Allahabad High Court
Santosh Kumar Shukla vs State Of U.P. on 24 May, 2017
Bench: Bharat Bhushan, Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case :- CRIMINAL APPEAL No. - 6446 of 2003 Appellant :- Santosh Kumar Shukla Respondent :- State Of U.P. Counsel for Appellant :- Deo Prakash Singh, A.K. Singh, Prashant Singh,Shekar Srivastava Counsel for Respondent :- Govt. Advocate,Ajit Ray Aga Hon'ble Bharat Bhushan,J.
Hon'ble Shailendra Kumar Agrawal,J.
(Delivered by Hon. Bharat Bhushan,J.)
1. Appellant Santosh Kumar Shukla has assailed the judgment and order dated 27.11.2003 passed by the Additional Sessions Judge, Court no. 6 Jaunpur in S.T. No.586 of 2001 arising out of Crime No.152 of 2001 under Section 302 of Indian Penal Code (IPC), Police Station (P.S.) Singramau, District Jaunpur whereby the appellant was convicted and sentenced to life imprisonment and a fine of Rs.1000/- with default stipulation.
2. Prosecution story in brief is that informant/complainant Pradeep Kumar Shukla @ Bablu who was living in village Dhaniamau had come to his parental village Firozpur. He was cutting fodder along with his sister Ragini and mother Shobha Devi in afternoon of 17.09.2001. His four years old brother Vipul Kumar was playing in front of his house. Suddenly at 4:30 pm. they heard the cries of deceased Vipul Kumar. All of them rushed towards the source of this noise and witnessed that appellant Santosh Kumar Shukla was stabbing Vipul Kumar (deceased). This incident was also witnessed by his elder father (Tauji), Manogi Prasad Shukla (PW 2). All of them raised alarm and rushed towards appellant Santosh Kumar Shukla who threw the knife on the place of occurrence and fled away.
3. The incident occurred sometime around 4:30 pm. on 17.9.2001. Complainant Pradeep Kumar Shukla @ Bablu (P.W. 1) went to the police station Singramau located almost 10 kms. away from the place of occurrence and lodged FIR (Ext. Ka-1). A chik report (Ext. Ka-4) was carved out. The case was entered into general diary (G.D.) of concerned P.S. extract of which is available on record as (Ext. Ka-5).
4. Sri Ram Chandra Bharti (PW 5), S.O. of P.S. Singramau was present in the police station. He gathered relevant material and rushed to the place of occurrence in village Firozpur with Head Constable Promoted (HCP) Virendra Singh, constable Maan Chand Yadav (P.W.3), constable Rama Shanker Mishra, constable Afjal Sultan and constable Faiyaz Ahmad. Cadaver was found in front of the house of complainant. Some work was done on the place of occurrence but due to darkness and absence of proper light, the cadaver was handed over to constable Maan Chand Yadav (P.W. 3) and constable Rama Shanker Mishra while statements of complainant Pradeep Kumar Shukla (P.W.1) and Manogi Prasad Shukla (P.W. 2) were recorded. Appellant was also searched but could not be apprehended.
5. Next day in the morning of 18.9.2001 inquest proceedings were initiated at 7:15 am. and were completed by 8:45 am. Both P.W. 1 Pradeep Kumar Shukla @ Bablu and P.W. 2 Manogi Prasad Shukla also acted as witnesses of inquest proceedings. The cadaver was properly sealed and documentation was done. Inquest report (Ext. Ka-2) is available on record. The body was handed over to P.W.3 constable Maan Chand Yadav and constable Rama Shanker for transportation to the mortuary. Site plan (Ext. Ka-11) was prepared. Blood stained knife was also recovered from the spot (Fard Ext. Ka-12). S.O. Ram Chandra Bharti also collected blood stained and simple earth (Fard Ext. Ka-13) from the spot. It is alleged that four years old deceased Vipul Kumar was playing with the rubber tube of scooter and two torch cells at the time of murder. These materials were also recovered from the place of occurrence (Fard Ext. Ka-14).
6. The statement of other witnesses, namely, Sindhu Prasad and Indra Narain were also recorded. The house of accused/appellant was searched (Fard Ext. Ka-15) and thereafter he was arrested from Ratasi crossing bus stand at 12:30.
7. Appellant was questioned and thereafter a scarf (Gamcha) and a blue colour shirt were recovered at the instance of appellant (Fard Ext. Ka-16). A site plan (Ext. Ka-17) of this recovery place was prepared. S.O. Ram Chandra Bharti came back on 18.9.2001 at 16:30 pm. and made relevant entries in G.D. of Police Station, copy of which is available on record as Ext. Ka-18. Postmortem was conducted on 18.9.2001 by P.W. 4 Dr. D.B. Singh of district hospital Jaunpur who found following ante mortem injuries on the person of deceased Vipul Kumar:-
"1. Sixteen Incised wound on left side chest each measuring 2 cm.x1 cm.x thorase cavity deep.
2. Two incised wound on left side abdomen measuring 3 cm.x1.5 cm x cavity deep from one of the wound omentum is coming out.
3. Four incised wound on left side body each measuring 2 cm.x 1 cm.x thorase cavity deep."
8. Dr. D.B. Singh also clarified one discrepancy saying that he had mistakenly recorded the name of deceased as Vitul Kumar in postmortem in Ext. Ka-3 instead of Vipul Kumar on account of misreading of name. The doctor has termed this discrepancy as normal human error.
9. The postmortem report was received by Investigating Officer (I.O.) on 19.9.2001. After recording the statement of other witnesses, I.O. concluded that there was sufficient evidence against the appellant Santosh Kumar Shukla, therefore a charge sheet (Ext. Ka-19) was submitted against him.
10. It is pertinent to point out that blood stained and simple soil lifted from the place of occurrence. Blood stained knife, stated shirt of appellant and scarf (Gamcha) were all sent to forensic science laboratory, Lucknow. It is also pertinent to point out that the shirt and scarf (Gamcha) had already been washed by appellant prior to their recovery but faint blood stains were still visible. Forensic report confirmed this conclusion. The report says that human blood was found on shirt and scarf said to be worn by appellant at the time of stated murder. Some blood was also found on recovered knife and blood stained soil but their origin could not be ascertained due to disintegration.
11. The learned Trial Judge framed charge under Section 302 IPC against appellant Santosh Kumar Shukla on 29.11.2001. Accused appellant denied the charge and claimed to be tried.
12. Prosecution has produced five witnesses in support of their case. P.W.1 Pradeep Kumar Shukla (complainant/eye witness), P.W.2 Manogi Prasad Shukla (eye witness), P.W.3 constable Maan Chand Yadav, P.W.4 Dr. D.B. Singh (conducted postmortem) and P.W. 5 S.O. Ram Chandra Bharti (I.O.). Statement of appellant was recorded under Section 313 Cr.P.C. wherein he denied all allegations and claimed false implication due to previous enmity, though he did not give details of the said enmity. The learned Trial Judge concluded that there was sufficient evidence against appellant Santosh Kumar and held him guilty of offence under Section 302 IPC and accordingly convicted and sentenced as aforesaid. This judgment dated 27.11.2003 is under challenge before this Court.
13. Heard Sri Shekhar Srivastava, Advocate for appellant and Sri Ajeet Ray, learned A.G.A. on behalf of State.
14. Learned counsel for appellant has argued that prosecution has not adduced any independent witness despite their presence. He has argued that no person of vicinity was produced in support of prosecution case. Every witness admittedly had inimical relationship with appellant. His submission is that FIR was ante timed that it could not have been recorded at 6:30 pm. for the simple reason that P.S. Singramau was located almost 10 kms away from village Firozpur where stated occurrence took place. Counsel for appellant has also argued that no motive for this crime has been established by prosecution.
15. On the contrary Sri Ajeet Ray, learned A.G.A. has argued that appellant perceived that deceased Vipul Kumar was the illicit son of his uncle Yaduvansh. This perception was reportedly shared by several persons of his community as well as other villagers. Several villagers and people of their community hesitated to have any relationship with the family of appellant Santosh Kumar Shukla on account of this said illicit relationship. Prosecution has alleged that appellant had developed inimical and antagonistic attitude towards deceased Vipul Kumar because of this perception.
16. Learned A.G.A. has submitted that father of deceased was employed in Ludhiana, Punjab. It is submitted by the State counsel that recovery of blood stained knife from the place of occurrence; recovery of rubber tube of scooter and two cells, play things of deceased Vipul Kumar; recovery of blood stained cloths of appellant and corroborative forensic report and trustworthy eye witness account have established the charge against appellant Santosh Kumar.
17. Prosecution case primarily depends upon the eye witness account of two witnesses, namely, P.W.1 Pradeep Kumar Shukla and P.W. 2 Manogi Prasad Shukla. Both are related though they live separately. Incidentally, appellant is also member of same clan (Pattidar) of complainant Pradeep Kumar Shukla (P.W.1). Complainant has testified that at the time of incident he used to live with his maternal uncle at village Dhaniyamau where he was working as a peon in Bhola Nath Degree College. He was also living in a temple in Dhaniyamau providing assistance to the priest of temple Sri Rajeev Lochnacharya who was also Secretary of the school. He has clarified that he was working primarily in the temple though Secretary had promised him regular job in the college. This witness has stated that he used to visit his home village Firozpur frequently especially during holidays and vacations. He came to his residence in village Firozpur in the evening of 16.9.2001. He did not return back to Dhaniyamau even on 17.9.2001 because of some work at his parental home. His father was employed in Ludhiyana, therefore, it was necessary for him to visit his home frequently for household chores. On 17.9.2001 his another brother Vipul Kumar was playing in front of his house with rubber tube of a scooter and some battery torches while complainant, his mother Shobha Devi and Ragini were cutting fodder for animals from nearby agriculture farms. Suddenly Vipul Kumar cried and all of these persons rushed towards the source of this cry. His elder father (Tauji) Manogi Prasad Shukla (PW 2) also arrived on this place. Then they witnessed the horrific scene wherein appellant Santosh Kumar was found stabbing four years old Vipul Kumar. They tried to catch him. In fact P.W. 1 Pradeep Kumar Shukla chased him for some distance but of no avail. They came back to injured Vipul Kumar and found the dead body of this little boy. P.W. 1 Pradeep Kumar Shukla thereafter lodged FIR (Ext. Ka-1).
18. P.W. 2 Manogi Prasad Shukla has also testified in similar terms. He has reiterated the allegations of P.W. 1 Pradeep Kumar Shukla. A long, intense and searching cross examination was conducted with these two eye witnesses. Both witnesses remained unfazed and supported the prosecution evidence.
19. We have examined the testimony of these eye witnesses. Their evidence is of high quality, natural, in accordance with the normal human conduct and trustworthy.
20. Learned counsel for appellant has submitted that both witnesses were related to deceased Vipul Kumar. Several other witnesses were reportedly present on the spot and yet not a single independent witness of vicinity has been produced by prosecution. This according to prosecution is doubtful conduct. We do not agree with this argument of learned counsel for appellant. It is true that only two connected witnesses have been produced but the evidence of witnesses are not evaluated on account of their relationship with deceased. The evidence is evaluated on the basis of their quality. Fact of the matter is that both eye witnesses have admitted that even accused appellant Santosh Kumar Shukla is part of their extended family. Therefore, they had no reason or occasion to implicate appellant in a false case. It is true that evidence reveals that there was some tension in different branches of this clan (Pattidar). Appellant belongs to a different branch while P.W. 1 Pradeep Kumar Shukla belongs to a different branch. Both witnesses have admitted the existence of some tensions between two branches. But there is nothing to suggest that there was any serious enmity between the parties.
21. It is alleged that accused appellant thought that four years old deceased Vipul Kumar was the illicit son of his uncle Yaduvansh. He also believed that this tainted the reputation of his family and because of that some villagers and some members of this community had started keeping distance with them. According to eye witnesses this created fury and rage within appellant which ultimately impelled him to commit the murder of little Vipul Kumar.
22. May be, prosecution is correct in ascertaining the cause of anger of appellant or may be this claim is misplaced. The claim of enmity is one of the perception. Ordinarily, the reason of anger and cause of enmity lie locked in the chest of assailant. The other side can merely make guesses about the reason of attack but prosecution case cannot be thrown out merely because their conclusion in this regard is not completely established in Court, especially if it is the case of trustworthy direct evidence. In this case the prosecution and eye witnesses have proffered a reason for this attack. Considering the human nature, the reason is not totally out of place. But in this case, the question of motive itself has become secondary for the simple reason that two high quality eye witnesses of the event have established the misdeeds of accused appellant by trustworthy evidence.
23. It would not be out of place to repeat the well established legal maxim that evidence is weighed and not counted. Two eye witnesses have established the prosecution case with credible and trustworthy evidence. We cannot reject their evidence merely on the ground that they are partisan and not independent witness. It is trite that criminal cases are decided on the basis of available evidence. Courts have to evaluate the available evidence on record. If available evidence is sufficient to establish the guilt of accused, then courts cannot reject the prosecution evidence on the ground that some more evidence ought to have been adduced. We believe that prosecution has indeed established the motive in this case. They have also established the guilt of accused appellant by trustworthy eye witness account.
24. Learned counsel for the appellant has argued that FIR was ante-timed and that it was simply not possible to lodge FIR at 6:30 pm. at P.S. Singramau which was located at 10 kms away from village Firozpur, the place of occurrence. We do not agree with this contention of counsel for the appellant as well. The incident occurred at 4:30 pm. It was not difficult to travel 10 kms in two hours. P.W. 1 Pradeep Kumar Shukla, partly educated person, has testified that he wrote FIR in his home and left his residence within 10-15 minutes of the incident. He went to the police station on cycle. This testimony indicates that the complainant could have reached the police station within one hour, therefore, it was not impossible or even difficult to lodge the report by 6:30 pm. The allegation of ante-timing of FIR has not been established.
25. If we carefully peruse the entire proceedings conducted in the late evening of 17.9.2001 and in the morning of 18.9.2001 then it is quite clear that there was no occasion or opportunity to complainant and police personnel to concoct the prosecution case. The extract of G.D. (Ext. Ka-5) contains all the details of the crime. This entry was made immediately in aftermath of lodging of the FIR. This contains the crime number as well. Police personnel rushed to the place of occurrence immediately. They remained in the village Firozpur from 17.9.2001 till the evening of 18.9.2001. Their, return was also entered in the G.D. of concerned Police station at 6:30 pm. on 18.9.2001, the extract of which is available on record as Ext. Ka-18. During this period several steps were taken by police personnel. Inquest proceedings were conducted in the morning of 18.9.2001 because of darkness and lack of light in the village Firozpur. The statement of some witnesses, namely, P.W. 1 Pradeep Kumar Shukla and P.W. 2 Manogi Prasad Shukla were recorded. Inquest proceedings were conducted in the morning after the light broke out. Inquest report contains crime number as well as other details of the crime. Both P.W. 1 Pradeep Kumar Shukla @ Bablu and P.W. 2 Manogi Prasad Shukla also signed inquest report (Ext. Ka-2). Inquest report has described in detail the position of dead body, the place of occurrence and injuries found on the person of deceased.
26. We believe that there is no evidence on record to suggest that FIR was ante-timed. The claim of ante-timing of the FIR has to be established by evidence like any other allegation. This can be done either by some material from the prosecution evidence or otherwise but this allegation cannot be accepted without any material supporting it.
27. The blood stained knife used in the assassination of deceased was also recovered from the place of occurrence. FIR itself says that appellant Santosh Kumar Shukla threw knife and then fled from the spot. This blood stained knife was recovered by Police which was sent to forensic laboratory and forensic laboratory found some blood stains on this knife though they could not ascertain the origin of it because of disintegration.
28. The prosecution story is that deceased kid was playing with a rubber tube of scooter tyre and some battery cells. They too were found by I.O. on the spot. They were recovered. This further strengthens the prosecution story. The accused too was arrested immediately at 12:30 on the information furnished by informant. A blood stained shirt and a scarf (Gamcha) were recovered at the instance of appellant (Fard Ext. Ka-16). These two cloths were also washed by the accused appellant and still some blood stains were visible. Therefore, both these cloths were sent to forensic lab. Forensic lab found traces of human blood on these two cloths, further strengthening the prosecution case.
29. We have carefully examined all material on record especially the eye witnesses account and autopsy report (Ext.Ka-3). Medical report is completely consistent with the ocular testimony. It is pertinent to point out that this is a day light murder of a small kid in presence of family member. In fact appellant himself is a part of the same clan (Pattidar). There is no occasion for complainant and eye witnesses to falsely implicate a young boy of their clan and spare the real culprit. It is pertinent to point out that the contents of autopsy (Ext. Ka-3) and the testimony of P.W. 4 Dr. D.B. Singh have said that deceased Vipul Kumar was possibly done to death around 4:30 pm. on 17.9.2001. Autopsy was conducted on 18.9.2001 at 4:30 pm. Meaning thereby that autopsy too was conducted within 24 hours. Documentation done at the time of investigation leave no doubt about the timing of FIR. We believe that there is nothing on record to create any doubt about the prosecution evidence. Prosecution evidence has established its charge beyond all reasonable doubt.
30. In view of the above, the judgment and order dated 27.11.2003 passed by the Additional Sessions Judge, Court no. 6 Jaunpur in S.T. No.586 of 2001 arising out of Crime No.152 of 2001 under Section 302 IPC, P.S. Singramau, District Jaunpur does not warrant any interference by this Court. The criminal appeal is, accordingly, dismissed.
31. Let a copy of this order be sent to concerned Court through Sessions Judge, Jaunpur for compliance within ten days. The concerned court will report the compliance to this Court within a month thereafter.
Order Date :- 24.05.2017 Meenu