Allahabad High Court
Chandra Bhushan Mishra & Another vs State Of U.P. on 1 February, 2010
Reserved
Criminal Appeal No.4641 of 2007
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Chandra Bhushan Mishra and another Vs. State of U.P.
Connected with
Criminal Appeal No.4642 of 2007
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Shiv Prakash Mishra alias Dablu Mishra and another Vs. State of U.P.
Hon. Rakesh Tiwari, J.
Hon. A.K. Roopanwal, J.
(Delivered by Hon. A.K. Roopanwal, J.) As both the above appeals arise out of the same judgment, hence, these are being decided by a common Judgment.
These appeals have been filed by the appellants Chandra Bhushan Mishra, Jai Prakash Mishra, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra against the judgment and order of conviction and sentence dated 13.7.07 passed by the then Additional District & Sessions Judge, Court No.3, Varanasi in S.T. No.384/99 whereby appellants Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra were convicted for the offence punishable under Section 302, 506, IPC and were sentenced to life imprisonment and a fine of Rs.5,000/- for the offence punishable under Section 302, IPC and 1 year R.I. for the offence punishable under Section 506, IPC. Appellants Chandra Bhushan Mishra and Jai Prakash Mishra were convicted for the offence punishable under Section 302/34, 506, IPC and were sentenced to life imprisonment and a fine of Rs.5,000/- for the offence punishable under Section 302/34, IPC and 1 year R.I. for the offence punishable under Section 506, IPC.
First informant Sanjay Kumar Mishra is the son of deceased Jitendra Nath Mishra, r/o Bahedawa, P.S. Mirza Murad, District Varanasi. He gave a written report at P.S. Mirza Murad alleging therein that he is studying in U.P. College at Varanasi and his father Jitendra Nath Mishra practices law also at Varanasi. Both used to go to Varanasi by train and used to come together to their house. They used to alight at Bahedawa halt in order to go to their village. Deceased was having land and Nali dispute with accused Chandra Bhushan Mishra and a case was pending between them due to which they were on inimical terms. On 8.1.09 he and his father Jitendra Nath Mishra (deceased) along with Rangnath Upadhyay, Sanjay Dwivedi and Ram Shanker Pathak left the train at Bahedawa halt and 2 started for their village on foot. At about 6.45 p.m. when they reached near Kharanza leading to their village, Chandra Bhushan Mishra, Jai Prakash Mishra, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra met them. Chandra Bhushan Mishra and Jai Prakash Mishra exhorted to kill Jitendra Nath Mishra. On their exhortation, Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra fired at the deceased with country made pistols. The accused were tried to be apprehended but they managed to escape. The assailants were recognised in the light of torches. The deceased received injuries and was taken to Kabir Chaura Hospital at Varanasi on scooter where he was declared dead. On the written report of the informant Chik FIR was written at P.S. Mirza Murad on 8.1.99 at 8.45 p.m. The investigation of the case was taken up by the then S.O. Mirza Murad S.I. Devendra Singh. He copied out the FIR and G.D. of the registration of the case, in the case diary got the Panchyatnama and other connected papers of the deceased prepared through S.I. B.B. Singh. He recorded the statement of the complainant at the police station and thereafter, came at the spot where on the pointing out of the first informant prepared site plan of the place of occurrence, exhibit Ka-8. He collected the blood stained and plain earth from the place of occurrence and also took into possession torch and briefcase of the deceased and prepared its memo. He also prepared the memo of torch of the informant. He recorded the statements of the witnesses of occurrence and after investigation submitted the charge sheet.
The case was committed to the court of Sessions by the then CJM, Varanasi where the appellants Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra were charged for the offences punishable under Section 302 and 506, IPC and appellants Chandra Bhushan Mishra and Jai Prakash Mishra were charged for the offences punishable under Sections 302/34 and 506, IPC. The appellants denied from the charges and claimed to be tried.
The prosecution in order to prove the charges examined P.W.-1 Sanjay Kumar Mishra (complainant of the case), who testified the prosecution version and proved the written report, exhibit Ka-1. He also proved the memo of briefcase and torch belonging to the deceased. He also proved the memo of his own torch, exhibit Ka-3. It was also stated by him that there is a drain towards the north of his house which was closed by the accused persons. The deceased, then filed a suit in the Civil Court. The deceased had also filed a case relating to land against the accused persons and on account of these cases the accused were having enmity with the deceased and his family.
3P.W.-2 Sanjay Kumar Dwivedi and P.W.-3 Rang Nath Upadhyay were also the so called eye witnesses, but they did not support the prosecution case and were declared hostile by the prosecution. P.W.-4 Dr. D.B. Singh was the Medical Officer, who conducted the postmortem of the dead body of the deceased on 9.1.99. He found the following ante mortem injuries on the person of the deceased:-
1. Fire arm entrance wound size 1 cm x 1 cm x chest cavity deep on back of chest at its middle 1 cm below root of neck, 1-1/2 cm contusion present surrounding the wound, underlying injuries. T vertebra fractured.
2. Fire arm exit wound size 1-1/2 cm x 1-1/2 cm on front of left side chest 2 cms outer to mid line at the level of left clavicle bone.
3. Fire arm entrance wound size 1 cm x 1 cm x chest cavity deep on Rt side back to chest. 15 cms below root of neck and 1 cm outer to mid line underlying 6th and 7th ribs fractured and right lung upper to be perforated first rib (1st ) and clavicle (Rt) fractured 1-1/2 cm contusion present surrounding the wound.
4. Fire arm exit wound size 1-1/2 cm x 1 cm on right side front of chest 4 cms outer to mid line at the level of Rt clavicle bone. This injury is connected to injury no.(3).
5. Abraded contusion size 2 cms x 1 cm on left side forehead, 2 cm above the left eyebrow and 1 cm away from mid line.
6. Abraded contusion size 1 cm x 1 cm on tip of nose more on Rt side.
He stated that the deceased had died of the injury inflicted on his chest. He also opined that injuries no.1 and 3 were sufficient to cause death. These were inflicted with some fire arm. The doctor also opined that the ante mortem injuries could have been inflicted on 8.1.99 at 6.45 p.m. i.e. at the time of the alleged incident.
P.W.-5 Constable Awadhesh Yadav is the police constable, who had taken the dead body for postmortem.
P.W.-6 Surendra Kumar Mishra @ Marut stated that he reached at the spot after hearing the fire shots. He found his father in injured condition and took him to Kabir Chaura Hospital where he was declared dead. Then, dead body was taken to the police station where Panchayatnama was prepared.
P.W.-7 Shravan Kumar Mishra is the witness of memo of briefcase and torch of the deceased and also of the memo of torch of the informant.
P.W.-8 Constable Baldev Singh is that police official who had scribed the Chik FIR and G.D. of the registration of the case.
4P.W.-9 S.I. Devendra Singh is the Investigating Officer of the case and whatever actions were taken by him have been stated above.
The appellants were examined under Section 313, Cr.P.C. in which they denied from the prosecution case. They produced D.W.-1 Kailash Nath Mishra and D.W.-2 Dr. S.K. Tripathi in their defence. D.W.-1 Kailash Nath Mishra stated that the information of the death of the deceased came to him at 8.00 or 8.30 p.m. On this information he, Sanjay Kumar Mishra (first informant) and P.W.-6 S.K. Mishra @ Marut reached at the spot and from the spot he reached at the police station where the deceased was lying in a Jeep. Thereafter, the deceased was taken to Kabir Chaura Hospital where he was declared dead. Then, all came back to P.S. Mirza Murad where Panchyatnama and other papers were prepared. D.W.-2 Dr. S.K. Tripathi had stated that the ante mortem injuries no.1 and 3 found on the dead body were caused with the same fire arm.
The trial court after assessing the evidence produced by the prosecution found the statement of P.W.-1 Sanjay Kumar Mishra fully believable and on its basis found the case of the prosecution proved beyond all the reasonable doubts against the appellants and convicted and sentenced them in the manner as stated above.
We have heard Mr. G.S. Chaturvedi, learned senior counsel assisted by Mr. P.N. Tripathi, learned counsel for the appellants, Mr. Karuna Nand Vajpayee for the State and perused the record.
It has been argued by Mr. Chaturvedi that the trial court had not properly assessed the evidence on record. The sole statement of Sanjay Kumar Mishra (first informant) could not be sufficient to prove the case beyond all the reasonable doubts, that there could be no occasion for P.W.-1 Sanjay Kumar Mishra to identify the assailants, that there being long standing enmity between the parties the appellants could have murdered the deceased by concealing their identity and thus, the story as propounded by the prosecution is not believable. It was also argued that the medical evidence on record does not support the statement of P.W.-1 Sanjay Kumar Mishra. The State counsel repelled all the above arguments.
It is no doubt true that out of the three so called eye witnesses two i.e. P.W.- 2 Sanjay Kumar Dwivedi and P.W.-3 Rang Nath Upadhyay had not supported the prosecution version and the only evidence in support of the prosecution case was the statement of P.W.-1 Sanjay Kumar Mishra, son of the deceased. As P.W.-1 is the son of the deceased, hence, he is no doubt an interested witness, but on this ground alone there can be no justification to discard his testimony outrightly. The only requirement for assessment is to scrutinise his statement with utmost 5 carefulness.
A perusal of the statement of P.W.-1 Sanjay Kumar Mishra would reveal that he used to go to Varanasi as he was studying there in the U.P. College as a student of P.G.D.C.A. The deceased was also practicing law at Varanasi, therefore, it is a believable fact that both would be going to Varanasi together and also returning back together by the same train. Thus, this statement of P.W.-1 Sanjay Kumar Mishra that at the time of occurrence he and his father came by train, alighted at Bahedawa halt and were proceeding towards their village together is a natural and believable statement and in view of this statement, the presence of P.W.-1 Sanjay Kumar Mishra at the time of incident and seeing the assailants committing the occurrence is also a believable fact. It is on the record that the torches of the deceased and the first informant were taken into possession by the police and thus, there could be no hindrance in identifying the assailants in the light of these torches. The witness gave the detailed description of the incident and his statement finds full support from the statement of the doctor, who had conducted the postmortem of the deceased. The FIR of the case was promptly lodged and it cannot be said that it had come in existence after due deliberations and it was made ante time. It is on the record that from the spot the deceased was taken to the hospital at Varanasi in injured condition where he was declared dead. It was very natural that the first informant had taken his father to hospital first in order to save his life and when he was declared dead, he after arranging a Jeep went to P.S. Mirza Murad to lodge the report. In view of the fact that the FIR of the case is a trustworthy document as there is nothing to cast doubt upon it this fact also makes the statement of P.W.-1 believable.
Thus, we are of the view, that the trial court was right in placing implicit reliance upon the statement of first informant.
So far as this argument of Mr. Chaturvedi is concerned that the appellants could have eliminated the deceased at some other time by hiding their identity, in that regard we are of the view that the mind of the appellants could not be read by anybody. If they had decided to commit murder on the day of occurrence, then who could have stopped them. When P.W.-1 Sanjay Kumar Mishra testifies the factum of murder by the assailants and he being the reliable witness of this fact, the above argument cannot be said to have any legs to stand.
From the perusal of the impugned Judgment it appears that the trial court had not discussed the statement of the witnesses produced by the defence. D.W.-1 Kailash Nath Mishra was produced to say that the occurrence had not taken place at that time which is said by the prosecution. In this regard we would like to say 6 that this witness is the relative of the accused Chandra Bhushan Mishra and thus, it is quite possible that in order to save the assailants he would have deposed in favour of the defence. We are of the opinion that it was not safe to place reliance upon this witness and if his statement was not discussed by the trial court, that would not in any way change the merits of the impugned Judgment.
D.W.-2 Dr. S.K. Tripathi was produced to prove that the murder was caused with one fire arm only and that it was a close range murder. So far as this point is concerned as to whether two fire arms were used or only one fire arm was used, in that regard the statement of the doctor is only an opinion and that opinion cannot be accepted unless the weapons were recovered. The statement of the doctor cannot be given weight over the ocular believable statement of P.W.-1 Sanjay Kumar Mishra. So far as this argument is concerned that injuries were inflicted from a close range while P.W.-1 Sanjay Kumar Mishra says otherwise, in that regard we are of the opinion that due to lapse of time the distance from which the firing was done could have been miscalculated by P.W.-1 Sanjay Kumar Mishra and on this account there could be no justification at all to discard his statement.
Thus, in view of the foregoing discussion, we are of the opinion that the trial court had rightly convicted and sentenced the appellants for the murder of the deceased and there is no point at all to interfere with the Judgment impugned before us. We find no merits in this appeal. It is, accordingly, dismissed.
Accused Shiv Prakash Mishra alias Dablu Mishra and Sujeet Kumar Mishra are in jail and are not required to surrender. Accused Chandra Bhushan Mishra and Jai Prakash Mishra are on bail. Their personal bonds and surety bonds are cancelled. They be taken into custody forthwith to serve out the sentence awarded to them by the trial court. A copy of the Judgment be sent immediately to the concerned CJM for compliance.
Dated:1.2.2010 T. Sinha.