Allahabad High Court
Devendra Shukla @ Mantu And Anr. vs State Of U.P. on 20 December, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:199464-DB Case :- CRIMINAL APPEAL No. - 689 of 2019 Appellant :- Devendra Shukla @ Mantu And Anr. Respondent :- State of U.P. Counsel for Appellant :- Ramesh Chandra Yadav,Saurabh Yadav Counsel for Respondent :- G.A.,Kuldeep Johri With Case :- CRIMINAL APPEAL No. - 299 of 2019 Appellant :- Rahul Shukla Alias Rinku Respondent :- State of U.P. Counsel for Appellant :- Manvendra Singh,Rahul Saxena,Ravi Sahu,Saurabh Yadav Counsel for Respondent :- G.A.,Kuldeep Johri Hon'ble Ashwani Kumar Mishra,J.
Hon’ble Dr. Gautam Chowdhary,J.
(Per: Hon’ble Ashwani Kumar Mishra,J.)
1. This criminal appeal is directed against the judgment and order dated 12.12.2018, passed by the 4th Additional Sessions Judge/Special Judge, E.C. Act, Pilibhit in Sessions Trial No.199 of 2015 (State Vs. Devendra Shukla @ Mantu & Ors.), under Sections 148, 452, 302/149, 323/149, 504, 506 IPC, arising out of Case Crime No.529 of 2015, Police Station – Sungarhi, District – Pilibhit; Sessions Trial Nos.200 of 2015 (State Vs. Rahul Shukla Alias Rinku), 201 of 2015 (State Vs. Devendra Shukla @ Mantu), 202 of 2015 (State Vs. Mahesh Shukla), under Section 4/25 Arms Act, arising out of Case Crime Nos.530 of 2015, 531 of 2015, 532 of 2015, Police Station – Sungarhi, District – Pilibhit; whereby the accused appellants Devendra Shukla @ Mantu, Rahul Shukla Alias Rinku and Mahesh Shukla have been convicted and sentenced to life imprisonment under Section 302/149 IPC alongwith fine of Rs.10,000/- and in default of payment to undergo three months additional imprisonment; sentenced to one year rigorous imprisonment under Section 323/149 IPC; sentenced to one year rigorous imprisonment under Section 148 IPC; sentenced to three years rigorous imprisonment under Section 452 IPC alongwith fine of Rs.2,000/- and in default of payment to undergo two months additional imprisonment; sentenced to one year rigorous imprisonment under Section 504 IPC; sentenced to three years rigorous imprisonment under Section 506 IPC; sentenced to one year rigorous imprisonment under Section 4/25 Arms Act alongwith fine of Rs.1,000/- and in default of payment to undergo one month additional imprisonment. All the sentences are to run concurrently.
2. At 11.45 AM on 6.3.2015, informant Neelu Rupali Pandey was at her house alongwith her parents and brother Mudit Mishra when accused Devendra Shukla @ Mantu, Rahul Shukla Alias Rinku armed with knife, Triloki Nath Shukla @ Tillu armed with gupti (a sharp edged instrument), Anuj Shukla and Mahesh Shukla armed with knife entered informant’s house at Nai Basti, near Chatri crossing within Police Station Sungarhi, District Pilibhit and in furtherance of their common intention attacked informant’s father. Accused Mahesh Shukla exhorted by saying that informant’s father had dared to lodge a report against his daughter so he be not spared. Accused persons then assaulted informant’s father with knife and gupti and when other family members tried to save them, they (family members) were also beaten and by extending threats the accused left. Out of fear of accused none from the neighbourhood came to their rescue. Informant brought his injured father to the police station. Some time before this incident accused Mahesh Shukla had allegedly extended life threat to informant’s father on phone. The incident was reported by the informant vide her written report dated 6.3.2015 which is exhibited as Ex.Ka.1 during trial. On the strength of the above written report First Information Report came to be lodged under Sections 147, 148, 149, 302, 452, 323, 504, 506 IPC at Police Station Sungarhi, District Pilibhit on 6.3.2015 at 12.20 PM.
3. The investigation proceeded on the basis of the FIR and the inquest was conducted on 6.3.2015 at 2.30 PM. The inquest witnesses were of the view that deceased Nirmal Mishra has been done to death apparently on account of injuries caused by knife and to ascertain the correct cause of death postmortem be conducted. The body was sealed and sent for postmortem. Postmortem was also conducted on the same day. The autopsy surgeon found existence of following ante-mortem injuries and the cause of death was reported as shock and hemorrhage due to following ante-mortem injuries caused by stabbing:-
“1. Abrasion on middle of chest 4 cm x 2 cm red in color
2. Punctured wound 2 cm x 0.5 cm bone deep on left side chest 8 cm below left nipple red in color
3. Stitched wound 3 cm width on left side abdomen 16 cm below from left nipple horizontally placed on exploration it was punctured wound through and through in abdominal cavity with cutting peritonial and muscles (stabbed)
4.Stitched wound 2 cm width horizontally placed, 9 cm above from umbilicus on exploration wound passed through and through in abdominal cavity with cutting peritonial and muscles
5. Abraded contusion on left side 8 cm x 3 cm obliquely placed 4 cm above left anterior superior iliac spine red in color
6. Abrasion 2 cm x 1 cm on left thigh 10 cm below left iliac crest red in color
7. Lacerated wound on right little finger 1 cm width at palmar aspect red in color
8. Lacerated wound on thumb left 1.5 cm x 0.5 cm at palmar aspect red in color
9. Lacerated wound on left index finger at palmar aspect 1 cm x 0.5 cm red in color
10. Lacerated wound on left middle finger at palmar aspect 1.5 cm x 0.5 cm red in color”
4. The accused Rahul Kumar Alias Rinku, Devendra Shukla @ Mantu sons of Mahesh Kumar Shukla and Mahesh Kumar Shukla were arrested on 6.3.2015, who confessed that daughter of accused Mahesh Kumar, namely Shilpi was married to Deepak Pandey of Bareilly. Brother of Deepak Pandey, namely Prakash Pandey was married to the daughter of deceased Nirmal Mishra, namely Neelu @ Rupali. Neelu @ Rupali had lodged an FIR complaining dowry harassment by her husband and in-laws in which Shilpi (daughter of accused Mahesh Shukla) was also implicated. Accused Mahesh Shukla alongwith his sons Rahul Kumar Alias Rinku, Devendra Shukla @ Mantu, Triloki Nath Shukla as well as with grandson Anuj Shukla visited deceased Nirmal Mishra to enquire about the dowry related criminal case and it was there that Nirmal Mishra started abusing them and in a fit of rage they assaulted Nirmal Kumar Mishra with knives and gupti. These weapons were then cleaned and hidden in the toilets at their house. On the basis of such confession the police took the accused to their house from where three knives were recovered on the pointing out of accused Mahesh Shukla and his two sons Rahul Kumar Alias Rinku, Devendra Shukla @ Mantu. Since the size of the knife was more than the prohibited size, as such second FIR came to be lodged under Section 3/25 Arms Act as Case Crime Nos.530 of 2015, 531 of 2015, 532 of 2015, Police Station – Sungarhi, District – Pilibhit. Recovery memo was also prepared in respect of three knives recovered from possession of accused Mahesh Shukla, Rahul Kumar Alias Rinku, Devendra Shukla @ Mantu. On 6.3.2015 itself the Investigating Officer visited the place of occurrence and took the blood stained earth and plain earth in separate boxes and sealed it vide Ex.Ka.4.
5. On 22.5.2015 accused Triloki Nath @ Tilu proceeded son of Mahesh Shukla was arrested at 7.45 in the morning and on his pointing out gupti was recovered from an old tubewell room in the Barha railway colony the accused appellant confessed that it is with this gupti that he has assaulted deceased Nirmal Kumar Mishra and had hidden it there. Gupti was nine inches long of which seven inches had wooden bait while the sharp pointed part is of two inches. It was pointed at the edge and flat on the middle part. Deceased was aged about 55 years with average body built. The deceased was in his undergarments and wearing a janeu (a piece of wired thread) on him. The Investigating Officer recorded the statement of witnesses including family members and on the strength of recoveries made from the place of occurrence as also on the pointing out of accused appellants submitted charge-sheets in both the FIRs on 10.3.2015 and 24.5.2015. Cognizance was taken on the aforesaid charge-sheets and the case was committed to the courts of Sessions where it got registered as Sessions Trial No.199 of 2015, under Sections 148, 452, 302/149, 323/149, 504, 506 IPC, arising out of Case Crime No.529 of 2015 and Sessions Trial Nos.200 of 2015, 201 of 2015, 202 of 2015, under Section 4/25 Arms Act, arising out of Case Crime Nos.530 of 2015, 531 of 2015, 532 of 2015. On 19.8.2015 the accused appellants were charged of above offences and since they denied their implication and demanded trial, the proceedings of trial commenced.
6. The prosecution has adduced following documentary evidence:-
“1. FIR dated 6.3.2015 as Ex.Ka.16
2. Written Report dated 6.3.2015 as Ex.Ka.1
3. FIR dated 6.3.2015 as Ex.Ka.19
4. Recovery Memo of blood stained & plain soil as Ex.Ka.4
5. Recovery Memo of knife as Ex.Ka.5
6. Recovery Memo of ‘gupti’ as Ex.Ka.7
7. ‘Panchayatnama’ dated 6.3.2015 as Ex.Ka.10
8. P.M. Report dated 6.3.2015 as Ex.Ka.2″
7. In addition to the above documentary evidence the prosecution has produced informant, namely Rupali Pandey @ Neelu as PW-1. She has told that she got married to Prakash Pandey in 2007. She was happy with her husband. Few months prior to the incident her husband developed inclination towards her jethani Shilpi Pandey. This led to strained relations between the family members. Father-in-law Sudheer Pandey, mother-in-law Shakuntala Devi, husband Prakash Pandey and jethani Shilpi Pandey started harassing her for demand of dowry. She came to her father’s house and lodged a police case of dowry against her husband, in-laws and jethani. On account of lodging of this FIR accused Mahesh Shukla alongwith his sons and grandson became annoyed. On 6.3.2015 accused Mahesh Shukla telephoned Nirmal Kumar Mishra and extended life threats to her father. On the same day at about 11.45 in the morning accused persons came to her husband and started hurling abuses. It is thereafter that all the accused collectively attacked her father. Accused Mahesh Shukla, Devendra Shukla and Anuj Shukla were carrying knives, while accused Triloki Nath had a gupti in his hands. These persons indiscriminately inflicted blows and seriously injured her father. It is thereafter that PW-1 took her father to the hospital in injured condition where written report was prepared. She has proved the written report and the same is exhibited as Ex.Ka.1. After lodging of the report the witness took her father to District Hospital, Pilibhit where he was admitted and on the same day at about 1.45 in the afternoon her father died. Statement of the witness was recorded by the Investigating Officer at the Hospital. The Investigating Officer came to her house and inspected various spots where blood etc was lying and recovery memos were prepared in the presence of her brother Mudit Mishra, mother Santosh Mishra and sister-in-law Shilpi Mishra.
8. In the cross-examination PW-1 has stated that six months after her marriage demand of dowry started which continued till she was literally thrown out of the house. Prior to her leaving the house she neither lodged any FIR nor made any complaints against the family members. Report was lodged at Police Station Sungarhi on 21.2.2015. In the dowry case a compromise was worked out and she was living in her matrimonial house. She had not given any affidavit in the dowry case that the report was lodged on the persuasion of others. On 21.2.2015 neither her in-laws came nor any threat was extended to her father. These facts were not disclosed by her in the FIR lodged by her. In case such an assertion is contained in the FIR then the same is not correct.
9. It was Holi on the date of incident. People were playing colors in the locality. She was inside her house. The accused persons suddenly entered the house and started hurling abuses. They also attacked her father with knife and gupti. All Accused entered the room. Initially they assaulted her father with fists and kicks and later caused the knife blows. Her father fell. She tried to save her father but the accused persons continued to cause injuries. Her father sustained various injuries. No injuries of knife and gupti were however caused to PW-1 or her mother and brother etc. After assaulting the father accused persons did not cause any injuries of knife or gupti to other family members. The accused left hurling abuses. She had stayed for about five minutes after the accused left. She then took her father in the car owned by her father. She has denied the suggestion that on the saying of S.H.O. the report was lodged by her. She was aware that till the injured was brought to the hospital the report would not be lodged. She has specifically denied the suggestion that the version of extending threats to her father, on phone, sometime prior to incident was subsequently added. She has also stated that blood stains had appeared on her cloths alongwith that of her mother and brother. They had gone to the police station in the blood stained cloths and that Investigating Officer had seen it also. The Investigating Officer, however, had not collected their blood stained cloths. No case was lodged against her father and it is incorrect to state that he has any criminal history.
10. PW-2 is Mudit Mishra, who happens to be the son of the deceased and is the real brother of informant. He has substantially followed the version of PW-1 with regard to the genesis of the incident as also the manner in which the incident occurred. He has stated that a telephone call was received from mobile number 9761216633 of accused Mahesh Shukla on the mobile number 9411976624 of his father. His father had another mobile number also. Life threat was extended by accused Mahesh Shukla on mobile. This fact was told by the deceased to him. PW-2 has proved the panchayatnama, wherein he was the witness and also proved the recovery of bloodstained and plain earth from the place of incident.
11. In his further cross-examination PW-2 has stated that when his father informed him of this threat he did not suggest lodging of any report. He did not lodge a report either. The accused in this case were not arrayed as accused in the dowry case of his sister. Only the in-laws of Neelu were implicated as accused therein. In a specific question posed to the witness about threat to life extended in the dowry case he told that he has no such knowledge. He had read the FIR in the dowry case. He is, however, aware of the contents of the report lodged by his sister in this case. He is aware that no threat to life was extended to her sister by her in-laws. His sister resumed living in her matrimonial house after about a month of the incident wherein her father died. A compromise has been arrived at. He was not aware that his father had several criminal cases against him or that he was tried for the offence of murder. He has explained the topography of his house according to which there is a lawn in front of his house which is double storied. He was on the ground floor when the incident occurred. The accused arrived and hot talks continued for about 5-7 minutes. No injuries were caused to him or to his mother or sister in this incident. The statement of PW-2, in this regard, reads as under:-
“मेरा दो मंजिला मकान है। मेरी मकान के किनारे पर बाउण्ड्री वाल में गेट लगा है। वह छोटा गेट है। यह मेन गेट नहीं है। उस गेट में कार नहीं घुस सकती है। मेन गेट से अन्दर घुसने पर लॉन है। हम अपनी कार मेनगेट से गैलरी में खड़ी करते है। लॉन करीब 10 x 6फिट लम्बा चौड़ा है। बरामदा नहीं है। घटना के समय मैं नीचे था। कोई बातचीत नहीं हुई थी,केवल गाली-गलौच हुई थी। कुछ झगड़ा 5-7 मिनट चला था। गाली गलौज 1-2 मिनट हुआ था। मौहल्ले के कोई लोग झगड़े के समय नहीं आए थे। मुझे झगड़े में चोट नहीं आई और न ही मेरी मम्मी व बहिन को चोट आई।”
12. This witness has denied the suggestion that FIR contents are based on legal advise. He has denied the suggestion that he was not present at the house when the incident occurred or that accused are falsely implicated. In a question posed to the witness by court he stated as under:-
“मैं नही बता सकता किस मुलजिम ने मेरे पिता के किस अंग पर क्या मारा। वार होने से पहले मैंने धारदार हथियार देख लिए थे। मैंने अभियुक्तगण के पास धारदार हथियार देखने के बाद शोर नहीं मचाया। पिता के चोट लगने के बाद मेरी पिता से बातचीत नहीं हुई। वह बेहोश नहीं हुए, होश में थे। मेरे पिता की किसी और से भी बातचीत नहीं हुई। अस्पताल इलाज को ले गए थे। मेरे पिता को करीब 10 मिनट (Sic) रोके रक्खे थे फिर पिता वहीं मर गए थे। यहां खून गिरा था, वहां पर मिट्टी पर भी खून गिरा था और फर्श पर भी खून गिरा था। त्रिलोकी नाथ के पास गुप्ती थी। गुप्ती कहां मारी थी, नहीं पता गुप्ती बिना कवर की थी, खुली देखी थी।”
13. He also stated that:-
“प्रश्नः- क्या आपकी झगड़े से पहले पिता से बातचीत हुई थी?
उ०ः- मेरे पिता ने मुझे धमकी वाली बात बताई थी। जिस फोन पर मेेरे पिता को धमकी दी गई वह मोबाईल मेरे पास रहा। पुलिस को नहीं दिया।
दरोगा जी ने मेरे से मोबाईल लेकर कॉल दरोगा जी ने मोबाईल का मेमोरी कार्ड नहीं लिया था और उस मौबाईल की मेमोरी की भी जांच नहीं की थी। दरोगा जी ने केवल मोबाईल को देखा था, कम्प्यूटर पर scan नहीं किया था। मुझे दरोगा जी ने बताया था कि उन्होनें मोबाईल का कॉल डिटेल रिकार्ड निकलवाया है। दरोगा जी ने जो भी मुकदमें की जांच की उसकी प्रगति रिपोर्ट मुझे नहीं दी। दरोगा जी ने मुझे मार्च 2015में कॉल रिकार्ड दिखाया था।”
14. PW-3 is Dr. Rajesh Kumar, who had conducted postmortem on the deceased and has proved the postmortem report. He has opined that the cause of death was the stab injury which resulted in excessive loss of blood. Injury no.2,3,4 and intestinal injuries could have been caused by sharp edged weapon, whereas other injuries could have been caused by fists and kicks. Injury no.6 could have been caused by a stick or an iron rod. Injury no.7 to 12 also could have been caused by a stick or an iron rod. Injury no.7,8,9 could have been caused by a broken bottle also.
15. PW-4 is Inspector Brajesh Singh, who conducted investigation in the matter and has proved the police papers including the charge-sheet filed in the present case. He has also proved the recovery of weapon of assault. This witness has admitted that the deceased had several cases of murder, loot and dacoity pending against him. He had a criminal background. He also disclosed that the father of deceased Ram Kumar and his uncle were also convicted for murder.
16. PW-5 is Sub-Inspector Ashok Kumar, who has proved the inquest and some of the other police papers. He had no knowledge as to whether the recovered knives were sent for forensic science laboratory or not. He had not seen the FIR or GD at the time of filling up inquest. Incident of death was already reported in the GD.
17. PW-7 is SI Rahmat Khan. He partly conducted investigation in the present case and recorded statement of witnesses.
18. The above evidence led in the matter has been confronted to the accused, who have denied the evidence and have stated that police proceedings are all fraudulent. Anti-time papers have been prepared. On 6.3.2015, it was Holi and at about 9.00 accused alongwith his sons were hit by an unknown vehicle near the crossing wherein the accused sustained injuries and gave information to the police. The accused were taken to the hospital where they were examined. The informant in collusion with the police has lodged a false report.
19. The defence has produced testimony of doctor Dr. Anupam Sharma, Emergency Medical Officer, District Hospital, Pilibhit as DW-1. He has proved the injuries of accused Rahul Shukla which are as under:-
“1. Incised wound skin deep 1×0.5cm on palmar aspect of right hand 4 cm from right wrist.
2. Incised wound 1×0.5 cm on dorsal aspect of right hand, 4 cm above forearm, base of right little finger.
3. Complaint of pain in left wrist.”
20. All the injuries were fresh and could have been caused by a sharp edged weapon. Accused Mahesh Shukla has also been examined by DW-1 on the same day and following injuries have been found on him:-
“1. Incised wound 1×0.5cm on sternum, muscle deep, 8 cm from below left nipple with tailoring 4 cm towards left oblique.
2. Contused abrasion 6 cm from wound, injury no.1.
3. Complaint of pain in right middle finger.
4. Contused abrasion 7 cm long on left side of chest, 2cm below from injury no.1.
5. Complaint of pain in head.”
The patient was kept under observation. Injuries were fresh and injury no.1 could have been caused by a sharp object. Injury no. 2 and 3 could have been caused by a pointed object. The patient was referred for expert opinion to surgeon. This witness has produced the original records of injury and its photocopy has been produced. He has also stated that police had taken all such original records from him earlier.
21. It is on the basis of above evidence that the trial court has convicted and sentenced the appellants, as per above.
22. Learned counsel for the appellants argued that all the accused appellants have been falsely implicated in the present case. It is submitted that the testimony of witnesses are not reliable. Genesis and manner of incident is not proved on the strength of evidence led in the trial. In the alternative it is submitted that the incident occurred at the spur of the moment without any intent to commit the murder of the deceased. It is also submitted that the injuries on the accused are not explained by the prosecution, consequently, genesis is not proved and since possibility of incident having suddenly occurred cannot be ruled out the conviction and sentence of accused appellants cannot travel to Section 302 IPC and would, at best, fall under Section 304 IPC. It is also submitted that the prosecution case about extending threat of life to the deceased on phone is clearly a case of improvement based on advise in respect of which no evidence is collected. Submission is that this part of the prosecution case is a deliberate falsehood introduced on advise with intent to make out a case of murder for which no evidence otherwise exists on record.
23. Per contra, learned AGA and Sri Kuldeep Johri, learned counsel for the informant submits that the incident was pre-planned and was executed after extending threat on phone to the deceased for which specific motive was available to the accused. Submission is that the manner in which the incident occurred belies any plea of it being a case of sudden provocation. It is also submitted that defence explanation that accused sustained injuries in an accident or that the deceased died in an accident are wholly misplaced and the plea in that regard is clearly inconsistent with the evidence on record. It is, therefore, argued that the judgment of trial court convicting and sentencing the accused appellants requires no interference.
24. Background facts of the case, as are noticed above, remain undisputed. The daughter of deceased i.e. the informant as well as daughter of accused Mahesh Shukla were married in the same family to two brothers. The daughter of accused Mahesh Shukla is the jethani while the daughter of deceased (informant) was her younger sister-in-law (devrani).
25. The FIR came to be lodged by the informant (PW-1) against her in-laws for demand of dowry, wherein the daughter of accused was also implicated. The evidence further suggests that the informant suspected some unholy relationship between her husband and her sister-in-law (daughter of accused Mahesh Shukla). This lodging of FIR led to differences in the families of the deceased and the accused.
26. The incident occurred on 6.3.2015 when the festival of colors (Holi) was being celebrated. This festival of colors culturally provides an occasion for the estranged relatives and friends to bury their differences and hug each other. However, on this pious day just the reverse occurred. In what context and manner this incident occurred is the subject matter of issue in the present appeals.
27. The prosecution in order to demonstrate that it was a case of pre-planned murder of the deceased has alleged that on the date of incident a life threat was extended by accused Mahesh Shukla to the deceased on phone. The prosecution witnesses alleged that it was in furtherance of this threat that all the accused came armed and assaulted the deceased as a result of which he died.
28. The evidence on record has been examined by us. Though it is the persistent case of the prosecution that a threat to life was extended by accused Mahesh Shukla to the deceased but it remains undisputed that no such threat was reported to the police. The two prosecution witnesses of fact allege that the deceased informed them of such threat extended to him. None of these two witnesses, however, suggested lodging of police report nor actually any such report was lodged. The threat to life is stated to have been extended by accused Mahesh Shukla on his mobile phone. Though PW-2 specifies the mobile number from which this threat was extended as also the mobile number on which it was received but the I.O. has neither taken the phones in his possession nor any investigation on this aspect appears to have been conducted. There is no call detail records collected during investigation of these mobile phones which could may demonstrate that any phone call was received by the deceased from the mobile phone of accused Mahesh Shukla. The evidence, therefore, is found lacking on the aspect of threat having been extended to the deceased by the accused persons. To reiterate neither any report is lodged in this regard nor any call detail record exits to prove that any mobile call was made by the deceased to the accused as is stated by PW-2. The possibility of this aspect having been introduced as a result of advice cannot be entirely ruled out.
29. We have already observed that the date of incident was Holi which is an occasion for estranged relations to be normalized by meeting relatives and friends. Though PW-1 has stated that all accused came and suddenly started assaulting the deceased but this version of PW-1 is somewhat differently described in the testimony of other witnesses of fact i.e. PW-2. According to PW-2 all the accused came on Holi and for initial 5-7 minutes they had hot talks, whereafter accused persons started assaulting the deceased. The fact that parties talked initially for some time before the incident occurred is indicative of the fact that the accused persons had some talks with the deceased before the incident occurred. It is not as if incident occurred in a pre-planned manner where the accused having extended threat on the phone came rushing and immediately caused the incident as is sought to be suggested by the prosecution.
30. The evidence of PW-2, suggesting a distinct course, seems more plausible. The fact that none of the other family members sustained any injuries is indicative of the fact that the incident has not occurred in the manner suggested by the prosecution. We may also note that PW-1 although has claimed that other family members were also beaten but none of their injuries are examined by the doctor. PW-2, nevertheless, admits that none of them sustained any injuries. We are, therefore, inclined to attach greater importance to the version of PW-2 over what is stated by PW-1. This is, particularly so as it was due to estranged relations between PW-1 and the daughter of the accused Mahesh Shukla that the entire incident had occurred. The charge emotions of PW-1, therefore, cannot be discounted due to which we are inclined to place greater trust in the version of PW-2.
31. There are two other circumstances relating to the incident which have to be borne in mind. The first circumstance is that the deceased was a man of criminal traits. This is admitted by the I.O. in his testimony. A suggestion has been given by defence to both the prosecution witnesses of the fact about the criminal traits of the deceased. The second circumstance is the injuries sustained by the accused persons. The testimony of DW-1 proving the injuries of two accused has not been doubted or controverted by the prosecution or the informant. Though an explanation is furnished for such injuries by the defence of an accident but the defence version in that regard is found wholly unreliable.
32. The law with regard to non-furnishing of explanation of injuries on the accused is by now well settled. The prosecution is expected to prove the injuries caused to the accused and the failure to do so may result in generating doubt about the genesis of incident. In Babu Ram & Ors. Vs. State of Punjab (2008) 3 SCC 709, the Supreme Court has observed as under in para 18 and 19 of the judgment:-
“18. It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
“1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” (See Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 : 1976 SCC (Cri) 671 : AIR 1976 SC 2263] , SCC p. 401, para 12.)
19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.”
33. When the above two circumstances with regard to criminal traits of the deceased and unexplained injuries on the accused are taken in conjunction with the other facts on record we find a distinct possibility of it being an incident in which the accused persons visited the house of deceased to discuss and sort out issues relating to conflicts between the two ladies on account of lodging of report by PW-1 against her in-laws. It is also admitted to PW-1 that after the death of her father she has resolved the differences with her in-laws and has been residing with them. The differences between her and her in-laws were therefore such which could have been sorted out. The attempt on part of accused persons, therefore, to visit the deceased and the informant for resolving their differences by visit on a pious day appears to be a distinct possibility. This is so as we have found no evidence with regard to any earlier threat having been extended to the deceased by the accused. It is in this background that the parties appear to have entered into an altercation which led to the fight in which blows were exchanged between the accused and the deceased. This is clearly reflective from the injuries on the deceased caused by fists and kicks etc. An analysis of injuries on the deceased and the accused also throws some light on what may have happened on the fateful day. Injury no.7 to 10 of the deceased are on his fingers and in the nature of laceration. Injuries on accused are also such which reflects that scuffle and exchange of fists etc occurred before injuries no.2 to 4 were caused to the deceased by knife and gupti, which proved fatal.
34. So far as the use of gupti and injuries are concerned, the recovery made from the accused appellants are not in the presence of any independent witness. No disclosure statement or panchayatnama is otherwise on record for such recoveries to be read in evidence under Section 27 of the Indian Evidence Act, 1872. There are no FSL report otherwise to prove the use of these weapons in the commissioning of offence. Nevertheless injuries on the deceased since are caused by sharp edged weapon it remains undisputed that accused persons did inflict injuries on the deceased. Suggestion has been given to the doctor that many of these injuries could have been caused by broken bottle or other household items. Presence of some sharp edged articles in the room otherwise cannot be discounted. It is this context that we are persuaded to opine that in the enraged emotions the incident suddenly occurred in which the deceased was inflicted injuries causing his death. The cause of death is otherwise loss of blood on account of injuries caused by sharp edged weapon. From the evidence placed on record it is also not clear as to whether the common object of the unlawful assembly was to cause the death of the deceased. The entire incident occurred on Holi after initial talks for some time leading to a free fight in which both sides sustained injuries. It is thus possible that accused side visited deceased to sort out differences and in hot talks that followed the incident occurred.
35. We have gone through the judgment of trial Judge in this case. The Court of Sessions has not appreciated the evidence on record in correct perspective, inasmuch as lack of evidence on the aspect of life threat extended to the deceased earlier in the day; lack of evidence on the recovery of knife and gupti for it to be read in evidence under Section 27 of the Indian Evidence Act, 1872; non-explanation of injuries on accused etc. are overlooked. The genesis and manner of incident is also not considered in proper perspective. Accordingly, we cannot endorse the conclusion drawn by the trial Judge upon appreciation of evidence and for the reasons already enumerated substitute our own findings in this case and modify the sentence on the accused.
36. When the incident is taken in its entirety in light of the evidence brought on record we feel that the offence of the accused would not fall under Section 302 IPC but would fall under Section 304 (Part-I) IPC. The conviction of accused is thus altered from Section 302 IPC to Section 304 (Part-I) IPC. None of the accused appellants have any criminal history. The manner in which the incident appears to have occurred would not warrant extreme punishment of life and we, accordingly, modify the sentence awarded to the accused appellants as rigorous imprisonment of ten years in place of life sentence. All the accused are family members, otherwise. The imposition of fine and the default fine is maintained. The accused appellants shall be set free on serving the sentence imposed on them.
37. Appeals, accordingly, are partly allowed.
38. Let a copy of this order be sent to the concerned Chief Judicial Magistrate for necessary compliance.
Order Date:- 20.12.2024
RA
(Dr. Gautam Chowdhary,J.)(Ashwani Kumar Mishra,J.)