Criminal Appeal No. 932 OF 2002
Markandey Katju, J
21. These two
appeals have been filed against the impugned judgment dated 1.3.2002 of
the Allahabad High Court in Criminal Appeal No. 482 of 1981.
2. One of the
appeals has been filed by the complainant and the other by the State
3. Heard learned
counsel for the parties and perused the record.
4. The prosecution
case as disclosed in the FIR lodged by Anil Prakash Shukla (PW1) was
that about 1-1/2 years prior to the occurrence in question Atul Prakash
Shukla, brother of the first informant was beaten by accused Arvind
Shukla and despite having assaulted him, accused Arvind tried to
implicate Atul Prakash in a false case but could not succeed. Since then
Atul Prakash Shukla and Arvind were on inimical terms. It was further
alleged that on 21.10.1979 first informant Anil Prakash Shukla and his
brother Atul Prakash Shukla, deceased in this case, were going to their
residential house after taking a round in the market and when they were
in front of the house of Shyam Babu Sharma in Mohalla Gumti Qasba Auriya
They cried that Atul be killed whereupon accused Arvind gave one knife
blow on Atul.
He ran crying and
fell down on the Chabutra of Shyam Babu Sharma. Besides the first
information, the incident was witnessed by Dinesh Shukla, Ramesh Kumar
Tripathi and Laljee Chaurasiya and the accused persons were identified
by electric light. The accused persons ran away when challenged. Anil
Prakash along with the witnesses came on the Chabutra where Atul was
lying injured. He sent Laljee Chaurasiya to call his father who
immediately arrived there and asked Anil Prakash Shukla to lodge the
report. He also carried Atul to the police station in a rickshaw leaving
Anil Prakash (PW1) on the spot. Anil Prakash Shukla scribed the report
Ext. Ka 1 and lodged the same at police station Auraiya at 8.10 P.M. The
police Station was situated only at a distance of about 3 furlongs from
the place of occurrence.
On the written
report of Anil Prakash Shukla, a case under Section 307 IPC was
registered against Arvind Shukla, Virendra Dubey and Anil @ Pappu in the
General Diary at Sl. No. 36, which also indicates that injured Atul had
reached the police station along with the first informant Anil Prakash
Shukla. Injured Atul was sent to Hallet Hospital, Kanpur with Constable
536 Ram Prakash who also carried with him the Chithi Majroomi. On
account of a strike, Atul could not be admitted in Hallet Hospital,
therefore, he was taken to Ursula Hospital, Kanpur. Atul's father (PW2)
Ram Sewak Shukla accompanied Atul when he was taken to Kanpur in a bus.
5. Dr. S.N. Sharma
(PW6) of Ursula Hospital examined the injuries of Atul at 11 P.M. on
21.10.1979 and found the following injuries:-
i) Incised wound
3.00 cm x = cm x bone deep on left side of scalp 7.0 cm above left ear.
ii) Incised wound 2 = cm x 2.00 cm x 1 = cm on front of left shoulder
iii) Incised wound 3.00 cm x 1 = cm x cavity of abdomen deep on right
side of abdomen about 7.00 cm above umbilicus. X-ray advised.
iv) Incised wound 4.00 cm x 2 = cm x 2.00 cm on middle aspect of front
of left forearm about 5.00 cm below left elbow.
v) Incised wound 4 = cm x 2 = cm x 2.00 cm about 1 cm below the medial
of injury No. 4.
6. The prosecution
mainly relied on the evidence of the sole eyewitness Anil Prakash Shukla
(PW1) as well as the alleged dying declaration of the deceased Atul. The
question is whether these should be believed or not.
7. As regards the
alleged dying declaration before the Magistrate (Ex. Kha 1), it has been
pointed out by the High Court that the Magistrate before whom the said
dying declaration was said to have been recorded, was not produced as a
witness before the learned Sessions Judge and hence the accused did not
have an opportunity to cross examine the Magistrate. Moreover, it may be
mentioned that the deceased died several days after the incident.
Deceased Atul Prakash stated before the Investigating Officer on
9.11.1979 i.e. 20 days after the incident that he had been tutored to
give an incorrect statement before the Magistrate. The Magistrate was
neither cited as a witness in the charge-sheet nor produced at the
trial. Hence, the High Court disbelieved the dying declaration.
8. We fully agree
with the view taken by the High Court that under the circumstances the
alleged dying declaration made before the Magistrate is unreliable. Atul
Prakash stated before the Investigating Officer on 9.11.1979 that while
he was brought in a bus to Kanpur he was tutored by his father, brother
and other accompanying persons to give a distorted and incorrect version
about the incident.
9. As regards the
evidence of the sole eyewitness, that too, has been disbelieved by the
High Court. As pointed out by the High Court, Anil Prakash (PW1), was
not a natural witness as per his own showing and he had animosity
against Arvind Shukla. His presence at the scene of occurrence was by a
sheer chance. Anil (PW1) and Atul (deceased) left their homes
separately. Anil had not accompanied the deceased nor any programme was
prefixed regarding the time of his coming back. He admitted in his
deposition before the Court that it was by a sheer co-incidence that the
deceased met him in front of the shop of doctor Ram Babu Bajpai. His
house was undoubtedly situated at a far distance from the place of
occurrence and hence his presence at the scene of occurrence was by a
10. Apart from that,
there is inconsistency between the version given in the FIR and the
statement of Anil Prakash (PW1) before the trial court. In the FIR it is
only stated that accused Arvind inflicted a knife blow on Atul, but in
his deposition before the trial court, PW1 stated that accused Arvind
inflicted knife blows on Atul while Anil @ Pappu also inflicted knife
blow on Atul. Thus the statement in court is an improvement on the
version given in the FIR in which it was only stated that Arvind above
inflicted a knife blow on Atul, but there was no mention in the FIR that
Anil @ Pappu also inflicted knife blows on Atul.
11. As rightly held
by the High Court, it seems that after coming to know of the medical
report for the first time at the trial court, the witnesses improved
their version given in the FIR.
12. The High Court
has given the benefit of doubt to accused Arvind Shukla and we see no
reason to take a different view. The appeals are accordingly dismissed.
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