Dismissed

Prem Shanker Misra v. State of U.P.

Allahabad HC17 Nov 2022JAPL/2043/2011

Case brief

AI extract

What is this about?

High Court of Allahabad dismissed an appeal preferring against the conviction of Prem Shanker Misra for murder under Sections 302 read with Section 34 IPC and Section 201 IPC. The Bench upheld the trial court's finding that the prosecution successfully proved a complete chain of circumstantial evidence establishing the appellant's guilt without any reasonable substitute hypothesis.

What did the court decide?

The criminal appeal was dismissed; the appellant is directed to serve the sentence awarded by the trial court.

Prem Shanker Misra Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW)

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Reserved on 02.08.2022

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Delivered on 17.11.2022

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Court No. - 1

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Case :- JAIL APPEAL No. - 2043 of 2011

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Appellant :- Prem Shanker Misra Respondent :- State of U.P. Counsel for Appellant :- Shri Shubham Gupta Counsel for Respondent :- Shri Umesh Chandra Verma, Additional Government Advocate

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Hon'ble Ramesh Sinha,J. Hon'ble Mrs. Saroj Yadav,J.

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( Per Mrs. Saroj Yadav, J. for the Bench)

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This appeal has been preferred against the judgment and order dated 18.08.2011 passed by Additional Sessions Judge, Court No. 15, Lucknow in Sessions Trial No. 851 of 2002 (State of Uttar Pradesh Versus Sunil Kumar Sharma and Prem Shankar Mishra) arising out of Crime No. 49 of 2002, under Sections 302/34 and 201 of the Indian Penal Code 1860 (in short "I.P.C."), Police Station Cantt., District Lucknow, whereby the appellant has been found guilty and sentenced under the aforementioned sections.

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Another Criminal Appeal No. 2044 of 2011 (Sunil Kumar Sharma Versus State) was also preferred by the co-convict Sunil Kumar Sharma. It transpires from the record of Criminal Appeal No. 2044 of 2011 that accused Sunil Kumar Sharma committed suicide by way of hanging in District Jail, Lucknow on 25.02.2016. Consequently the Criminal Appeal No. 2044 of 2011 filed by accused Sunil Kumar Sharma was abated by a co-ordinate Bench of this Court vide order dated 08.05.2019.

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Shorn off unnecessary details, the facts necessary for disposal of this appeal are as under:-

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One Chhote Lal Lodhi son of Mata Prasad Lodhi, resident of Gopalkheda, Police Station Mohanlalganj, District Lucknow presented a written report at Police Station Cantt, District Lucknow on 09.02.2002 at about 7.30 PM stating that he is a vegetable vendor at Telibagh Market. On 09.02.2002 at about 6.30 PM, he went to ease himself towards the canal. When he was passing through the ground of Ram Bharose School towards the bank of Telibagh canal, he smelt a very foul smell from a truck bearing number M.P. 19-A 5105 parked on the metalled road in front of Ram Bharose School besides the bank of the canal. As the window of the truck was open, so he saw inside the cabin and found that dead bodies of two persons were there in a rotten state. He also went in the noon to ease himself there but at that time the truck

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was not there. The persons coming on the spot tried to identify the dead persons but no identification could be made. This written report of Chhote Lal was registered at Police Station Cantt, District Lucknow being Case Crime No. 49 of 2002, under Sections 302, 201 IPC. The police party reached at the spot and prepared the inquest reports (Panchnamas) on 10.02.2002 (Exhibit Ka 5 and Exhibit Ka-10) and sent the dead-bodies for postmortem examination. On 12.02.2002 in the evening the post-mortem examination was done. The police started the investigation, during investigation the truck was searched and articles were recovered from the truck. The recovery memo (Exhibit Ka-15) was prepared and the site plan of recovery of dead bodies as well as of truck (Exhibit Ka-16) was also prepared. From the papers recovered from the truck, it came to light that the owner of the truck was Munindra Nath Thakur. The police informed Munindra Nath Thakur. He submitted a written report Exhibit Ka-18 and stated in that report that on 01.02.2002 his truck was carried by the truck driver Sunil Kumar Sharma son of Brij Kishore Sharma, resident of Sihura, Police Station Bilhour and at present resident of Naubasta, Kanpur Panchmukhi Hanuman Temple, from Orai to Ghaziabad and from there he loaded mineral water to unload at Lucknow. Since then, he is not traceable.

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During investigation, identification of dead persons was made as Shiv Saran Singh and Rajesh Kumar Sharma. Police arrested both the accused persons (Sunil Kumar Sharma and Prem Shankar Mishra) and after collecting sufficient material against them submitted charge-sheet Exhibit Ka-17 against them in the Court of Chief Judicial Magistrate, Lucknow. Learned C.J.M. took cognizance and after following due procedure committed the matter on 10.09.2002 to the Sessions Court. The Sessions Judge transferred the matter for hearing to the Court of Additional Sessions Judge. The Additional Sessions Judge framed charges under Sections 302/34 and 201 IPC, wherein the convict appellant denied the charges and claimed to be tried.

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In order to prove its case the prosecution examined following witnesses:-

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(i) P.W. 1 - Chhote Lal, the complainant;

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(ii) P.W. 2 - Janardan Prasad Sharma;

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(iii) P.W. 3 - Shiv Shankar;

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(iv) P.W. 4 - Dr. P.K. Kanchan, who conducted autopsy on the cadaver of Rajesh Kumar Sharma;

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(v) P.W. 5 - Dr. R.C. Agarwal, who conducted autopsy on the cadaver of Shiv Sharan Singh;

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(vi) P.W. 6 - Ram Nath Singh, retired Head Constable, who registered the Case Crime No. 49 of

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2002 and also noted the same in concerned General Diary (GD);

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(vii) P.W. 7- Raj Kumar Singh, Sub-Inspector, who prepared the inquest reports and got sealed the dead bodies and sent them for post-mortem examination;

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(viii) P.W. 8- Nand Kishore Bajpai, Inspector, who investigated the case and submitted charge sheet (Exhibit Ka-16);

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(ix) P.W. 9- Munindra Nath Thakur, the owner of the truck;

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(x) P.W. 10- Smt. Usha Sharma, sister-in-law of the deceased Rajesh Kumar Sharma;

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(xi) P.W. 11 - Ganga Charan Sharma,

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(xii) P.W. 12- Smt. Munni, wife of Shiv Sharan Singh;

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(xiii) P.W. 13- Santosh Kumar Pathak;

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(xiv) P.W. 14- Munna Lal, the witness of extrajudicial confession.

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Apart from above witnesses, relevant documents have also been proved by the prosecution and exhibited which are as under:-

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(i) Exhibit Ka-1 - Post-mortem examination report of Rajesh Kumar Sharma;

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(ii) Exhibit Ka-2 - Post-mortem-examination report of Shiv Sharan Singh;

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(iii) Exhibit Ka-3 - Chik F.I.R.;

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(iv) Exhibit Ka-4 - Carbon copy of General Diary (G.D.);

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(v) Exhibit Ka-5 - Inquest report;

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(vi) Exhibit Ka-6 - Photo-nash;

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(vii) Exhibit Ka-7 - Details of sending report along the dead-bodies;

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(viii) Exhibit Ka-8 - Specimen seal;

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(ix) Exhibit Ka-9 - Letter to CMO for conducting post-mortem;

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(x) Exhibit Ka-10 - Inquest report of another dead body aged about 35 years;

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(xi) Exhibit Ka-11 - Report of details sending along with dead bodies;

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(xii) Exhibit Ka-12 - Photo nash;

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(xiii) Exhibit Ka-13 - Specimen seal;

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(xiv) Exhibit Ka-14 - Letter to CMO for conducting post-mortem;

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(xv) Exhibit Ka-15 - Recovery memo regarding recovery of articles from truck from where deadbodies were recovered;

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(xvi) Exhibit Ka-16- Site plan of the place where truck was parked from which the dead bodies were recovered;

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(xvii) Exhibit Ka-17 - Charge-sheet,

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(xviii) Exhibit Ka-18 - Written report submitted by truck owner Munindra Nath Thakur'

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(xix) Exhibit Ka-19 - Supurdaginama of mineral water loaded in the truck;

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(xx) Exhibit Ka-20 - Application given by Munindra Nath Thakur for getting back the documents of truck;

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(xxi) Material exhibit-1- Receipt by Munindra Nath Thakur- invoice cum gate pass of Explicit Trading & Marketing Pvt. Ltd;

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(xxii) Material exhibit-2 - Invoice showing the loading of mineral water;

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(xxiii) Material exhibit-3 - Carbon copy of invoice showing the loading of mineral water;

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(xxiv) Material exhibit-4- Driving Licence of Shiv Sharan Singh.

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After completion of evidence of prosecution, statement of convict-appellant under Section 313 of the Code of Criminal Procedure, 1973, (in short Cr.P.C.) was recorded, wherein he denied the crime and stated that all the facts put before him are wrong and the witnesses have deposed falsely and he was wrongly implicated. He refused to give any evidence in defence and further stated that this case was prepared falsely against him on the basis of doubt and suspicion only and he is innocent. He did not know how these murders were committed. He used to live in another house at a distance of 2 KMs and co-convict Sunil Kumar Sharma used to live on rent in his father's house, which was rented by his

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father. No evidence was adduced in defence by the convict-appellant though opportunity was given by the trial Court.

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Learned trial Court after hearing the arguments of both the parties and analyzing the evidence on record found the chain of circumstantial evidence complete on the basis of evidence of prosecution witness and concluded that the prosecution has proved the chain of circumstantial evidence completely beyond reasonable doubt and there is no possibility of committing crime by any other person except the accused appellant and convicted the accused appellant under Section 302 read with Section 34 IPC with life imprisonment coupled with a fine of Rs.5000/- and in default of payment of fine, further imprisonment of six months. Learned trial Court further held guilty and sentenced the convict appellant under Section 201 IPC with 3 years rigorous imprisonment coupled with a fine of Rs. 1000/- and in default of payment of fine, further imprisonment of one month.

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Being aggrieved of this conviction and sentence the convict appellant Prem Shankar Mishra preferred this criminal appeal.

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Heard Shri Shubham Gupta, learned counsel for the convict/appellant and Shri Umesh Chandra Verma, learned Additional Government Advocate for the State/appellant.

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Learned counsel for the convict/appellant submitted that impugned judgment and order is against the law and evidence. Learned trial Court did not pay attention that the evidence of prosecution witness is contradictory. The case is based on circumstantial evidence as there was no eye witness of the crime. The convict-appellant has been implicated falsely due to enmity on the basis of suspicion only, hence the impugned judgment and order should be set aside and the convict/appellant should be acquitted.

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To the contrary, learned Additional Government Advocate appearing on behalf of the State/appellant submitted that the chain of circumstantial evidence is complete and the prosecution has proved its case beyond all reasonable doubts connecting all the links of circumstantial evidence. He further submitted that there is cogent evidence of last seen against the convict appellant and also extra-judicial confession. Once it is established that the deceased was seen in the company of the appellant then it was the duty of the appellant to explain the circumstances of how and when the deceased parted with him. This has not been explained by the convict/appellant. He further submitted that the trial Court has given cogent and valid reasons for holding the convict appellant guilty and sentencing him, hence the appeal should be dismissed.

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Considered the rival submissions and perused the original record as well as record of the appeals

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Admittedly, the case is based on circumstantial evidence as there is no eye witness of the incident. The most important principle of criminal jurisprudence is that accused is considered innocent until proved guilty. In a case based on circumstantial evidence heavy duty lies on the court to examine the evidence with great care and caution to hold an accused guilty. In a case based on circumstantial evidence, it is necessary that chain of circumstances should be intact and all the circumstances must indicate that in all probabilities the crime was committed by the accused and accused alone. There should be no space for doubt that some one else could have committed the crime. The Hon'ble Apex Court in this regard in the case of Shivaji Chintappa Patil Vs. State of Maharashtra reported in (2021) 5 SCC 626, the Hon'ble Supreme Court has laid down as under (para 12 ):-

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"12. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in Sharad Birdhichand Sarda v. State of Maharashtra :- (SCC p.185, paras 153-54)

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"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC p. 807 : para 19, SCC (Cri) p. 1047]

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"19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions."

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

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In the present matter, the investigation started at the information given by one Chhote Lal , who has been examined as P.W. 1. In the information it was noted that when Chhote Lal was going to ease himself he smelt a foul smell coming out of a truck

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parked at the metalled road besides the canal in front of Ram Bharose School, however, this witness turned hostile before the trial Court and denied what he has written in the first information report, however, the trial Court found the signature of Chhote Lal P.W. 1 what he put before the trial Court on the statement after recording of evidence and on the information given by him to be very much similar. The police came into motion on this information and this has been proved by the police witness also. P.W. 6- Ram Nath Singh, retired Head Constable, has stated before the Court that on 09.02.2002 he was posted as Head Moharrir at Police Station Cantt, District Lucknow. On that day at about 19.30 hours one Chhote Lal Lodhi son of Mata Prasad Lodhi, resident of Gopalkheda, Police Station Mohanlalganj, District Lucknow, came there and presented a written report. On the basis of that written report he registered the Case Crime No. 49 of 2002, under Sections 302/201 IPC against unknown persons and prepared Chik FIR No. 35 of 2002. He further submitted that he prepared General Diary (GD) at Rapat No. 41, time 19.30 hours. He proved the carbon copy of G.D. as written by him under his signature. He proved the Chik FIR (Exhibit Ka-3) and General Diary (Exhibit Ka-4). The evidence on record shows that as the dead bodies could not be identified at the initial stage, so inquest reports of both of the deceased persons were

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prepared as treated unknown persons and after all process of inquest dead bodies were sent for post mortem examination.

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During investigation, the truck from where the dead bodies were recovered, on the basis of documents found inside the truck, the owner of the truck was traced. The owner of the truck Munindra Nath Thakur submitted an information at the police station revealing that truck in question was sent on 01.02.2002 from Orai to Ghaziabad loading soap from Hindustan Liver Limited from there mineral water was loaded for Lucknow. On that truck the driver was Sunil Kumar Sharma son of Brij Kishore Sharma, resident of Sihura, Police Station Bilhour and at present resident of Naubasta, Panchmukhi Hanuman Temple, Kanpur. He further mentioned that for any offence committed during that period the driver Sunil Kumar Sharma is responsible. He further mentioned that truck driver was not traceable. Since the case is based on circumstantial evidence, the evidence of last seen is very important.

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P.W. 2- Janardan Prasad stated before the trial Court that he knew the accused Sunil Kumar Sharma and Prem Kumar Mishra. He further stated that the deceased Rajesh Kumar Sharma @ Kallu was killed about two years back and he was the only son of his father. His sister's marriage was fixed for 20.02.2002 and the deceased Rajesh Kumar Sharma

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came to his house for giving marriage-card, then he came to know that Sunil has seen him (deceased) along with the driver on truck to unload the goods for Lucknow. Thereafter the deceased did not come back, he was killed.

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P.W. 3- Shiv Shankar has stated before the trial Court that he saw the deceased Rajesh Kumar Sharma in the company of accused Sunil Kumar Sharma and Prem Shankar Mishra on the truck. He talked to his brother, who told him that he was going to Lucknow and would come back after 4-5 hours but his brother did not return and after three days, the dead body was found on a truck parked in the area of P.S. Cantt. He has further stated that Sunil Sharma and Prem Shankar Mishra called his brother and took him away.

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P.W. 10- Smt. Usha Sharma has stated before the Court that the deceased Rajesh Kumar Sharma @ Kallu was his brother-in-law. He came to Kanpur to give marriage card of his sister's marriage. He was not willing to go Lucknow but Sunil Kumar Sharma sent him with driver Shiv Sharan Singh to unload the truck at Lucknow. Sunil Kumar Sharma used to live in a rented house of Prem Shankar Mishra.

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P.W. 11- Ganga Charan Sharma has stated before the Court that Sunil Kumar Sharma, who was his distant relative, used to work as a truck driver and live in the house of Kunj Bihari Mishra (father of Prem Shanker Mishra) on rent. On 07.02.2002 at

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about 5 PM Truck No. MP-19-A 5105 was parked by Sunil Kumar Sharma after coming back from Ghaziabad. At that time, the conductor was Monty Sharma. The truck driver Shiv Sharan Sharma used to live in her vicinity. On that day in the evening some altercation occurred among Sunil Kumar Sharma, Rajesh Kumar Sharma and Monty Sharma. Rajesh Kumar Sharma was demanding his money from Sunil Kumar Sharma saying that his sister is to be married, so give his money. Rajesh Kumar Sharma came there to distribute the marriage cards. Rajesh Kumar Sharma was not willing to go to Lucknow but Sunil Kumar Sharma forcibly sent him along with Shiv Sharan Singh to unload the goods at Lucknow. Sunil Kumar Sharma sent Prem Shankar Mishra son of Kunj Bihari Mishra and Sunil Kumar Sharma himself loaded the truck near the Police Staion Naubasta. He has further submitted that Sunil Kumar Sharma and Prem Shankar Mishra both used to consume liquor. He further stated that Rajesh Kumar Sharma did not come on the next date. Sunil Kumar Sharma informed Kunj Bihari Mishra (father of Prem Shankar Mishra) on P.C.O. that Rajesh Kumar Sharma and Shiv Sharan Singh have been murdered in the truck and dead bodies were in Cantt area. Thereafter Sunil Kumar Sharma did not come back in the house and his wife and children also left the village.

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P.W.12- Smt. Munni, wife of the deceased Shiv Sharan Singh has stated before the Court that more than eight years have passed, at that time she used to live in Kanpur along with her husband Shiv Sharan Singh. Her husband used to work as a truck driver. Sunil Kumar Sharma was her neighbour at that time, he took her husband saying that he sent her husband to unload the goods in Lucknow on the pretext that he was suffering from stomachache and leg-ache. She has further stated that when Sunil Kumar Sharma called and took her husband at that time her two daughters and a son were present. She has further stated that thereafter her husband did not come back and after seven days she came to know that her husband was killed.

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P.W. 9- Munindra Nath Thakur has proved by his statement before the trial Court that Sunil Kumar Sharma was the driver of his truck, in which, dead bodies of deceased persons were recovered .

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Dr. P.K. Kanchan, who conducted post-mortem examination of the deceased Rajesh Kumar Sharma, has been examined as P.W. 4 and he found following ante mortem injuries on the cadaver:-

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(i) Ligature mark 35 cm x 4 cm present on all around the neck below thyroid cartilage, 6 cm below left ear 7 cm below ligature mark, on opening of wound larynx and trachea ring fractured.

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(ii) abrasion with blackening 3 cm x 2 cm back side of right elbow.

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(iii) abrasion with blackening 5 cm x 4 cm back side of left elbow.

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(iv) abrasion with blackening 9 cm x 6 cm mid line of the back.

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Cause of death has been shown as Asphyxia due to ante mortem strangulation.

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Dr. R.C. Agarwal, who conducted post-mortem examination of the deceased Shiv Sharan Singh, has been examined as P.W. 5 and he found following ante mortem injuries on the cadaver:-

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(i) Transverse ligature mark 35 cm x 4 cm all around neck, 6 cm below the left eye, 6 cm below the left ear and below ligature mark, on opening of wound larynx and ring no. 1 to 4 of respiratory canal fractured.

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(ii) lacerated wound 2 cm x 5 cm on right side of the face.

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(iii) abrasion with blackening 2 cm x 2 cm in front of both knee.

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Cause of death has been shown as Asphyxia due to ante mortem strangulation.

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In this matter the most important evidence is of P.W. 3-Shiv Shankar (brother of the deceased Rajesh Kumar Sharma) and P.W. 12- Munni, the wife of Shiv Sharan Singh. Both these witnesses are

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the witnesses of last seen, who have stated that the deceased persons were in the company of the convict appellant. A lengthy cross examination has been made with these two witnesses but no adverse fact could be brought in their evidence. It is settled law that if the person is seen in the company of someone and thereafter he is found murdered or missing then it is the duty of that person to explain how and when the deceased parted with him or them. In the present matter the convict appellant has not explained how and under what circumstances both the deceased parted with him. Both the deceased were seen last in his company thereafter they were not seen live by anyone and their dead bodies were found inside the truck parked at the place mentioned. In short, the prosecution has proved the chains of circumstantial evidence completely leading to the conclusion that appellant/ convict killed the deceased persons. The argument advanced by the learned counsel for the appellant that no motive was there to the appellant committing the crime is of no importance because the evidence on record shows that co-convict used to live in his house on rent and the deceased persons were last seen in his company. Further more, it is not always necessary to prove the motive for the prosecution because nobody can peep into the mind of miscreants for what purpose or for what reason he has committed particular murder. After analyzing

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the evidence available on record it is crystal clear that learned trial Court has given cogent, convincing and satisfactory reasons while passed the order of conviction.

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We therefore, do not find any merit in the appeal. The appeal is accordingly dismissed.

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The convict/appellant is stated to be in jail, accordingly, he shall serve out the sentence awarded by the trial Court.

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Office is directed to send a copy of this judgment along with lower Court record forthwith to the trial Court concerned for necessary information and compliance.

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(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)

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Order Date:- 17.11.2022

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Arun

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Digitally signed by ARUN KUMAR Date: 2022.11.17 15:59:32 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Prem Shanker Misra v. State of U.P.

Case brief

What is this about?

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Prem Shanker Misra v. State of U.P.

Case brief

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