The Allahabad High Court, while setting aside the order passed by the Additional Sessions Judge, Allahabad, has stated that enmity can be a cause for committing the offence and can also be a cause for false implication.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad passed this order while hearing a Criminal Appeal filed by Rakesh Kumar Pandey alias Daddu Pandey.
This appeal is directed against the order passed by the Additional Sessions Judge, Allahabad dated 31.7.2012 in Sessions Trial, arising out of case under Section 302 IPC read with Section 3/25 of the Arms Act and sentencing him to rigorous imprisonment for life and Rs 5,000 fine under Section 302 IPC and on failure to deposit the fine to undergo additional rigorous imprisonment for a year; five years imprisonment under Section 3/25 of the Arms Act and Rs 2,000 fine and on failure to deposit the fine, to undergo additional imprisonment for six months.
The first informant in the case is one Sudhir Kumar Dwivedi, who has lost his brother Suresh Kumar Dwivedi in the incident in question.
The prosecution case is that the deceased was going on his motorcycle on 18.7.2005, at about 8:45 pm from Rajrooppur to Beniganj in Allahabad. When he reached Chak Niratul Badi Maszid, two persons fired on him, leading to his death. The assailants fled towards Karbala.
The incident was allegedly seen by Sushil Kumar Tripathi, who happens to be the first cousin of the deceased and Nagendra Kumar Dwivedi, nephew of the deceased; along with others and that they can recognize the assailants on seeing them, since there was sufficient light at the place of occurrence.
On account of the incident, people started running helter-skelter and an atmosphere of terror was created in the locality. The shutters of shops were pulled down and there was complete chaos.
The prosecution case further said that the informant’s other brother namely, Surendra Kumar Dwivedi was earlier killed on 14.5.2004. Rakesh Kumar Pandey alias Daddu Pandey and Munna Pandey were accused of murdering him. Deceased Suresh was informant in respect of the murder of his brother Surendra. The bail application of accused Rakesh Kumar Pandey was allowed and he was enlarged on bail while that of Munna Pandey was rejected by the High Court.
Deceased Suresh was to appear as the prosecution witness in that case and he has been eliminated so that he may not survive to support the prosecution case and accused Munna Pandey be released on bail.
The Court was further informed that the prosecution in the murder case of Surendra Dwivedi ended in acquittal of the accused as the main witness, namely Suresh Kumar Dwivedi, could not depose and other witnesses turned hostile.
The informant’s family was allegedly on inimical terms with Awadh Narain Pandey and his two sons Rakesh Kumar Pandey alias Daddu Pandey (accused appellant) and Munna Pandey. This enmity was the alleged reason for commissioning of crime in this case.
The two eye-witnesses, who have come forward to support the prosecution version namely Nagendra Kumar Dwivedi (nephew of the deceased) and Sushil Kumar Tripathi (cousin of the deceased), are close relatives and the primary issue to be examined in the appeal is the credibility and reliability of these eye-witnesses.
Sudhir Kumar Dwivedi is the first informant, who got the written report in respect of the above incident scribed from Sushil Kumar Tripathi, on the basis of which the first information report was lodged and registered as Case under Section 302 IPC. Two unknown persons were shown as accused in the FIR.
The doctor and other formal witnesses have also supported the prosecution case. The incriminating material collected against the accused has been put to him under Section 313 CrPC.
The accused has stated that though he was an accused in the murder of Surendra Kumar Dwivedi but he was falsely implicated and the proceedings have resulted in his acquittal. About the FIR, he claimed that its registration was after consultation with police.
He further denied the recovery of firearms from him and alleged that he was arrested from his house. He specifically asserted that due to enmity, he has been falsely implicated in the matter.
Trial court on the basis of evidence led by the prosecution during trial has found the charges to be proved against the accused under Section 302 IPC and Section 3/25 of the Arms Act. Life sentence under Section 302 IPC alongwith lesser sentence under the Arms Act and fine etc has been awarded to the accused appellant. Thus aggrieved, the accused appellant is before the Court.
Manish Tiwari, Senior Counsel assisted by D.M Tripathi for the appellant submitted that the accused appellant has been falsely implicated in the case on account of old enmity, and that the two eye-witnesses are not trustworthy. Various contradictions in the statement of witnesses have been pointed out in order to allege that the witnesses are not reliable.
He further submitted that the conduct of witnesses in leaving the dead body at the place of occurrence; not taking the deceased to the hospital for medical aid; not being a witness of inquest proceedings etc. clearly go to show that the alleged eye-witnesses were actually not present at the spot when the incident occurred. Argument is that this is a case of blind murder on account of involvement of deceased in property dealing and merely because there was an old enmity with the accused appellant, therefore, he has been falsely implicated in the matter.
Tiwari also argued that there was no source of light available at the place of occurrence for the assailants to have been recognized. He further submitted that though various shops etc were in existence in the vicinity but no independent witness has come forward to testify and merely on the strength of suspicion, due to old enmity, the accused appellant has been implicated. Submission is that the judgment of conviction and sentence is contrary to the weight of evidence and material available on record.
Per contra, AGA and Satish Trivedi, Senior Counsel assisted by Sheshadri Trivedi for the informant submitted that this is a case of murder of an eyewitness only to ensure that the deceased may not testify against Munna Pandey, so that he may be enlarged on bail.
He further submitted that there was sufficient light on the spot. It is also urged that eye-witnesses’ account is wholly natural and believable and the judgment of conviction and sentence is well reasoned and requires no interference.
The Court observed that,
We have already noticed that Nagendra Kumar Dwivedi in his statement had not explained the manner in which he saw the incident. It was not clarified as to whether he had crossed the deceased or not and we have already expressed our doubt about the incident being witnessed by Nagendra Kumar Dwivedi for such a reason. The statement of Sushil Kumar Tripathi that he signalled the deceased to stop and on return seeing the incident is clearly an improvement in the statement of Sushil Kumar Tripathi over what was stated by Nagendra Kumar Dwivedi. Such a disclosure was otherwise not made to the Investigating Officer while recording the statement of Sushil Kumar Tripathi under Section 161 CrPC. This inconsistency in the testimony of Sushil Kumar Tripathi vis-a-vis Nagendra Kumar Dwivedi creates a serious doubt not only upon their presence at the place of occurrence but also on their seeing the incident.
We also find substance in the argument of Manish Tiwari, Senior Advocate that the conduct of Nagendra Kumar Dwivedi and Sushil Kumar Tripathi in not stopping near the injured, making no efforts to take him to a hospital or provide medical help or failing to be present at the time of inquest etc and delayed recording of their statement are factors contributing to the doubt in the prosecution case.
The argument of Satish Trivedi, Senior Advocate that not naming the accused in the FIR discloses the fairness of prosecution although seems attractive at the outset but that itself may not be determinative of credibility of the prosecution case.
The prosecution witnesses fall in the category of chance and interested witness and their testimony will have to be shown to be entirely reliable before their testimony could be relied upon. Upon careful evaluation of the testimony of Nagendra Kumar Dwivedi and Sushil Kumar Tripathi we find that doubt remains regarding their presence at the place of occurrence as also the manner in which they allegedly saw the incident.
Enmity otherwise is admitted between the parties, which acts as a double edged sword and cuts both ways. It can be a cause for committing the offence and can also be a cause for false implication.
In a matter of this kind, the Court will otherwise have to be careful and cautious in analysing the evidence to determine whether the witnesses are wholly reliable, wholly unreliable or partially reliable and partially unreliable.
“For the discussions and deliberations held above, we find that the prosecution has failed to establish the guilt of the accused appellant beyond all reasonable doubts. The appellant who has already undergone more than 12 years of actual incarceration is entitled to the benefit of doubt in the matter”, the Court further observed while allowing the appeal.
“The order dated 31.7.2012, passed by the Additional Sessions Judge (Ex-cadre), Allahabad, dated 31.07.2012, in Sessions Trial under Section 3/25 of the Arms Act, Police Station Khuldabad, District Allahabad, is set aside. Since the accused appellant is in jail, he shall be set at liberty forthwith, unless he is wanted in any other case, subject to compliance of Section 437-A CrPC”, the Court ordered.