While upholding the acquittal of Union Minister of State for Home, Ajay Mishra Taini in a 23-year-old Prabhat Gupta murder case, the Allahabad High Court has in a most remarkable, robust, rational and recent judgment titled State of UP vs Ajai Mishra @ Taini And 3 Ors along with a connected criminal revision plea whose Neutral Citation No. is: 2023:AHC-LKO:34441-DB and cited in 2023 LiveLaw (AB) 157 that was pronounced most recently on May 19, 2023 has held that there was no perversity in the order of acquittal that was passed by the Trial Court as the lower Court didn’t miss the woods for the trees. It must be added here that with this we see that finding the prosecution’s theory to be unconvincing, the Division Bench of Hon’ble Mr Justice Attau Rahman Masoodi and Hon’ble Mr Justice Om Prakash Shukla dismissed the UP Government’s appeal against the acquittal order that was passed by the Trial Court in 2004 and so also the revision was dismissed. The judgment and order of acquittal dated March 29, 2004 under Section 302/34 IPC, acquitting all the accused/respondents was upheld and all the accused/respondents are acquitted of the charges that were leveled against them.
Introduction
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by Hon’ble Mr Justice Attau Rahman Masoodi for a Division Bench of the Allahabad High Court comprising of himself and Hon’ble Mr Justice Om Prakash Shukla sets the ball in motion by first and foremost putting forth in para 1 that, “Both the State and the de-facto Complainant are before this court challenging the order of acquittal of all the four accused/ respondents by the Trial Court in Sessions Trial No. 518/2001, 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 prosecution story had been developed from stage to stage to give colour to the prosecutions 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 No. 1624 of 2004 under section 378 of the Criminal procedure Code, the de-facto complainant has preferred Criminal revision No. 221 of 2004 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 vide this common judgment.” Facts of the case
To put things in perspective, the Division Bench envisages in para 2 that, “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 from the house of the informant at 3 pm on 8.7.2000 for going to the shop. On reaching the main road, the deceased was done to death by the two named culprits and the death occurred on the spot.”
As we see, the Division Bench observes in para 3 that, “The eye witnesses in the FIR were stated to have seen the occurrence in broad day light which according to the informant was probable in the background of some political rivalry and enmity. The registration of the FIR by the scribe Shri Krishna (HM-53) on 8.7.2000 at 3.30 pm had set the machinery of law in motion.”
As it turned out, the Division Bench specifies in para 4 that, “The action that followed immediately after lodging of the FIR was visiting the scene of occurrence by Investigating Officer and drawing up the site plan with reference to the dead body, noticing recovery of some articles inclusive of two empty cartridges, a pair of footwear and thereafter inquest report was prepared from 3.40 pm to 5 pm in presence of panchas. The inquest report significantly notices the injuries on the dead body and takes note of the site plan from where two empty cartridges etc were recovered. The oozing blood and the direction of fire arm injuries from right to left was also mentioned. The inquest report mentions handing over of the sealed dead body at 5 pm on 8.7.2000 to two police personnel for obtaining the postmortem report to definite the cause of death which according to the panchas had occurred due to fire arm injuries.”
Simply put, the Bench states in para 5 that, “The postmortem was conducted on 9.7.2000 at 11 am and the report was accordingly drawn. The deceased had sustained two gunshot wounds of entry and only one exit wound. Besides the deceased, who lost his life, no one was injured.”
It cannot be glossed over that the Division Bench observes in para 7 that, “The investigation was conducted in piecemeal by different officers. SI T.B. Singh conducted the investigation of the case from 8.7.2000 to 15.7.2000 and from 16.7.2000 to 18.7.2000 investigation was done by the team constituted under the order of the IG Zone and investigation was headed by Balvir Singh SIS (Security and Investigation Services). On assumption of investigation by the SIS team, on one day i.e. 19.7.2000 investigation was done by Hemant Singh, member of SIS team, however, from 20.7.2000 to 28.9.2000 investigation was conducted by R.P Tiwari of CBCID. The proceedings of investigation, if any, conducted between 28.9.2000 to 6.11.2000 are not clear from the record available before this Court. It is though apparent from the record that from 6.11.2000 to 13.12.2000 another R.P. Tiwari of SIS who after collection of evidence concluded the investigation with the submission of charge sheet against the accused persons.”
What also merits attention is that the Division Bench then wonders in para 8 stating that, “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.”
Quite glaringly, the Division Bench then lays bare in para 9 that, “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.”
Do note, the Division Bench notes in para 70 that, “In the instant case, the entry wound of deceased does not show of 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 aforesaid 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.”
In addition, the Division Bench points out in para 71 that, “Apparently, it has also come on record that Dharna pradarshan had been introduced at a later stage, just to show presence of Anurag Patel and Vinod Gupta (PW-2). PW-3 Sanjeev Gupta stated that 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 PW-3 Sanjeev Gupta and PW-2 Vinod Gupta with the deceased on the spot is not proved as the manner in which this presence has been told, is not proved.”
Be it noted, the Division Bench notes in para 72 that, “Hence, the presence on the spot of both the witness PW-3 Sanjeev Gupta and PW-3 Vinod Gupta is doubtful and not proved. So, hardly their statement can be taken into account. Deceased 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 PW-9 and also stated by PW-4 & PW-10 to PW1 at the time of Panchayatnama as has come in the testimony of PW-1, 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 place of proof. Recently, vide a Judgment dated 11.08.2022, a bench of Justice B R Gavai and P S Narasimha, held that “It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.” in the case of Criminal Appeal No. 25 of 2012 (Ram Niwas Vs State of Haryana).”
While citing a recent and relevant case law, the Division Bench then holds in para 73 that, “Thus, the Trial court rightly disbelieving the prosecution story has acquitted all the accused persons. It would be profitable to quote a judgment of the Hon’ble Apex Court in the case of Krishnegowda & ors Vs state of Karnataka, (2017) 13 SCC 98, wherein the apex court held as herein under:“32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad day light. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eyewitnesses will not tilt the benefit of doubt in favor of the accused but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases accused gets the benefit of doubt.
- It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, “witnesses are the eyes and ears of justice”. In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.””
Conclusion: Most significantly, the Division Bench then minces absolutely no words to indubitably hold in para 74 that, “This court finds that all the aforesaid aspects have been considered threadbare by the Trial Court. The 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, 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 learned Sessions Judge to be a plausible and sustainable view, especially when the Trial Court had the advantage of seeing and assessing the demeanour of witnesses.” What’s more, the Division Bench then unequivocally holds in para 75 that, “This 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.” Finally, the Division Bench concludes by holding in para 76 that, “As a sequel to above, the appeal as well as the revision are therefore dismissed. The judgment and order of acquittal dated 29.03.2004 in Sessions Trial No. 518/2001, 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.” In sum, the Allahabad High Court very rightly upholds the acquittal of Ajay Mishra Taini and 3 others in this leading case. The Court also did not find any perversity in the Trial Court’s order. Very rightly so!</code></pre></li>
Sanjeev Sirohi