Arms Act, Police Station G.R.P., District Kanpur Nagar.

4. The prosecution story in brief is that Head Constable Satya Prakash Uapdhyay lodged a first information report with G.R.P., Police Station Kanpur Nagar stating therein that on 11.06.1993 he was posted as a guard in R.P.F., GM Kanpur. On that day he was on duty to prevent chain pulling etc. on 2352 down Magadh Express and he had to go from Kanpur Central to Allahabad in the same train along with Naik Chintamani Thakur, Naik Ramesh Chandra and Constable Pran Nath Singh. All four of them had rifles. They left at 1.10 am and reached the railway station. The train would touch Kanpur Central at 4.40 Constable Vijayanand Pandey was going to Allahabad with mail in the same train. All the police personnel were in uniform. They were in coach no. 658663. Vijayanand Pandey was standing on the south side of the Howrah end of that coach. The informant and Pran Nath Singh were standing on the south side of the Delhi end of the same coach. Ramesh Chandra and Chintamani were standing on the north side of the Delhi end. After the train started, as soon as it reached the gate, someone pulled the chain. Hearing the whistle sound of pulling the chain, they ran to find who pulled the chain. Vijayanand Pandey shouted from the Howrah end that the chain has been pulled towards them and they have caught the person who pulled the chain. The informant along with other police personnel ran inside the coach and went to that side because the train had not stopped even at that time. They saw that Vijayanand Pandey was holding two boys. Vijayanand Pandey said that he had caught Jaggu and Mukesh. They already knew Juggu and Mukesh. Vijayanand Pandey was holding both of them. Seeing them, Jaggu said to Mukesh, "Will you get me killed or else you should shoot them" Meanwhile, Mukesh took out a country made pistol from his pants and shot Vijayanand Pandey. He fired at the accused at close range on his stomach and Vijayanand Pandey stumbled and fell near the toilet inside the train. Then the speed of the train had slowed down. Jaggu jumped off the train and ran away after getting free from Vijayanand Pandey's grip and they caught Mukesh inside the train. On searching Mukesh, a country made pistol of 315 bore was recovered from his right hand and a razor from the back pocket and two live cartridges of 315 bore from his right pocket and an empty cartridge from inside the pistol. The train stopped at gate no. 81. Constable Vijayanand Pandey was sent to the railway hospital in an injured condition by Pran Nath Singh and Chintamani Thakur. They caught the accused at 5 o'clock in the morning. They got down from the train and prepared the seizure memo in their own handwriting and signature. On this Exhibit A-1 and Exhibit A-2 were appended respectively. They went to the GRP police station and filed a case on the basis of the written complaint written by them on the spot. This complaint is in his handwriting and signature. Exhibit A-3 has been put on it. Accused Mukesh was present in the court. Vijaynand Pandey died some time after reaching the hospital. It is further stated in the written report that Mukesh and Jaggu were habitual criminal committing offence of snatching and robbery on trains.

5. A first information report was lodged which is Exh. Ka3 and investigation was conducted and charge sheet under Section 302 IPC and Section 25 of Arms Act was filed in the Court. The learned Magistrate took cognizance of the offence and committed to the Court of Session for trial. The learned trial Judge framed charge against the appellant under Section 302 IPC and Section 25 of Arms Act and Section 4/25 of Arms Act.

6. The prosecution has examined 8 witnesses, namely, PW-1 Satya Prakash Upadhyaya, PW-2 Chintamani, PW-3 Dr. Irshad Ali, PW-4 Mohd. Ali Hussain, PW-5 Pramod Kumar Chauhan, PW-6 Dr. A.K. Dutta, PW-7 Shri J.V.Lal, PW-8 Yogendra Narain Dwivedi.

7. PW-1 informant Satya Prakash Uapdhyay has supported the version of the first information report in his testimony before the learned trial Court whereas PW-2 Naik Chintamani Thakur has deposed to the effect that he had accompanied the deceased along with informant and other police personnel when the occurrence took place. This witness has supported the prosecution version and has supported testimony of PW-1 before the learned trial Court.

8. PW-3 Dr. Irshad Ali, who has conducted the postmortem of the deceased and found the following injuries on the person of the deceased:-

a) Penetrating bullet wound measuring 1 cm x 1 cm deep up to the abdominal wall, 8 cm above the navel in the middle of the upper abdomen. The edges of the wound were turned inwards. There was burning and blackness around the injury. On opening, a bullet which had lodged in the middle one-third muscle part of the back was taken out and sealed.

b) On internal examination it was found that both the chambers of the heart were empty. The abdomen was punctured. Two liters of blood was found in the abdominal cavity. Six ounces of fluid was present in the stomach. The small intestine was torn in several places. The liver and spleen were yellow. The left kidney was ruptured. The antemortem injury could have been caused by a firearm at 5 o'clock on the same day. The shock and bleeding caused by the antemortem injuries were the cause of death.

9. PW-4 Mohd. Ali Hussain, Assistant Police Inspector is a formal witness, who has proved the G.D. Entry as Exhibit A-5, where PW-5 Pramod Kumar Chauhan, Sub Inspector of Police, G.R.P., Prayagraj has proved the inquest (Panchnama) which is Exhibit A-7.

10. Similarly PW-6 Dr. A.K. Dutta has examined the Constable Vijayanand in an injured condition and has found the following injuries on his body.

1- A circular wound from the chest bone three inches below into the stomach and the stomach membrane was coming out. And there was soot all around the wound and pieces of gun powder were stuck on the vest. The patient was restless and writhing and became quiet after five minutes. The patient's blood pressure and pulse were not measurable.

11. PW-7 Shri J.V. Lal S.S.I. is the investigating officer of the case, who conducted the investigation of the case and has proved police papers.

12. PW-8 HC 756 Yogendra Narayan Dwivedi is a formal witness, who proved the carbon copy of the FIR and the original GD of the accused has been examined.

13. After closure of prosecution case the statement of appellant-accused was recorded under Section 313 Cr.P.C., in which the accused denied his involvement in the case. The appellant accused also stated in his statement under Section 313 Cr.P.C. that he was roped in this case due to enmity.

14. The learned Amicus Curiae, Ms. Abida Syed submits that the place of occurrence is said to be crowded place i.e. a coach of a train and no independent witness has been examined which casts doubt on the veracity of the prosecution case.

15. Learned Amicus Curiae further submits that it is highly doubtful that in a crowded coach of train such incident would take place and nobody could raise any alarm or intervene in the matter, no blood has oozed out from the body of the deceased which also raises doubt on the prosecution story.

16. Learned Amicus Curiae further submits that the place of occurrence is doubtful.

17. Learned Amicus Curiae further submits that two eye witnesses, namely, Pran Nath and Ramesh Chandra have not been examined, which also raises suspicion on the prosecution version.

18. It has also been submitted by her that accused was known to the police, therefore, in order to save the real culprits, the police has roped the appellant in a false case.

19. Learned Amicus Curiae further submits that even if the prosecution version is taken to be true, the case falls under Section 304 Part-1 of IPC and not under Section 302 of IPC.

20. Learned Amicus Curiae further submits that the report of the chemical examination has not been produced by the prosecution.

21. Learned Amicus Curiae further submits that the trial Court has erred in convicting the appellant under Section 302 IPC and 25 of the Arms Act and the appellant deserves to be acquitted of the charge levelled against him and the appeal deserves to be allowed.

22. On the other hand learned AGA supports the judgment of learned trial Court and submits that the judgment of the learned trial Court is a well reasoned one.

23. Learned AGA further submits that the first information report is prompt and the appellant accused has been caught along with the country made pistol on the spot.

24. In case of Thulia Kali Vs. State of Tamil Nadu, (1972) 3 Supreme Court Cases 393, paragraph no.12 reads as under:-

"12.......First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of the spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

25. Similarly in Jai Prakash Singh Vs. The State of Bihar and another (2012) 5 S.C.R., paragraph nos.11 & 12 whereof reads as under:-

"11. Admittedly, the FIR had been lodged promptly within a period of two hours from the time of incident at midnight. Promptness in filing the FIR gives certain assurance of veracity of the version given by the informant/ complainant.

12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the adgvantage of spontaneity,

26. Learned AGA further submits that non examination of two eye witnesses is not fatal to the prosecution case.

27. Learned AGA submits that there is no requirement of law to produce each and every eye witnesses before the Court.

28. Learned AGA further submits that the G.D. entry is also prompt.

29. Learned AGA also highlighted the fact that the testimonies of eye witnesses PW-1 and PW-2 are worthy of credence and their testimonies have been corroborated by the medical evidence.

30. Learned AGA further submits that the prosecution has been able to bring home the charge against the appellant / accused under Section 302 IPC and Section 25 of the Arms Act beyond reasonable doubt.

31. It is further submitted by learned AGA submits that the learned trial Court has appreciated the evidence on record correctly and has rendered a well reasoned judgment, which does not call for any interference by this Court.

32. This Court is tasked with the duty to re-appreciate the evidence available on record of the learned trial Court and come to the conclusion whether the prosecution has been able to bring home the charges levelled against the accused/ appellant beyond shadow of reasonable doubt and also whether the trial Court has appreciated the evidence available on record before it, in the right perspective?

33. The incident took place during the early morning. The deceased and the accused were known to each other and the accused was involved in various criminal cases relating to committing robbery on trains. When the incident of chain pulling took place, the deceased caught hold of the accused and his associate Jaggu and other associate police personnel also reached there and on seeing this, the accused opened fire on the deceased as a result of which, the deceased succumbed to his injuries.

34. In case of Kulwinder Singh and another Vs. State of Punjab, (2015) 6 Supreme Court Cases 674, paragraph nos.23 and 24 reads as under:-

" 23. The last plank of submission of the learned counsel for the appellants is that no independent witness has been examined to substantiate the allegation of the prosecution. It is worth to note that Labh Singh and Harvinder Singh have not been examined by the prosecution. The explanation has been offered that the investigating agency was of the view that they had been won over. The said explanation has been totally substantiated inasmuch as they have been examined as defence witnesses. In such a situation, no adverse inference can be drawn for non-examination of the said witnesses. That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence.

In this regard, it is profitable to reproduce a passage from State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] which reads as follows : (SCC p. 662, para 21)

"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-Independence years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

24. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence.

35. PW-1 and PW-2 are eye witnesses, they have supported the prosecution version in categorical terms. Nothing has emerged in their cross examination, which could discredit their testimony.

36. The contention of learned Amicus Curiae that it is highly improbable that no one came to the place of occurrence as it was a crowded railway coach. But in this regard, it is a common experience that normally a common man tries to avoid visiting scene of crime as often they are unarmed and they do not want to be listed as a witness in a criminal case. Therefore, the argument of learned Amicus Curiae on this point does not support the accused /appellant.

37. It has been further submitted by learned Amicus Curiae that no blood oozed out from the body of the deceased. In this regard it is evident from the testimony of PW-3 the Doctor who conducted the postmortem of the deceased. It is amply clear that the bullet of the deceased was cracked inside his stomach and his pentonium was punctured and two litres of blood were found in the stomach. On this account, there is no force in the argument of learned Amicus Curiae that since the blood did not ooze out, the incident is doubtful.

38. The first information report is prompt. It is well settled law that promptness of lodging the first information report provides the extra credence to the prosecution story.

39. Learned Amicus Curiae has further argued that two of the eye witnesses, namely, Pran Nath and Ramesh Chandra have not been examined but in this regard it is well settled that non examination of witness is not fatal to the prosecution case, if from the evidence of other witness, the prosecution has been able to prove its case.

40. In case of Lallu Manjhi and another Vs. State of Jharkhand, (2003) 2 Supreme Court Cases 401, paragraph no.10 reads as under:-

"10. The law of evidence does not require any particular number of witnesses to be examined in prooof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (I) wholly reliable (ii) wholly unreliable, and (iii) neither wholy reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material partries by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness."

41. It has further been argued by learned Amicus Curiae that there was enmity between the prosecution and the accused due to which appellant / accused has been roped in the false case and as he was known to the police personnel and the evidence of the police personnel is generally unbelievable. In this regard, it is well settled that the evidence of police personnel has to be tested on the same touch stone as that of any other public witness and it is not a general rule that evidence of the police personnel is not worthy of credence.

42. Moreover, the accused has been arrested on the spot which lends assurance to the prosecution case that it was the accused, who committed the offence. Ext. Ka-1 recovery memo of country made pistol has clearly been proved by PW-1.

43. In case of Dhirubhai Bhailalbhai Chauhan and another Vs. State of Gujrarat and others, 2025 SCC OnLine SC601, paragraph no.15 reads as under:-

"15. In the instant case, the appellants were residents of the same village where riots broke out, therefore, their presence at the spot is natural and by itself not incriminating. More so, because it is not the case of the prosecution that they came with arms or instruments of destruction. In these circumstances, their presence at the spot could be that of an innocent bystander who had a right to move freely in absence of prohibitory orders. In such a situation, to sustain their conviction, the prosecution ought to have led some reliable evidence to demonstrate that they were a part of the unlawful assembly and not just spectator. Here no evidence has come on record to indicate that the appellants incited the mob, or they themselves acted in any manner indicative of them being a part of the unlawful assembly. The only evidence in that regard came from PW-2 and PW-4 but that has been discarded by the High Court for cogent reasons which need not be repeated here. In our vie, therefore, on basis of their mere presence at the scene of crime, an inference could not have been drawn that the appellants were a part of the unlawful assembly."

44. In view of the above, since the statements of eye witnesses of PW-1 and 2 are categorical and the appellant / accused has been arrested on the spot and the FIR has been lodged promptly. The evidence of PW-1 and PW-2 is corroborated by medical evidence of PW-3 and there is recovery of country made pistol and live cartridges from the possession of appellant / accused, the prosecution has been able to bring home the charge against appellant/ accused beyond the shadow of reasonable doubt.

45. On perusal of the judgment of learned trial Court, it transpires that learned trial Court has appreciated the evidence before it in right perspective and has arrived at the right conclusion, therefore, the judgment of conviction of and order of sentence impugned does not call for any interference by us.

46. In view of the above, the appeal is devoid of merit and deserves to be dismissed.

47. The appeal is dismissed.

48. Let a copy of this order be communicated by the Registrar (Compliance) to the Chief Judicial Magistrate, Kanpur Nagar for compliance forthwith.

49. The Chief Judicial Magistrate, Kanpur Nagar is also directed to send his compliance report within one month to Court from the date of receipt of copy of the judgement.

50. Registrar General of this Court is also directed to pay an honorarium of Rs. 15,000/- to Ms. Abida Syed, learned Amicus Curiae for rendering effective assistance in the matter.

Order Date :- 28.05.2025

RKM