The Lucknow Bench of the Allahabad High Court has dismissed the state government’s appeal against the acquittal of Union Minister of State for Home Ajay Mishra Teni in the Prabhat Gupta murder case.
The Division Bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order while hearing a Government Appeal filed by the State of UP.
Both the State and the de-facto Complainant are before the court challenging the order of acquittal of all the four accused/ respondents by the Trial Court in Sessions Trial, under section 302/34 IPC, wherein the Trial Court, while acquitting these accused persons of all the charges concluded vide an order dated 29.03.2004, as inter-alia:-
“123. On the basis of above attempted discussion, prosecution has utterly failed to prove its case and it does not inspire any confidence. Presence of the eye witnesses on the spot is not proved and the prosecution story had been developed from stage to stage to give colour to the prosecution’s story. Prosecution story is inconsistent to medical evidence and prosecution story which has come later, is not in support of the FIR and for these reasons, I am of the opinion that prosecution story and evidence led in this support at all not credible and all the accused persons in this case must be acquitted of all the charges levelled against them in this case.”
While the state has filed Criminal Appeal under section 378 of the Criminal procedure Code, the de-facto complainant has preferred Criminal revision under section 397 r/w 401 of the Criminal procedure Code. Since, both the proceedings engaging the attention of this court, arise out of the same impugned order and lead to the same facts & circumstances, they are being dealt and disposed of via this common judgment.
The appeal at hand filed by the State under Section 378 CrPC relates to the murder of one Prabhat Gupta alias Raju of which FIR was lodged by one Santosh Gupta (father) at Tikonia Police Station, District Lakhimpur Kheri on 8.7.2000 at 3.30 pm.
The hearsay information giving rise to the FIR shows presence of four culprits at the time of incident mentioned in the FIR who were identified by two eye witnesses named therein. The information states that the deceased had left the house of the informant at 3 pm on 8.7.2000 to go to the shop. On reaching the main road, the deceased was shot to death by the two named culprits and the death occurred on the spot.
The eye witnesses in the FIR were stated to have seen the occurrence in broad daylight which according to the informant was probable in the background of some political rivalry and enmity.
According to the doctor, death occurred due to shock and haemorrhage as a result of ante mortem injuries and one bullet was recovered from the dead body.
Until the stage of investigation many aspects shock to normal prudence like if the timing of FIR was so prompt then why the postmortem report was prepared a day later and why the recording of statements under Section 161 CrPC was delayed.
The delay in the arrest of culprits and shifting of investigation from one agency to another speak large. The investigation officer in order to bring accuracy in the matter of place of occurrence prepared a second site plan on 26.11.2000 but the recovery made was not taken aid of to explore the truth for the two cartridges and one bullet recovered were not subjected to any ballistic report. The measured distance in footsteps from the house of informant upto the point of occurrence in the two site plans stands at variance and the directional route also varies.
After cognizance, when it came to the stage of framing the charge before the court of session, charge simpliciter under Section 302 IPC was framed only against the two accused persons attributed the role of firearm injuries whereas, the other two were tried for the same offence with the aid of Section-34 IPC. The place of occurrence in the frame of charge is mentioned within the limits of Tikonia town and is not circumscribed within either of the two site plans.
The accused persons abjured their guilt and claimed trial. The case was thereafter transferred to the court of Addl Sessions Judge/Fast Track and by order of the Court passed on 23.2.2004, the trial was transferred to the court of Sessions Judge where day to day hearing was done and the same concluded on 24.3.2004.
The Court noted that,
In the case, the entry wound of the deceased does not show any blackening, the doctor had opined that gunshot must have been caused from a distance. If we examine this finding on the basis of analysis made by the Apex Court, we will not be able to hold that the story of prosecution that gunshot injury was caused from a distance of merely one step to be trustworthy. Thus keeping in view the observations of the apex court vis-a-vis the opinion of the doctor, the gunshots must have been made from a distance of more than six feet.
Apparently, it has also come on record that Dharna pradarshan had been introduced at a later stage, just to show the presence of Anurag Patel and Vinod Gupta. Sanjeev Gupta stated that the shop was not opened due to Dharna Pradarshan. Hence, case of FIR that deceased was going to shop, becomes untrue and since the happening of Dharna Pradarshan has also not been proved, the presence of both the ocular witness Sanjeev Gupta and Vinod Gupta with the deceased on the spot is not proved as the manner in which this presence has been told, is not proved.
Hence, the presence on the spot of both the witnesses Sanjeev Gupta and Vinod Gupta is doubtful and not proved. So, hardly their statement can be taken into account. Death was done to death on the spot. Thus, the theory which has come that some unknown assailants came and fled after committing murder of the deceased on motor cycle as has come in evidence of T.B Singh and also stated by Shiv Kumar & Jagdish Prasad Yadav to Santosh Gupta at the time of Panchayatnama as has come in the testimony of Santosh Gupta, appears to be a probable story and implication of the accused persons may be on account of Ranjish (rivalry) and also on the basis of suspicion that these accused person may have hand in the murder. However, suspicion cannot take the place of proof.
The court found that all the aforesaid aspects have been considered threadbare by the Trial Court. The evidence recorded in the case has been appreciated in its correct perspective and the Trial court has at no point of time missed the woods of the tree. Thus, we do not find any perversity in the order of acquittal passed by the Trial Court and in any case, the law presumes double presumption in favour of the accused after a due adjudication by the trial Court. Further, on recording of the findings as aforesaid, we find that the prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the one and only conclusion, i.e, the guilt of the accused persons.
“In that view of the matter, we find that the judgment and order of the lSessions Judge to be a plausible and sustainable view, especially when the Trial Court had the advantage of seeing and assessing the demeanour of witnesses.
The court has also recorded its independent finding and holds that the theory put forth by prosecution that the four accused persons were liable for causing death of the deceased is unconvincing and shorn of evidence proved beyond reasonable doubt”,the Court observed while dismissing the appeal.
“The judgment and order of acquittal dated 29.03.2004 in Sessions Trial, under section 302/34 IPC, acquitting all the accused/ respondents is upheld and all the accused/ respondents are acquitted of the charges levelled against them. The bail bonds, if any, shall stand discharged”, the Court ordered.