Allowed

Prakash v. State of U.P.

Allahabad HC17 Aug 2019CRLA/3609/2015

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 302/34 and 307/34 IPC arising from a 1992 shooting. The court found the eye-witness accounts mutually contradictory and uncorroborated by medical evidence and the site plan, the original record lost and reconstructed, and statements under Section 161 CrPC never supplied to the accused. Conviction and sentence set aside; appeals allowed.

What did the court decide?

Appeals allowed; impugned judgment and order of conviction and sentence set aside; appellant Prakash set at liberty forthwith and appellant Ravi Karan discharged from his bail bonds.

Prakash Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2019)

Court No. 47

A. F. R.

Reserved on: 09.07.2019 Delivered on: 17.08.2019

¶5

CRIMINAL APPEAL No. - 3609 of 2015

¶6

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

¶7

Counsel for Appellant :- Mangala Prasad Rai,Rajiv Lochan Shukla,Sharangpani Vikramdhar Dw Counsel for Respondent :- Govt.Advocate,Avanish Kumar Singh,Krishna Kumar Singh

¶8

Connected with

¶9

CRIMINAL APPEAL No. - 1807 of 2015

¶10

Appellant :- Ravi Karan

¶11

Respondent :- State Of U.P.

¶12

Counsel for Appellant :- Mangala Prasad Rai

¶13

Counsel for Respondent :- Govt.Advocate,Krishna Kumar Singh

¶14

Hon. R.S.R. (Maurya),J

¶15

Hon. Umesh Kumar, J

¶16

(Delivered by Umesh Kumar, J)

¶17

1. These two criminal appeals have been filed challenging the judgment and order dated 30.04.2015 passed by Additional Sessions Judge, Court No.3, Fatehpur in S.T. No. 1185 of 2001 ( State Vs. Ravi Karan and others) by which the appellants have been convicted and sentenced for life imprisonment and a fine of Rs. 20,000/- each under Sections 302 read with Section 34 IPC

¶18

¶19

and in default to undergo 2 years R.I., and under Section 307 read with Section 34 IPC, to undergo 7 years R.I. and fine of Rs. 10,000/- each; and in default to further undergo one year R.I. All the sentences are directed to run concurrently. The accused-Bhola died during trial.

¶20

P.W.1 Shiv Prasad-informant has given a written report at Police Station Kishanpur district, Fatehpur alleging that in the evening on 16.2.1992 at about 6.00 P.M. some altercation took place between Moti Lal with Pitai Kumhar of his village; his son Hira Lal and Awadesh intervened and brought Moti Lal to the house. Soon thereafter, Ravi Karan son of Ram Naresh having Rifle, Prakash armed with DBBL gun and Bhola having lathi in his hand came abusing in front of the door of Moti Lal; Moti Lal asked them not to abuse, upon hearing the noise, the informant, his son Suresh Chandra, sister-in-law ( wife of Babu Lal), wife of Moti Lal, and Chiya daughter of Moti Lal and Awadhesh arrived and forbade them not to abuse, on which, accused Bhola exhorted saying kill them as their bullying has increased and now they have started teasing their own persons; in the meantime, accused Prakash and Ravi Karan having Rifle and gun in their hands fired on Moti Lal which hit on his stomach; the wife of Moti Lal-Sarla, his daughter Chiya and informant’s son Suresh Chandra and his sister-in-law received injuries. The accused appellants ran away from the spot abusing and they could not be caught hold due to fear. The injured were sent to hospital for treatment along with villagers and he has come to lodge first information report.

¶21

On the basis of the said information, chick FIR (Ex.Ka-2) was prepared and a case under Sections 307/504 IPC at Case Crime No. 30 of 1992 was registered against the accused namely Ravi Karan, Prakash and Bhola and relevant entry was made in the

¶22

¶23

G.D., but the GD and the said FIR is not available on record. Subsequently, after death of injured-Moti Lal on 17.2.1992, the offence under Section 307/504 IPC was converted into Section 302 IPC and relevant entry in the GD regarding conversion of the case was entered at GD No. 21 at 5.30 P.M. Dated 17.2.1992.

¶24

Investigation of case was made by P.W.6 S.I. Ravi Chandra Mishra. He recorded the statements of witnesses under Section 161 Cr.P.C., inspected the spot, prepared site plan, sent dead body for post mortem to the District Hospital, Fatehpur and after completing investigation submitted charge sheet under Section 302, 307, 504 IPC.

¶25

Learned Trial Court framed charges against the accusedappellants. Accused-Bhola was charged under Section 302/34 and section 307/34 IPC. The accused Ravi Karan and Prakash were charged under Sections 302/307 IPC. The accused-appellants denied their guilt and claimed to be tried.

¶26

The prosecution in support of its case has examined 8 witnesses. P.W.1 Shiv Prasad is the informant, P.W.2 Sarla Deviinjured witness, P.W.3 Jhallu Prasad Misra-Head Constable, P.W.4 Dr. Bharat Namdeo who conducted post mortem, P.W.5 Dr. Devendra Kumar who examined and prepared injuries reports of Chiya, Suresh and Phulmati w/o Babu Lal, P.W.6 Ravindra Mishra, I.O., P.W.7 Subhash Chandra Singh-Pharmacist and P.W.8 Chiya.

¶27

Here, it is note worthy that entire prosecution documents were lost before committal of the case and was re-constructed under the orders of the then District Judge, Fatehpur. After reconstruction of the documents such as nakal tahrir (Ex.Ka.2), G.D (Ex.Ka.3), post mortem report (Ex.Ka.4), injury reports of Phulmati (Ex.Ka.5), injury report of Chiya (Ex.Ka.6) and Suresh (Ex.Ka.7),

¶28

¶29

the case was committed to the Court of Sessions on 20.12.2001 by Judicial Magistrate, Khaga, Fatehpur which was registered as S.T. No. 1185 of 2001( State Vs. Ravi Karan and others)

¶30

Statements of accused-appellants under Section 313 Cr.P.C. was recorded thrice; Firstly on 4.11.2009, after the examination of prosecution witnesses 1 to 6. They denied the prosecution allegation and stated that evidence against them have been led on the basis of forged document; they have been falsely implicated. The accused Ravi Karan has further stated that under the influence of enemies, entire prosecution story has been concocted and false evidence has been led in the case. He has also taken plea of alibi. The prosecution on 20.7.2013 again produced P.W.7 and P.W.8. The accused Prakash denied the evidence against him and claimed to be innocent; he asserted that unknown dacoits during course of commission of dacoity have caused death of Moti Lal and he has been falsely implicated in the case in collusion with local police. Simultaneously, accused Ravi Karan has also made similar statement. Thirdly, statement of accused-Prakash and Ravi Karan under Section 313 Cr.P.C. was recorded on 19.10.2013 after filing of FSL report (Ex.Ka.8). The accused said that they do not know about the report. The extract of medico legal report Register page No. 47 injury report of Sarla Devi dated 17.2.1992 has been filed by P.W.7 who stated that this report has not been prepared before him. Moreover, he stated that he cannot tell by whom this report was prepared.

¶31

In the autopsy report, following injuries were found on the body of deceased;

¶32

1 . Fire arm wound of entry 8 cm x 5 cm x cavity deep over left iliac fossae of abdomen 5 cm. to A.S. aliac spinal. Blackening

¶33

¶34

present. Direction from right to left and little upward. Blackening present. Liver and intestine loops coming out of wound and wadding piece recovered from muscle.

¶35

2. Fire arm wound of entry 8 cm. x 4 cm. bone deep over right leg middle part anterior surface. Tibia and fibula bones fractured into multiple pieces. No blackening and tattooing. Three small pellets recovered. Seven small pellets recovered from abdominal cavity.

¶36

3. Multiple fire arm wound of entry in an area of 15 cm. x 6 cm. x 0.1 cm. over left thigh postero-lateral surface upper part. No blacking and tattooing. Two small pellets recovered from wound cavity.

¶37

4. Multiple fire arm wounds of entry in an area of 7 cm. x 3 cm. over left leg lower part lateral surface. No blackening or tattooing. One small pellet recovered from wound.

¶38

Photo copies of the injury reports of injured Phulmati, Chiya and Suresh are not much visible and therefore, relevant extract from the statement of the doctor is quoted here in below;

¶39

Jherh Qwyerh

¶40

pksV ua0&1 QVk gqvk ?kko 05 lseh x fLdu Mhi tks fd vxzckgq ij lkeus dh vksj fjLV tksM+ ls 3-5 lseh mij FkkA ykfyek ;qDr [kwu dk FkDdk yxk FkkA \ pksV ua0&2 QVk gqvk ?kko 0-5 lseh x 0-5 lseh x Ropk dh xgjkbZ rd tks fd nkfguh fupys vxzckgq ij lkeus dh vksj 6-5 lseh nkfguh fjLV ykbu ls mij FkkA rFkk ykfyek ;qDr [kwu dk FkDdk yxk FkkA

¶41

fp;k

¶42

pksV & QVk gqvk ?kko 1 lseh x 1 lseh x ekal rd xgjk tks fd nkfguh tka?k ds lkeus dh vksj rFkk ?kqVus ds tksM+ ls 8 lseh mij vUnj dh rjQA ?kko ds vUnj dksbZ oLrq ?kqalh gq;h izrhr gks jgh FkhA ?kko vfu;fer Fkk rFkk og oLrq tks ?kko esa /kalh gq;h og ?kko ls 1 lseh vkxs FkhA ?kko esa dkfyek ekStwn FkhA ?kko ls

¶43

¶44

ykfyek ;qDr inkFkZ fjl jgk FkkA pksV dks ,Dl js dh lykg nh x;h FkhA

¶45

esjh jk; esa ;g pksV lk/kkj.k Fkh vkSj vXus;kL= }kjk igqapkbZ x;h FkhA pksV 3@4 fnu iqjkuh FkhA ;g pksV Hkh fnukad 16-02-92 dks 6-00 cts lka; dks vkuk lEHko gSA

¶46

lqjs’k

¶47

pksV & QVk gqvk ?kko 4 lseh x 1 lseh x ekal rd xgjk tks fd nkfguh Nkrh esa lkeus dh vksj 5-5 lseh nkfguh fuIiy ls nwj FkkA bl pksV ls [kwu fjl jgk Fkk rFkk ?kko ds fdukjs vfu;af=r FksA?kko ds fdukjs dkfyek ;qDr FksA pksV ds ,Dl js dh lykg nh x;h FkhA pksV dks fuxjkuh es j[kk x;k FkkA

¶48

We have heard Sri Brijesh Sahai, learned Senior Counsel assisted by Sri Bhavya Sahai for appellant-Prakash and Sri Mangala Prasad Rai, learned Senior Counsel assisted by Sri Ashok Kumar for appellant- Ravi Karan, Sri Anil Kumar Kushwaha for informant and the learned AGA on behalf of State and have perused the record.

¶49

Learned Counsel for the appellants argued that entire proceeding of trial is based on illegal evidence adduced by the prosecution; allegations of prosecution even if assumed to be true, in committing the said offence, no role has been assigned to the appellant. Learned Counsel appearing for appellant- Ravi Karan has raised argument that no role has been assigned; the appellant has been said to be armed with Rifle, where as no rifle injury was found either on the body of deceased-Moti Lal or any of the injured, and this indicates that in the commission of offence, appellant was not involved; only on the statement in chief of the witnesses, conviction has been based and not on the totality of the evidence adduced by prosecution; it was the categorical averment of the witnesses that they are not in a position to say by whom exhibited documents were prepared but even then the exhibited papers were relied upon by the Trial Court; merely saying that when these

¶50

¶51

papers were being reconstructed, no objection was made by the defence, whereas the fact remains that while documents/papers were being exhibited, serious objection was raised by defence counsel which is apparent by perusal of oral evidence of the witnesses. These facts have also been asserted in their statements under Section 313 Cr.P.C. It was further argued by learned Counsel for the appellant that prior to committal, copies of relevant documents viz statement under Section 161 and other relevant documents were never provided to the accused and therefore, they failed to controvert the witnesses during trial and this major defect of the prosecution, affects the principle of just and fair trial rendering the entire prosecution case under shadow of doubt, besides causing prejudice and thus, the appellants are entitled for acquittal giving benefit of doubt.

¶52

Per contra, learned AGA and Sri Anil Kumar Kushwaha, learned Counsel for informant opposed the submissions made by learned Counsel for the appellants; supported the impugned judgment and order by saying that the learned Trial Judge has passed a detail and reasoned order believing the testimony of prosecution witnesses, there is no illegality or infirmity and thus, the appeal is liable to be dismissed.

¶53

P.W.1 Shiv Prasad scribe of the first information report has stated that on 16.2.1992, an altercation took place between Moti Lal and Pitai Kumhar; his son Hira Lal and Awadhesh brought Moti Lal home. Then about 20 minutes later, Bhola having Lathi, Prakash armed with DBBL gun and Ravi Karan armed with Rifle were seen going towards the house of Moti Lal; they were exhorting “ bldh xqUMbZ c< xbZ gS] ;g vius vknfe;ks dks Hkh lrkus yxk gS bls tku ls ekj nsxsA ” He followed them; the above accused reached at the door of Moti Lal, upon which Moti Lal told that why they were

¶54

¶55

abusing and exhorting; hearing noise, the wife of Moti Lal Sarla, his daughter Chiya, wife of Babu Lal-Phulmati and his son Suresh and Awadhesh arrived there. Bhola exhorted to kill Moti Lal on which, accused Ravi Karan and Prakash started firing; his son Suresh received injuries on his chest, his sister-in-law Sarla received injuries in her thigh, Chiya and wife of Babu Lal namely Phulmati received pellet injuries and Moti Lal received injuries in the stomach and leg. The accused fled away from the spot after committing the offence. In examination-in-chief, this witness stated that Moti Lal fell down and when he was rescuing/lifting Moti Lal, the S.P. Guru Darshan Singh and police personal came and took Moti Lal to Dariyapur police outpost; his sister-in-law Sarla was also with them. From Dariyapur, they went to Vijaipur police outpost where he wrote the first information report. His brother Babu Lal took Moti Lal and Sarla both injured to the District Hospital, Fatehpur. Other injured were examined on the next day at Vijaipur hospital. He further stated that Moti Lal expired on 16.2.1992 while he was in the way to Dariyapur and he has given written report on the same day at 9.00 P.M. in the night at police outpost Vijaipur; from Vijaipur he never went to police station, Kishunpur. Reconstructed first information report ( Ex. Ka-1) was read over to him which he accepted to have given at the police outpost. This exhibit was objected by the defence Counsel, but the objection was rejected by the Trial Judge. In the statement in Court, he explained that Moti Lal received injuries in his stomach and leg. In chief, this witness has stated that police never interrogated him at any point of time during investigation, though in his statement he stated that he reached on the spot just from behind the accused persons, but this fact has not been described in the first information report. In his cross examination, he stated that he was just behind 10 steps from

¶56

¶57

the accused and when he was watching the incident, he was not stand still but was moving 2-3 steps here and there. This statement of the witness that he saw the entire incident from behind the accused is not corroborated by the site plan available on record where place ‘A’ has been shown as the place from where Suresh, Shiv Prasad, Phulmati came out and saw the occurrence and they sustained injuries. It is admitted that in the incident, Shiv Prasad has ever received any injury. His presence on the spot becomes doubtful according to the site plan and the version of first information report, he has shown himself to be present on the spot behind the accused. He stated that he cannot tell how many shots were fired and which shot was fired by which of the accused as the firing was being made at some intervals; when firing was being made, he was behind 2-3 steps, his daughter was at distance of 4 steps south to him, wife was towards west at a distance of 2-3 steps. Phulmati was at a distance of about 10 steps towards western side of deceased-Moti Lal and Suresh was 5 steps towards south west from deceased. They received injuries. The mode and manner of assault, as has been stated by P.W.1, is not only contrary to the statement of P.W.2 an injured witness, but is also not supported by the site plan available on record. Even the presence of other person as stated by this witness is contrary to the statements of other witnesses, whereas this witness stated that on shouting of Bhola, wife of Moti Lal, his daughter Chiya, Phulmati(wife of Babu Lal) and Suresh reached on the spot.

¶58

P.W.2 stated that she and her husband were sitting on a bench outside the house, whereas P.W.8-Chiya injured stated that she was playing in front of house; her father was sitting with Suresh and was discussing something when the accused came and exhorted. How all injured and P.W.1 reached on the spot, in the

¶59

¶60

statements of P.W. 1, P.W.2, P.W.8 are not corroborating each other so as to place reliance on their statements. Though, it has been asserted by P.W.1 and P.W.2 that pellets hits wall and window of Babu Lal, but during investigation, neither any pellet has been recovered by the Investigating Officer nor any such recovery memo was prepared during investigation. P.W.1 in his cross examination, has stated that accused Prakash and Ravi Karan were firing from one place. He did not remember that in which leg and where Moti Lal-deceased received injuries; he cannot say that whose fire hit the leg of Moti Lal, though he admitted that after this injury in the leg, Moti Lal fell down. He cannot say that whether it was first or the second fire, but it might be third or fourth fire, but which shot hit, he did not count. He stated that daughter Chiya and sister]-inlaw started running towards the house of Moti Lal. He stated that although he is a license holder of 12 gun, but he is not in a position to explain the difference of shots between rifle and 12 bore gun. The injury of stomach sustained by the deceased, has not been explained by any of the witnesses in their statements.

¶61

P.W.2- Sarla in her chief stated same version in support of the first information report and stated that in the said occurrence of firing made by Ravi Karan and Prakash, her husband, she herself, daughter Chiya and Phulmati received injuries, whereas P.W.1 stated that first information report was written by him at Vijaipur police outpost, but this witness in her chief states that his brotherin-law Shiv Prasad wrote this paper at home and went to Police Station Kishunpur, which is totally contrary to the statement of P.W.1. She stated that her husband Moti Lal died before reaching Fatehpur, Hospital. She stated that at the time of occurrence, she along with her husband were sitting on a Bench facing south; when the accused were firing, she saw Shiv Prasad, Chiya and Phulmati

¶62

¶63

were also there. She did not count number of shots, but 7-8 shots were fired. She had seen gun and rifle from before the incident. She stated that without watching, only on sound, she can identify whether shots were fired from gun or by rifle. She categorically stated that first fire was made by gun which missed the target and she and her husband did not run towards house but moved 10 steps towards field and she was 2-3 steps behind her husband. Second shot was fired by rifle which also did not hit any one; none tried to escape even after said firing; Chiya, Phulmati and Suresh also did not run away; the first and second shot did not hit any one and pellets entered in the wall and window of Babu Lal, but third fire of rifle hit the leg of her husband,she was 4 steps towards north from the place where her husband was standing. This fact is not corroborated by the evidence available on record and also by the site plan. The third fire was made by rifle which hit right leg of her husband and that time, she was one step away from her husband. Even after receiving injury, neither her husband fell down nor he sat, but was still in standing position. She stated that fourth fire by gun hit her but what injury was sustained by her, has not been explained in the entire testimony and not the husband and at that time, daughter Chiya was towards west, Phulmati was towards north and Suresh was towards southern side. She stated that the shot which hit her was made from four furlongs from south eastern side. On query made by the Court, she stated that one furlong is equal to one hand and if it is so, injuries shown in the injury report (Ex.Ka-7) is not corroborated. She stated that fifth shot was fired by Prakash from gun which hit Suresh and Phulmati and firing was made from same place from where 4^th shot was made; she further stated that sixth shot was fired by Prakash from gun which hit Chiya. P.W.2 stated that P.W.1-informant accompanied her from

¶64

¶65

village to Fatehpur all time, whereas P.W.1 has stated that he sent Moti Lal and her sister-in-law(Sarla) along with his brother Babu Lal to District Hospital, Fatehpur and he went to police out post to lodge report. The mode and manner stated by this witness and the injuries received during commission of offence, is not corroborated by medical evidence available on record. This witness also stated that she and other injured witnesses went to the police station, which creates doubt and her statement badly damages the prosecution version.

¶66

It is significant to note that there is no inquest report available on record. P.W.2 has stated that inquest was prepared at 7.00 P.M. on the day of occurrence where police Inspector was present and her jeth Shiv Prasad was also present there. It is also strengthen by the statement of P.W.1 Shiv Prasad that Moti Lal expired on 16.2.1992 while in the way to police outpost, Dariyapur.

¶67

P.W.8-Chiya in chief has stated that at the time of occurrence, she, her father, mother Sarla Devi, Suresh and Phulmati were present on the spot and Ravi Karan armed with rifle, Prakash armed with DBBL gun and Bhola armed with Lathi came and they assaulted her father, mother,Phulmati, Suresh and Chiya by firing from their weapons and her father after receiving injuries fell down They went to Vijaipur hospital, but doctor was not available there, so her father Shiv Prasad and Sarla went to Sadar Hospital. They were examined on the next day at Vijaipur Hospital. Her father expired on the next day in Sadar Hospital, Fatehpur due to injuries caused by the accused. The Investigating Officer of the case recorded her statement during investigation. The statement of this witness that her father expired next day in Sadar Hospital, Fatehpur is contrary to the statement of P.W.2 (Sarla Devi), where she stated that they reached Sadar Hospital, Fatehpur at about

¶68

¶69

12.00 in the night and when reached to the hospital, her husband expired, the fact remains that at one place she stated that her husband expired at 7.00 PM on the same day and inquest was prepared by the Investigating Officer. Exactly when Moti Laldeceased expired is not clearly stated by any of the witnesses, hence the time of death of deceased is not ascertainable from the statement of so called eye witnesses, more so in the absence of inquest report on record. In her examination in chief, she stated that she, her mother,father, Suresh and Phulmati were present in front of house just prior to the occurrence, whereas in cross examination, she has stated that when assailants came in front of her house, her mother-Sarla was in the house and she was playing outside the door; her father and Suresh were there. She has stated that she cannot say that how many fires were made on her father; she cannot say how many shots were fired. However, this witness has admitted the fact that the Investigating Officer has recorded her statement and the statements of Phulmati and Suresh also, but she has not answered any question properly and deposed that she has forgotten every thing regarding incident. On careful scrutiny of the testimony of this witness, we are of the opinion that she is not wholly reliable and trustworthy. The statements of these witnesses comes within the purview of partly reliable and partly not reliable, hence in totality, it would not be safe to record conviction on the testimonies of these witnesses.

¶70

The mode of assessing reliability of a witness has been explained time and again by the Apex Court that certain factors are to be kept in mind while assessing the testimony of a witness. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the

¶71

¶72

oral testimony into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable, nor wholly unreliable. In the case of 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 the cases where the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness or as the case may be.

¶73

The material discrepancies are those which are not normal, and not expected of a normal person. While appreciating the testimony of a witness, approach of the Court must be as to whether the evidence of witness after perusal appears to have line of credibility and once that impression is formed, it will be necessary for the Court to scrutinise the testimony more particularly keeping in consideration the deficiencies, drawbacks and infirmities pointed out in the evidence and to evaluate the same to arrive at a conclusion whether it is against general tenor or it is shaken so as to render it unworthy of belief. It is relevant to mention that other injured witnesses Suresh and Phulmati have not been examined by the prosecution.

¶74

P.W.3 Head Moharrir is formal witness who has executed chick FIR of the case., Though original chick has been lost, but he proved this document, which has been objected by the defence counsel. This witness has admitted the fact that original (Ex.Ka.3) is not before him nor available in the S.P. office, and he did not know who prepared (Ex.Ka.3); GD in respect to institution of case is not on record, hence he is not in a position to explain whether any chitthi majroobi was prepared or not. He stated that the case was investigated by SHO, R.C. Mishra. This witness has stated

¶75

¶76

that he has taken blood stained clothes of injured in his possession at the time of preparation of chick FIR, fard was prepared and after getting it sealed was kept in Malkhana, but no such memo of recovery is available on record, nor has been exhibited. Hence, reliability of this assertion is meaning less, specially when P.W.2 in her statement has stated that she wore blood stained sari having wholes of pellets for about 7-8 days and none had taken the same from her. Therefore, this witness also is not reliable and trustworthy.

¶77

P.W.4 Dr. Bharat Namdeo conducted autopsy of the body of deceased Moti Lal on 18.2.1992 at 3.30 P.M. From perusal of post mortem report it transpires that injuries caused to the deceased was of gun fire and not by rifle as pellets and wadding were found and thus, it is clear that his injuries would not have been caused by rifle. In his statement, the doctor has given vague reply by saying that the all four injuries on the body of deceased might have been caused minimum by two shots or maximum by four shots.

¶78

P.W.5 Dr. Devendra Kumar examined injured Phulmati, Chiya and Suresh brought by constable Brijraj Chaubey on 17.2.1992 at 4.25 PM and he has opined the injuries to be simple caused by fire arm. He has stated that he cannot tell about the distance from which the injuries were caused. He also stated that he cannot ascertain as to from which of the fire arm, these injuries were caused.

¶79

P.W.6 Ravi Chandra Mishra, Investigated the case and submitted charge sheet. He stated that as there is no prosecution documents, he is unable to described about the steps taken during investigation. He disown his signature on the photo copy of site plan available on record and also stated that he did not remember

¶80

¶81

who has put signature on it. In cross examination, he stated that what the witnesses had stated, he cannot tell in absence of case diary. This witness was recalled and this time, he stated to have investigated case crime no. 30 of 1992 under Section 302,307,504 IPC, P.S. Kishunpur and submitted charge sheet against accused Ravi Karan, Prakash and Bhola, but today, neither original nor photo copy of the charge sheet is available before him. Although, this witness has admitted to have recorded statements of witnesses during investigation, but no statement recorded under Section 161 Cr.P.C is available on record. In this reference, argument of learned Counsel for the appellants that prior to committal, copies of the relevant documents such as statements under Section 161 Cr.P.C. were not provided to the accused, hence, they failed to controvert the witnesses during trial under Section 145 of Indian Evidence Act, has substance.

¶82

P.W.7 Subhash Chandra Singh- Phamacist stated in his statement that medico legal register dated 1.1.92 to 31.3.1992 is with me in which injuries received by Sarla Devi is noted who was examined on 17.2.1992 at 1.10 A.M. This witness has stated that at the time of examination, he was not present and thus, he cannot tell who had prepared it.

¶83

In the present case, although the accused were charged under Sections 302/307, but both the accused are convicted with the aid of Section 34 IPC without assigning any reason and no stress has been laid down by learned AGA on the point.

¶84

On the aforesaid facts and circumstances of the case, we gave our thoughtful consideration to remand the case back for fresh trial but remanding back case to the Trial Judge at this stage, will never be proper and justified after lapse of 27 years for the

¶85

¶86

reason that reconstruction of those documents/records is impossible now and thus, initiation of fresh trial today will never meet the ends of justice.

¶87

Non supply of copies of documents such as statement under section 161 Cr.P.C, panchayatnama and other relevant record to the accused, in the case in hand has caused serious prejudice during trial to contradict the witnesses under Section 145 of Evidence Act. It will not be out of reference to note that an omission to comply with section 207 Cr. P.C. read with section 238 Cr. P.C. is bound to cause a serious prejudice to the accused. It is obligatory for the Trial Magistrate to ensure supply of copies of the relevant documents upon which the prosecution intends to rely upon during trial. The Hon’ble Apex Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect: “21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given

¶88

¶89

situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced. (This was observed in Manjeet Singh Khera Versus State of Maharashtra,SPECIAL LEAVE PETITION (CRIMINAL) NO.5897 OF 2013. Also see V.K. Sasikala v. State Represented by Superintendent of Police (2012) 9 SCC 771).

¶90

In para-33 of the impugned judgment, although injuries sustained by Sarla Devi is mentioned, but the facts remain that wrongly, injuries sustained by Phulmati has been mentioned in the name of Sarla Devi.

¶91

The accused is entitled to get copy of police report and other documents and in this respect, provisions of Section 207 are necessary to be quoted here in below;

¶92

Section 207 in The Code Of Criminal Procedure, 1973

¶93

207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without

¶94

¶95

delay furnish to the accused, free of cost, a copy of each of the following:-

¶96

(i) the police report;

¶97

(ii) the first information report recorded under section 154;

¶98

(iii) the statements record.ed under subsection (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;

¶99

(iv) the confessions and statements, if any, recorded under section 164;

¶100

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

¶101

Section 208 in The Code Of Criminal Procedure, 1973

¶102

208. Supply of copies of statements and documents to accused in other cases triable by Court of Session. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the

¶103

¶104

accused, free of cost, a copy of each of the following:-

¶105

(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;

¶106

(ii) the statements and confessions, if any, recorded under section 161 or section 164;

¶107

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

¶108

Section 238 of Cr.P.C. unequivocally provided that a solemn duty is cast on the Magistrate to satisfy himself that he has strictly complied with the provisions of Section 207 Cr.P.C. viz. furnishing the accused, free of cost, copies of documents as prayed for by him and referred to in that section itself without delay and such satisfaction has to be invariably judicial satisfaction. An omission to comply with the mandatory provision of law as enshrined in Section 207 Cr.P.C. read with Section 238 Cr.P.C is bound to cause serious prejudice to the accused and such a situation may even vitiate the criminal trial. The supply of documents and statements prepared at the investigating stage as mandated under Section 207 Cr.P.C. cannot be treated a mere superfluity or empty formality. It is highly improper and irregular on the part of the Court to shirk its responsibility in this regard and put the accused at the mercy of prosecution by merely observing inter alia that it is the duty of prosecution ‘to follow the rules of natural justice’. Thus, it can safely be held that accused could not be refused to supply copies of documents even at the stage of trial, if relied upon by the

¶109

¶110

prosecution per statutory provisions of Section 207 Cr.P.C. and also as per the provisions of Section 238 Cr.P.C. If we go carefully through the ratio laid down in V.K. Sasikala Vs. State (2012) 9 SCC 771, we get clear idea about the solemn duty of the Court to supply copies of documents to the accused. It is the duty of the Court to supply to the accused, copies of the police report, the first information report recorded under Section 154 Cr.P.C., the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other documents or relevant extract thereof, which is forwarded to the Magistrate along with police report.

¶111

To sum up the matter, after careful scrutiny of the oral testimony of the witnesses and the records available, we find following discrepancies;

¶112

i) No motive of the occurrence has been placed by any of the witness to inspire confidence.

¶113

ii) No x-ray report or supplementary report, inquest report is available on record.

¶114

iii) P.W.1-informant in his statement deposed that deceasedMoti Lal died in the way while going to Dariyapur and he reported the matter at Police outpost Vijaipur, while the FIR was lodged at Police Station, Kishunpur district, Fatehpur.

¶115

iv) P.W.1 disown his statement under Section 161 Cr.P.C. and stated that the police did not inquire anything from him.

¶116

v) P.W.2-injured Sarla Devi, although tried to describe the mode and manner of the incident together the injuries sustained during course of commission of offence, but her statement is not corroborated. Moreover, she stated that the FIR was written at home.

¶117

vi) In the site plan, house of Babu Lal is shown towards north. How this site plan was prepared and later constructed, itself is doubtful as no mode of reconstruction has been explained by any of the prosecution witnesses.

¶118

¶119

vii) P.W.1 stated to have seen the occurrence from behind the accused, whereas, in the map/site plan Suresh, Shiv Prasad and Phulmati all have been shown at place ‘A’, which is towards north from the place of said firing and witnessing the occurrence from behind the accused is not corroborated from the perusal of available map as P.W.1 states.

¶120

xiii) According to FIR version, the informant stated that he sent the injured to hospital along with village people and then he came to the police station, and in chief, he stated that injured deceased-Moti Lal and injured-Sarla were with him while injured-Chiya was at home…………....

¶121

ix ) The injuries found on the body of injured as asserted by P.W.2 are not corroborated from medical evidence.

¶122

x) P.W.2 has not properly explained the mode and manner of assault/ occurrence which creates serious doubt about the prosecution version.

¶123

xi) P.W.1 is not reliable and trustworthy. P.W.8 is also totally unreliable, as at the time of occurrence, she was aged about 9 years.

¶124

xii) Non providing copies of documents to the accused, has caused serious prejudice to them and violates the principle of fair trial.

¶125

In view of discussion made above, taking cumulative effect of the evidence, as discussed above, we allow this appeal and set aside the impugned judgment and order dated 15.4.2015 passed by learned Trial Judge in S.T. No. 1185 of 2001 ( State Vs. Ravi Karan and others). The appellants Prakash is in jail. He be set at liberty forthwith. The appellant Ravi Karan is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, the appellants are directed to make compliance of the provisions of Section 437-A, Cr.P.C. in the concerned Court below.

¶126

¶127

Registry is directed to transmit the original record to the concerned Trial Court forthwith for compliance of this judgment. Trial Court is obliged to intimate compliance to this Court within a month.

¶128

Before parting with the case, we feel it necessary, in the ends of justice to obtain a report from the District Judge, Fatehpur informing this Court that whether or not a non judicial enquiry as has time and again been circulated by the High Court in relation to loss of judicial records, conducted and if so, its result. It is also directed that after receipt of report from the District Judge, Fatehpur, the Registrar General of this Court shall place the matter before Hon’ble the Administrative Judge concerned for appropriate orders, in case of non compliance of the various Circulars of this Court regarding loss of record.

¶129

( Umesh Kumar, J) [ R.S. R. (Maurya),J]

¶130

Dated: 17.08.2019 Shahid

Prakash v. State of U.P.

Case brief

What is this about?

What did the court decide?

Prakash v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Om Prakash Patel Vs State of U.P. and 2 Others

Irshad and Another Vs State of U.P. and 2 Others

Rajnesh @ Billu @ Rajnish Kumar and 2 Others Vs State of U.P. and 2 Others

Manoj Vs State of U.P.

Bijender Singh and Others Vs State of U.P.

Kamre Alam @ Kamaryab Vs State of U.P.