Allahabad High Court: In a government appeal filed by the State and criminal revision filed by the complainant against the order of acquittal of all the four accused including Union Minister of State for Home, Ajay Mishra ‘Teni' by the Trial Court for offences under Section 302 read with Section 34 of the Penal code, 1860 (‘IPC'), the division bench of Attau Rahman Masoodi* and Om Prakash Shukla, JJ. has said that evidence recorded in the present 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, the Court found no perversity in the order of acquittal passed by the Trial Court.
Therefore, it held 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.
In the present case, a student leader named Prabhat Gupta was shot dead near his house. Four people including Union Minister of State for Home, Ajay Mishra Teni were accused for the said murder.
The Court noted that the very presence of the eye witnesses for the purpose of proving complicity of the accused persons at the place of incident begins from the residential place of the informant. As per the prosecution story, Sanjeev Gupta (Prabhat Gupta's brother) started from his father's residence along with Vinod Gupta and were following the deceased Prabhat Gupta who had left the same house, after having meal, for shop nearly about the same time in the afternoon. Further, Sanjeev Gupta in his testimony stated that he spotted the four accused possessing firearms and two of them firing at the deceased in daylight on 08-07-2000.
After analysing the evidence , the Court said that the statement of Sanjeev Gupta about meeting Vinod Gupta at his house cannot be believed to be true, therefore the testimony of Sanjeev Gupta remains doubtful. The facts of dharna was introduced to make the presence of Vinod Gupta at the house of the informant as natural but the truth is that no such dharna was called on 08-07-2000 as corroborated by the statement of a witness.
The Court noted that Sanjeev Gupta was present along with the informant at the time of lodging of FIR, however his statement was not recorded at that time. Further, said that, although delay in recording of statement of eyewitness may not be fatal to the prosecution story, however the delay in recording of Sanjeev Gupta's statement would have to be viewed cautiously in the wake of other overwhelming factors like the statement of Vinod Gupta, another eyewitness named in the FIR, which is very different from his testimony.
The Court further noted that Sanjeev Gupta named both Ajay Misra and Subhas Mama as assailants, whereas Vinod Gupta only named Subhas Mama as assailant. Further, there is material discrepancy in the version of how these accused persons flee away from the place of occurrence. It was also noted that the story of having meals is also varying and the postmortem report, says that nothing was found in the stomach of the deceased and stated that the deceased had meals at least 5-6 hours before he sustained the fatal injury. Thus, the Court said that the story of having meal together by Sanjeev Gupta and Vinod Gupta is also highly unlikely.
After placing reliance on Swaran Singh v. State of Punjab, (2000) 5 SCC 668 and the doctor's opinion that gunshot must have been caused from a distance, the Court said that the as entry wound of deceased does not show any blackening, the gunshots must have been made from a distance of more than six feet.
The Court also noted that Sanjeev Gupta stated that the shop was not open due to Dharna Pradarshan. Hence, the statement in the FIR that the deceased was going to shop becomes untrue. 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.
Thus, the Court said that the theory that some unknown assailants came and fled after committing murder of the deceased on motorcycle as has come in evidence of other witnesses also, appears to be a probable story. Further, it said that the implication of the accused persons may be on account of rivalry, based on suspicion that they may have hand in the murder.
The Court said that the prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the guilt of the accused persons. Thus, it upheld the Trial Court decision of acquitting all the accused persons.
[State of UP v Ajai Mishra, 2023 SCC OnLine All 173, decided on 19-05-2023]
*Judgment Authored by: Justice Attau Rahman Masood
Advocates who appeared in this case :
Counsel for Appellant : Advocate A.H.Rizvi, Advocate Avanindra Singh Parihar,Government Advocate Nagendra Mohan, Advocate Sushil Kumar Singh
Counsel for Respondent : Advocate S.K. Shukla, Advoacate Armendra Pratap Singh, Advocate Brij Mohan Sahai, Advocate Pradeep Chaurasia, Advocate Purnendu Chakravarty, Advocate Salil Kumar Srivastava, Advocate Sumit Kumar Singh
