Dismissed¶79

Deepak Sharma v. State of U.P.

Allahabad HC7 Feb 2020CRLA/6607/2010

Case brief

AI extract

What is this about?

Murder conviction affirmed on circumstantial evidence despite all four eye-witnesses turning hostile; last-seen and motive evidence of deceased's parents accepted notwithstanding one-year delay in recording their statements; transfer of investigation to C.B.C.I.D. showed unfair local-police investigation; failure of accused to explain death treated as additional link; subsequent murder of material witness Rajendra Prasad relevant under Section 6 Evidence Act; offences under Sections 302/34 IPC and Section 25 Arms Act; appellants Deepak Sharma, Sushil Kumar, Kareem v. State of U.P.; Criminal Appeal Nos. 6607, 6302 and 5432 of 2010; dismissed on 07.02.2020.

What did the court decide?

No relief granted to the appellants; the conviction and sentences imposed by the Additional Sessions Judge, Court No. 8, Aligarh were left undisturbed.

Deepak Sharma Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2020)

What the court decided

AI extract

Outcome

No relief granted to the appellants; the conviction and sentences imposed by the Additional Sessions Judge, Court No. 8, Aligarh were left undisturbed.

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Issue for consideration

Whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubt. +1 more

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Court's answer

In view of the foregoing discussion, the Court was not inclined to interfere with the recorded conviction of the appellants or the sentences awarded to them.

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Ratio / Principle

Since the four eyewitnesses (P.W.1 to P.W.4) turned hostile, denied that their statements under Section 161 Cr.P.C. had been recorded, and the I.O. allegedly recording those statements was never confronted with their retraction, the Court discarded the prosecution case that the incident had taken place in their presence.

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Key takeaways

The evidence of P.W.6 and P.W.7 (deceased's parents) is not liable to be discarded merely on account of the more than one-year delay in recording their statements, for which they cannot be blamed.ratio¶74
The eventual transfer of the investigation from the local police to the C.B.C.I.D., followed by first recording of the parents' statements, was sufficiently indicative that the local police was not interested in investigating the matter fairly and acted with oblique motive.ratio¶74
Any lapse or irregularity committed during investigation inures to the benefit of the accused only if it is so material that it goes to the root of the prosecution case and renders it unreliable; the delay here did not have that effect.

Detailed headnote1 paragraphs

Criminal Appeal Nos. 6607, 6302 and 5432 of 2010 (Deepak Sharma, Sushil Kumar and Kareem v. State of U.P.) — appeals against convictions recorded by the Additional Sessions Judge, Court No. 8, Aligarh on 30.7.2010/2.8.2010 in S.T. Nos. 642 and 643 of 2003 (murder of Sushil Sharma on 17.12.2002) DISMISSED; convictions under Sections 302/34 IPC (and Section 25 Arms Act against Sushil Kumar) upheld. All four eye-witnesses (P.W.1 to P.W.4) turned hostile and denied that their Section 161 Cr.P.C. statements were ever recorded; since the I.O. was never confronted with their retraction, the ocular version was discarded. Conviction rested on the motive and last-seen evidence of the deceased's parents (P.W.6 Ramesh Chandra Sharma and P.W.7 Ramwati Sharma), whose statements were recorded by the C.B.C.I.D. more than a year after the incident; the delay was held not to discredit them as they could not be blamed for it, and the transfer of investigation from the local police to the C.B.C.I.D. showed the local police had not investigated fairly and acted with oblique motive. Investigative lapses benefit the accused only if they strike at the root of the prosecution case. Strained relations over Rita (motive), the taking away of the deceased on the pretext of urgent work, the appellants' failure to explain how he died (an additional link in the chain of circumstances), and their subsequent murder of the material witness Rajendra Prasad with conviction therefor (relevant under Section 6 of the Evidence Act) completed the chain. No interference with conviction or sentence; appeals dismissed (Order Date: 07.02.2020).

Reserved

Court No. 4

Case :- CRIMINAL APPEAL No. - 6607 of 2010 Appellant :- Deepak Sharma Respondent :- State of U.P. Counsel for Appellant :- G.P. Dikshit,Nasiruzzaman,Noor Mohammad,Rahul Gaur,Rajesh Kumar Dubey,Vishal Agarwal Counsel for Respondent :- Govt. Advocate,R.P.S. Chauhan

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With

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Case :- CRIMINAL APPEAL No. - 6302 of 2010 Appellant :- Sushil Kumar Respondent :- State of U.P. Counsel for Appellant :- Saurabh Gour,Anshika Agarwal,Noor Mohammad,Rajesh Kumar Dubey,Shishupal Sharma,Vishal Agarwal

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Counsel for Respondent :- Govt Advocate,R.P.S. Chauhan

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With

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Case :- CRIMINAL APPEAL No. - 5432 of 2010 Appellant :- Kareem Respondent :- State of U.P .

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Counsel for Appellant :- Hemendra Pratap Singh,Anshika Agarwal,Noor Mohammad,Rajesh Kumar Dubey,Tufail Hasan,V.S. Parmar,Vishal Agarwal

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Counsel for Respondent :- Govt. Advocate,R.P.S.Chauhan

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Hon’ble Bala Krishna Narayana, J.

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Hon'ble Prakash Padia, J.

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Heard Sri Noor Mohd., learned counsel appearing for the appellants, Smt. Manju Thakur, learned A. G. A.-I appearing for the State and Sri R. P. S. Chauhan, learned counsel for the complainant.

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These three appeals namely, Criminal Appeal No. 6607 of 2010, Criminal Appeal No. 6302 of 2010 and Criminal Appeal No. 5432 of 2010 have been preferred by the appellants Deepak Sharma, Sushil Kumar and Kareem respectively against the judgement dated 30.7.2010 and order dated 2.8.2010 passed by Additional Sessions Judge, Court No. 8, Aligarh in Sessions Trial No. 642 of 2003; State Versus Sushil Kumar and two others, arising out of Case Crime No. 545/02, under Sections- 302/34 I. P. C., P. S.-Delhi Gate, district-Aligarh and Sessions Trial No. 643 of 2003; State of U. P. Versus Sushil Kumar, arising out of Case Crime No. 546/02, under Section- 25 of Arms Act, P. S.-Delhi Gate, district-Aligarh whereby appellant Sushil Kumar was convicted and sentenced to imprisonment for life and a fine of Rs. 10,000/- under Section 302 I. P. C., one year simple imprisonment under Section 25 of Arms Act and in case of default in payment of fine, eighth months additional imprisonment whereas appellant Deepak Sharma and Kareem were convicted and sentenced to imprisonment for life and a fine of Rs. 5,000/- each and in case of default in payment of fine, four months additional imprisonment under Section 302 r/w 34 I. P. C. All the sentences were directed to run concurrently.

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Briefly stated, the facts of the case are that P. W. 1 informant Sher Mohd. gave a written report Ext. Ka 1 at P. S.-Delhi Gate, Aligarh at 17.25 hrs. alleging therein that on 17.12.2002 at about 3.30 P. M., P. W. 2 Fateh Mohd., s/o Jahoora and P. W. 3 Rafeeq, and P. W. 4 Amar Singh, S/o Chandra Pal Singh of village of P. W. 1 Sher Mohd. and large number of other persons were working in their fields and lot of people were moving on the road. He saw four persons walking towards Amarpur Kodla from the side of Talashpur culvert. As soon as the aforesaid four persons came near the field of P. W. 1 informant Sher Mohd., the person who was walking

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behind, shot the person walking in front of him. On hearing the sound of gun shot, the person who had received firearm injury, ran towards the west on which the person who had fired exhorted his companions to catch him so that, he may not be left alive and fired the second shot while his two companions caught hold of the person who had received gun shot injuries in the field of Deewan Singh and pinned him to the ground, on which the person having firearm, fired several shots at the person who had fallen on the ground and thereafter they tried to flee from the place of occurrence but one of them who was armed with country made pistol was caught by the informant and the other witnesses after giving him short chase and beating him. He disclosed his name as Sushil Kumar Sharma, S/o Laddoo Gopal Sharma, R/o Bhoorapir Gali No. 3, Hathras Kotwali, Hathras. One country made pistol of 315 bore, one live and one empty cartridge of 315 bore stuck in the barrel of the pistol were recovered from him. The remaining two miscreants were also caught. They disclosed their names as Deepak Sharma, S/o Dhaniram Sharma, R/o Bhoorapir Gali No. 3, P. S.-Hathras Kotwali, Hathras and Kareem S/o Waheed, R/o Bhujpura, P. S.- Kotwali, Aligarh. Sushil Kumar told that Deepak Sharma and Kareem were his friends and the person whom he had shot, was Sushil Sharma, s/o Ramesh Chandra Sharma, R/o waterworks colony, P. S.-Hathras Gate was also his friend but who had solemnized marriage about one year before with his niece Rita Sharma who was living in New Delhi in Arya Samaj Temple and on receiving the aforesaid information, he and his other two friends planned to commit the murder of Sushil Sharma. All the three accused along with country made pistol and empty cartridges were taken by P. W. 1 informant Sher Mohd. to the police station, leaving behind the body of the deceased in the field, which was very crowded.

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On the basis of the written report Ext. Ka 1, Case Crime No. 545/02, under Section 302/34 I. P. C. and Case Crime No. 546/02, under Section- 25 of Arms Act against all the three appellants at P. S.- Delhi Gate, Aligarh. The chek F. I. R. and relevant G. D. entry, carbon copy whereof were brought on record and proved as Ext. Ka 17 and Ext. Ka 18, were prepared.

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After registration of the case, P. W. 8 S. I. Vivek Varshney reached the place of occurrence and under the instructions of P. W. 10 S. I. Rakesh Kumar Sharma, I. O. / S. O. recovered seven items from the body of the deceased Sushil Sharma namely, three rings, chain, bracelets, mobile phone and one wrist watch and prepared recovery memo of the aforesaid articles Ext. Ka 2. Thereafter, he conducted inquest on the body of the deceased and prepared the inquest report Ext. Ka 9 and other related documents namely challan lash Ext. Ka 3, letter addressed to R. I. Ext. Ka 4, letter addressed to C. M. O Ext. Ka 5 व and Ka 6, photo lash Ext. Ka 7 and sample seal Ext. Ka 8 with which he sealed the dead body and dispatched the same for postmortem examination through P. W. 5 Constable Munesh Kumar and Constable Ghahshyam Singh.

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The postmortem on the body of the deceased Sushil Sharma was conducted by P. W. 12 Dr. A. K. Gupta at about 3.00 P. M. in Malkhan Singh Hospital who also prepared his postmortem report Ext. Ka 19. He noted following ante mortem injuries on the person of Sushil Sharma :-

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1) Firearm wound of entry 2.2 cm x skull cavity deep over rt. side head 2 cm above, gunpowder present around the wound;

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2) Firearm wound of exit 3 cm x 3 cm x skull cavity deep communicating injury no. 1 on lt. side head;

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3) Firearm wound of entry 2 cm x 2 cm x abd cavity deep over midline at the level of vertebrae & a bullet (metallic) found in subcutaneous tissue of anterior abd midline, 2 cm above umbilicus sealed in envelope & handed over to constable;

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4) Firearm wound of entry 2 x 2 cm x muscle deep on back of lt. saureal region & a metallic bullet found in paraspinal muscle on lt.

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side, sealed & handed over to constable.

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Upon internal examination, the right parietal bone of the deceased was found to be fractured while the spleen was torn. The deceased according to P. W. 12 Dr. A. K. Gupta had died about twenty-four hours before the postmortem was conducted.

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P. W. 10 S. I. Ramesh Kumar Sharma, who was the first I. O. of the case during the course of investigation, inspected the place of occurrence and prepared the site plan Ext. Ka 10. He also collected empty cartridge, plain and blood stained earth from the place of occurrence and prepared the recovery memos of the aforesaid articles as Ext. Ka 11 and Ext. 12 respectively.

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After completing the investigation, he filed charge-sheet Ext. Ka 13 against all the three appellants under Section 302 I. P. C. while a separate charge-sheet Ext. Ka 16 was filed by him against the appellant Sushil Kumar under Section 25 of Arms Act. P. W. 10 S. I. Rakesh Kumar Sharma also prepared the recovery memo of the country made pistol of 315 bore, one live cartridge and one empty cartridge of same bore Ext. Ka 14 and also obtained sanction of the District Magistrate for prosecuting the appellant Sushil Kumar under Section 25 of Arms Act on 1.8.2003 Ext. Ka 15.

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Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, both the cases were committed for trial to the Sessions Court where Case Crime No. 545/02 was registered as S. T. No. 642 of 2003, while Case Crime No. 546/02 was registered as S. T. No. 643 of 2003. Both the trials were made over from the Court of Sessions to the Court of Additional Sessions Judge, Court No. 8, Aligarh who on the basis of the material on record and after hearing the prosecution as well as the defence on the point of charge, framed charge under Sections-302/34 I. P. C. against all the three appellants while a

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separate charge under Section 25 of Arms Act was framed against the appellant Sushil Kumar. The accused-appellants abjured the charges and claimed trial.

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The prosecution in order to prove its case against the appellants examined as many as twelve witnesses, out of whom P. W. 1 informant Sher Mohd., P. W. 2 Fateh Mohd., P. W. 3 Rafeeq, P. W. 4 Amar Singh, P. W. 5 Constable Munesh Kumar, P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma were examined as witnesses of facts while P. W. 8 S. I. Vivek Varshney, P. W. 9 S. K. Singh Rana, Senior Inspector, C. B. C. I. D., Agra, P. W. 10 S. I. Ramesh Kumar Sharma, P. W. 11 Constable Clerk Virendra Singh and P. W. 12 Dr. A. K. Gupta were produced as formal witnesses.

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The accused-appellants in their examination under Section 313 Cr. P. C. denied the prosecution case as false and alleged false implication due to previous enmity.

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The Additional Sessions Judge, Court No. 8, Aligarh after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted all the three appellants and awarded aforesaid sentences to them.

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Hence, these appeals.

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Learned counsel for the appellants has submitted that all the four eye-witnesses of the incident having failed to support the prosecution case and declared hostile, the recorded conviction of the appellants on the basis of the highly interested testimony of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma who gave last seen evidence against the appellants and who were introduced as witnesses after more than one year of the incident, is per se illegal and unsustainable in the eye of law. Neither the recorded conviction of the appellants nor the sentences awarded to

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them can be sustained and are liable to be set aside.

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Smt. Manju Thakur, learned A. G. A.-I appearing for the State has submitted that it is proved from the evidence on record that the statement of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma were deliberately not recorded by local police during investigation despite P. W. 5 Constable Munesh Kumar having moved an application before the S. P. in this regard and it was only when the investigation was transferred to C. B. C. I. D. and that the statements of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma were recorded. She next submitted that the evidence of P. W. 6 and P. W. 7 with regard to the motive and last seen evidence has throughout remained consistent and clinching and coupled with the fact that the appellants failed to come up with any explanation with regard to the circumstances under which the deceased had been murdered after he was last seen alive with them, the chain of circumstances pointing at the guilt of the appellants, stands established. No interference either with the recorded conviction of the appellants or the sentences awarded to them is warranted.

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The only question which arises for our consideration is whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts or not ?

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Before proceeding to evaluate the testimonies of the witnesses of fact examined by the prosecution during the trial, we first propose to have a look at the evidence of formal witnesses.

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P. W. 8 S. I. Vivek Varshney who was posted at the concerned police station on the date of the incident in his evidence recorded during the trial deposed that on the instruction of S. O., he recovered seven articles from the possession of the deceased's body and prepared recovery memo of the aforesaid articles. He proved the same as Ext. Ka 2. He also deposed that after holding

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inquest on the body of the deceased, he had prepared the inquest report and other related documents, which he proved as Ext. Ka 3 to Ext. Ka 9.

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P. W. 9 S. K. Singh Rana, Senior Inspector, C. B. C. I. D., Agra in his evidence recorded during the trial deposed that he undertook the investigation of the case on 30.01.2004 and recorded the statements of P. W. 6 Ramesh Chandra Sharma, deceased's father and P. W. 7 Ramwati Sharma, deceased's mother on 10.3.2004. In his cross examination at page 48 of the paper-book, he stated that no order was passed by the administration on the application of the deceased P. W. 6 Ramesh Chandra Sharma, the former I. O. had not recorded the statements of Ramesh Chandra Sharma and his wife. He denied the suggestion given to him that he had deliberately introduced Ramesh Chandra Sharma and his wife as witnesses to create the last seen evidence against the appellants.

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P. W. 10 S. I. Rakesh Kumar Sharma who was the first Investigating Officer of the case, in his evidence recorded during the trial deposed that on 17.12.2002, he was posted at P. S.- Delhi Gate and he had taken over the investigation of the case himself. He narrated the various steps taken by him during investigation. He proved the site plan of the occurrence, recovery memos of empty cartridge, plain and blood stained earth recovered from the place of incident as Exts. Ka 10, 11 and 12. He proved the charge-sheet filed by him under Section 302 I. P. C. as Ext. Ka 13 and the recovery memo of firearm allegedly used in committing the murder of the deceased as Ext. Ka 14.

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He also stated that he had investigated Case Crime No. 546/02 under Section 25 of Arms Act and had obtained the permission from the District Magistrate Ext. Ka 15 to prosecute appellant Sushil Kumar under Section 25 of Arms Act and file

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charge-sheet against him Ext. Ka 16.

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P. W. 11 Constable Clerk Virendra Singh stated that he was posted as senior constable at P. S.- Delhi Gate, Aligarh on 7.12.2002. On that date he had prepared the chek F. I. R. Ext. Ka 15 on the basis of the written report given at the police station by P. W. 1 informant Sher Mohd. and had recorded the case in G. D. at serial no. 35, time 15.25 hrs on the same day. He proved the carbon copy of the G. D. as Ext. Ka 18 and the recovery memo of country made pistol and one live cartridge of 315 bore which was deposited in the police station by Head Moharir Netrapal Singh as Ext. Ka 14. He also proved the sealed bundles from which the country made pistol was taken out and produced before the Court as material Ext. 1. The other articles which were taken out from the same bundle were marked as material Exts. 2 to 8. The country made pistol of 315 bore which was taken out from the same bundle was marked and proved as material Ext. 9.

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P. W. 12 Dr. A. K. Gupta who had conducted the postmortem on the body of the deceased in his evidence tendered during trial proved the postmortem report as Ext. Ka 19. According to him, the deceased had died one day before the day on which postmortem was conducted on his body. He also deposed that Sushil Sharma had died as a result of shock and haemorrhage caused due to ante mortem injuries. The ante mortem injuries which were noted by him on the body of the deceased have already been taken note of by us hereinabove.

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Thus, from the evidence of the formal witnesses, it is established that the deceased had died as a result of the firearm injuries received by him in the incident which had taken place on 17.12.2002 at about 3.30 P. M.

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The next question which arises for our consideration is whether from the evidence of the seven witnesses of facts

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produced by the prosecution during trial, the complicity of the appellants in committing the murder of the deceased stands proved beyond all reasonable doubts or not ?

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Out of seven witnesses of facts examined by prosecution although P. W. 1 informant Sher Mohd. admitted his thumb impression on the written report of the incident Ext. Ka 1 but he along with P. W. 2 Fateh Mohd., P. W. 3 Rafeeq and P. W. 4 Amar Singh failed to support the prosecution case during trial and were declared hostile. On being confronted with their statements recorded under Section 161 Cr. P. C. in which they had supported the prosecution case during their cross examination by D. G. C. (Criminal), all the aforesaid four prosecution witnesses denied that the I. O. of the case had recorded their statement during investigation.

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Strangely, the I. O. who had allegedly recorded the statements of P. W. 1 informant Sher Mohd., P. W. 2 Fateh Mohd., P. W. 3 Rafeeq and P. W. 4 Amar Singh under Section 161 Cr. P. C. was never confronted with the facts stated by P. W. 1 informant Sher Mohd., P. W. 2 Fateh Mohd., P. W. 3 Rafeeq and P. W. 4 Amar Singh in their evidence recorded during trial.

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Thus, in our opinion, the prosecution having failed to confront or bring to the notice of the I. O. who had allegedly recorded the statement of P. W. 1 informant Sher Mohd., P. W. 2 Fateh Mohd., P. W. 3 Rafeeq and P. W. 4 Amar Singh under Section 161 Cr. P. C., we have no option but to discard the prosecution case that the incident had taken place in their presence.

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We are now left only with the testimony of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Smt. Ramwati Sharma, father and mother of the deceased Sushil Sharma. They are admittedly not the eyewitnesses of the occurrence. They have only given last seen evidence against the accused. P. W. 6 Ramesh Chandra

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deposed before the trial court that all the three appellants were very friendly with his son, Sushil Sharma and used to visit his house frequently. The appellant Sushil’s niece, Rita Sharma was residing in Shahdara, Delhi. A proposal of marriage of his son was made from Rita Sharma which he had declined as he had heard that Rita Sharma used to visit the house of appellant Sushil. His son deceased Sushil Sharma also used to go to the house of appellant Sushil Kumar. On account of Rita Sharma, animosity had developed between appellant Sushil Kumar and his son deceased Sushil Sharma and the appellant Sushil Kumar had come to his house and had threatened his son with dire consequences, in case he did not leave Rita. He did not take the aforesaid threats very seriously and dismissed it as a fight amongst the children. On 17.1.2.2002 at about 9.45 A. M. appellants Sushil Kumar, Deepak Sharma and Kareem of whom, Sushil Kumar and Kareem were present in the Court and were known to him previously, had come to his house. At that time apart from him, his wife Ramwati and his son Rajendra Sharma and his deceased son Sushil Sharma were present in the house. The appellants Sushil Kumar, Kareem and Deepak Sharma took away his deceased son Sushil Sharma with them from his house on the pretext of some urgent work. On the same day at about 5.00 P. M., a constable cane to his house and told him that his son had been shot dead near village- Talashpur and the appellants had been caught on the spot. Upon enquiry, made by him from S. P. City, he learnt that the incident had taken place within the territorial jurisdiction of P. S.-Delhi Gate. Hence, he went to P. S.- Delhi Gate, where he found three appellants in the lockup and came to know that the body had been sent to mortuary for the postmortem. The appellants did not make any inquiry from him about the incident.

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In his cross-examination, P. W. 6 Ramesh Chandra Sharma

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stuck to his original version and maintained that none of the I. Os. had recorded his statement during investigation and for the first time, his statement was recorded by the C. B. C. I. D. about one year after the incident in his house.

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P. W. 7 Ramwati Sharma fully corroborated the evidence of P. W. 6 Ramesh Chandra Sharma. She in her examination-in-chief however narrated a very material fact that “chaar paanch maah poorva inhi teeno ne mere bade putra Rajendra Prasad ka katal kar diya tha kyuki wah mritak sushil ke hatyaa ke case mein gawaah tha.”

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Thus, upon the perusal of the evidence of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma, it transpires that from the side of Rita Sharma, a proposal of her marriage with the deceased Sushil Sharma was made to P. W. 6 and P. W. 7, the parents of the deceased which they had rejected as it had been in their knowledge that Rita, niece of the appellant Sushil Kumar was residing in New Delhi and appellant Sushil Kumar used to visit her frequently. Appellant Sushil Kumar had warned the deceased with dire consequences in case, he refused to leave Rita. On account of Rita, relations between their son Sushil Sharma and appellant Sushil Kumar became strained and appellant Sushil Kumar had come to his house and threatened him with dire consequences in case, he did not leave Rita but they did not attach any importance to his threat as they thought that it was a fight between the children. On 17.12.2002 at about 9.45 A. M., all the three appellants had come to their house and had taken their son Sushil Sharma with them on the pretext of some urgent work.

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The evidence of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma has been castigated by learned counsel for the appellants mainly on the ground that the same saw the light of the day after more than one year of the incident and on account of the

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inordinate delay in recording their statements, no reliance could be placed on their evidence for the purpose of fastening the guilt of murder of Sushil Sharma on them as all the four witnesses of fact had failed to support the prosecution case during the trial and were declared hostile and when the investigating agency suspected that P. W. 1 to P. W. 4 will not support the false and concocted story as spelt out in the F. I. R., they introduced P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma, the parents of the deceased as the witnesses of last seen. There is no doubt about the fact that there was delay of more than one year on the part of the I. O. in recording the statements of P. W. 6 and P. W. 7 during investigation but at the same time there has been throughout consistent and clinching evidence of P. W. 6 and P. W. 7 that at no point of time, any of the two Investigating Officers had either inquired from him about the occurrence or recorded their statements. It was only when the investigation of the case was transferred to C. B. C. I. D. that their statements were recorded for the first time.

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The evidence of P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma, in our opinion, is not liable to be discarded or the veracity of the facts stated by them disbelieved merely on account of delay in recording of their statements for which they cannot be blamed. The eventual transfer of the investigation from local police to C. B. C. I. D. and recording of the statements of P. W. 6 and P. W. 7 thereafter, is in itself sufficiently indicative of the fact that the local police was not at all interested in investigating the matter fairly, of course, with oblique motive. No explanation is coming forward as to why the statements of the appellants were not recorded.

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It is not the case of the prosecution that P. W. 6 Ramesh Chandra Sharma and P. W. 7 Ramwati Sharma are not available for recording of their statements. It is settled law that any lapse or

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irregularity committed during the investigation shall inure to the benefits of the accused unless it is so material that it goes to the route of the prosecution case rendering it un-reliable.

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Thus, in view of the above, we have no hesitation in holding that the relations between the deceased Sushil Sharma and appellant Sushil Kumar had become strained on account of Rita. Appellant Sushil Kumar had come to his house and threatened deceased Sushil Sharma with dire consequences in case, he did not leave Rita and all the three appellants had come to his house and had taken deceased Sushil Sharma with them on the pretext of some urgent work and thereafter had committed his murder. The fact what happened to the deceased after they had taken him with them was within the special knowledge of the appellants. They having failed to come up with any explanation whatsoever with regard to the circumstances under which deceased died, is an additional link in the chain of the circumstances pointing out at the guilt of the appellants. Their subsequent conduct in murdering the elder brother of the deceased, Rajendra Prasad, who was the material witness in this case and their subsequent conviction for his murder and being sentenced to life imprisonment is relevant under Section-6 of the Evidence Act. In view of the foregoing discussion, we are not inclined to interfere with the recorded conviction of the appellants or sentences awarded to them.

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These appeals lack merit and are accordingly dismissed. Order Date: 07.02.2020 HR

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment dated 30.7.2010 and order dated 2.8.2010 convicting Sushil Kumar (imprisonment for life and fine of Rs. 10,000/- under Section 302 IPC; one year simple imprisonment under Section 25 Arms Act) and Deepak Sharma and Kareem (imprisonment for life and fine of Rs. 5,000/- each under Section 302 r/w 34 IPC); all sentences directed to run concurrently.¶16
Additional Sessions Judge, Court No. 8, Aligarh · 30.7.2010 (judgment); 2.8.2010 (order)
Prior proceeding
Informant Sher Mohd. (P.W.1) lodged a written report Ext. Ka 1 at P.S.-Delhi Gate, Aligarh at 17.25 hrs regarding the shooting of Sushil Sharma on 17.12.2002 at about 3.30 P.M. and the catching of the three assailants.¶17
Prior proceeding
Case Crime No. 545/02 under Section 302/34 IPC and Case Crime No. 546/02 under Section 25 Arms Act registered against all three appellants at P.S.-Delhi Gate, Aligarh; chek FIR and G.D. entry prepared.¶21
Prior proceeding
Seven items recovered from the body of the deceased; inquest report and related documents prepared and body sent for postmortem, which disclosed firearm ante-mortem injuries and fracture of right parietal bone.¶22
Prior proceeding
First I.O. P.W.10 S.I. Rakesh Kumar Sharma prepared site plan, recovered empty cartridge and plain/blood-stained earth, and filed charge-sheet Ext. Ka 13 under Section 302 IPC against all three appellants.¶32
Prior proceeding
Separate charge-sheet Ext. Ka 16 filed against appellant Sushil Kumar under Section 25 Arms Act, with sanction of the District Magistrate (Ext. Ka 15) obtained on 1.8.2003.¶32
Prior proceeding
Both cases committed to the Court of Session and registered as S.T. No. 642 of 2003 and S.T. No. 643 of 2003, then made over to the Additional Sessions Judge, Court No. 8, Aligarh.¶33
Prior proceeding
Charges framed under Sections 302/34 IPC against all three appellants and separately under Section 25 Arms Act against Sushil Kumar; the accused-appellants abjured the charges and claimed trial.¶35
Prior proceeding
Prosecution examined twelve witnesses, including four witnesses of fact (P.W.1 to P.W.4) and the deceased's parents (P.W.6 and P.W.7).¶36
Prior proceeding
Accused-appellants examined under Section 313 Cr.P.C.; they denied the prosecution case and alleged false implication due to previous enmity.¶37
Prior proceeding
Trial court convicted all three appellants and awarded the aforesaid sentences, leading to these appeals.¶38

Deepak Sharma v. State of U.P.

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Deepak Sharma v. State of U.P.

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