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Depending on the facts, an act of commission/omission of the Investigating Officer can go to the adv

JAI PRAKASH.VS. STATE OF UTTAR PRADESH AND OTHERS., CRIMINAL APPEAL NOS. 1790-1791 OF 2019 ARISING OUT OF SLP(CRL.) NOS.269-70 OF 2019. – 28 November 2019.

The bench encompassing Justice R. BANUMATHI, Justice A.S. BOPANNA and Justice HRISHIKESH ROY collectively pronounced judgment on a slight deviation from the rule that any act of commission/omission of the Investigating Officer cannot go to the advantage of the accused.  The instant case is tagged along with CRIMINAL APPEAL NOS.1792-93 OF 2019 arising out of SLP (Crl.) Nos.288-89 of 2019.

The case of the prosecution:Complainant-Jai Prakash and deceased Ravi Prakash were real brothers. At 09.00 am on 17.11.1992, while returning from the shop after purchasing gutkha, deceased Ravi Prakash reached the front of flour mill of Shankar Teli, accused Bhupendra Yadav (A2) having double barrelled gun, accused Raju Teli (A4) armed with single barrelled gun and accused Lallu Lal Diwan (A1) armed with country made pistol, caught hold of Ravi Prakash and fired shot on the chest, leg and jaw. Appellant Jai Prakash (PW-1), Ajay Kumar (PW-3) and Sanjay Mishra rushed to the spot meanwhile the  three accused escaped. PW-1 contended that he saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of Shankar Teli with arms. They further stated that there was previous enmity between the family of appellant and accused Bhupendra Yadav which is the cause of murder of Ravi Prakash. However, the enmity was primarily with Om Prakash, another brother of the appellant and the deceased due to a publication issue. Investigation of the case was taken up by the Investigating Officer-PW-5-SI-Shobha Mani Tripathi and under his instructions, SI-R.N. Singh took sample of simple and blood-stained earth from the scene of occurrence and recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo. The dead body of Ravi Prakash was sent to hospital for post-mortem examination.

All the accused denied the charges and pleaded not guilty but upon consideration of the evidence, the trial court convicted accused Nos.1, 2 and 4 under Sections 302 IPC and 120B IPC and sentenced them to undergo life imprisonment. The trial court held, “that the evidence of eye witness-PW-1-Jai Prakash, brother of deceased and PW-3-Ajay Kumar are natural and acceptable.” Being aggrieved, the respondents preferred appeals before the High Court.  The High Court held the presence of PW-1 and PW-3 to be doubtful and unnatural. It pointed out that there was motive for Om Prakash to instigate his brother PW-1 to make false allegations against the accused and held that accused Nos.1, 2 and 4 deserved to be given benefit of doubt. The High Court allowed the appeals filed by the accused and did set aside their conviction and sentence passed by the trial court and acquitted them.

This is not the case of the prosecution. It is also not the case of the prosecution that the area was cleaned and somebody has removed the “empties”. In such view of the matter, the non recovery of “bursts and empty shells of cartridges” and “broken pieces of cartridges” from the scene of occurrence raises serious doubt about the actual place of occurrence. As pointed out earlier, any act of commission/omission of the Investigating Officer cannot go to the advantage of the accused.

Mr. R. Basant, learned Senior counsel appeared on behalf of the appellants. Mr. Basava Prabhu S. Patil, learned Senior counsel; Mr. P.K. Sharma and Mr. Kartikeya Bhargava, learned counsels appeared on behalf of the respondent. The appellants contended that the High Court erred in reversing the conviction and acquitting the accused. Per contra, the respondents justified the reversion of judgment by the High Court

After carefully considering the contentions, the Hon’ble Supreme Court observed:


If the accused were looking for vengeance of Om Prakash-brother of Ravi Prakash, why the respondents-accused allowed Jai Prakash (PW-1) to let go unharmed?

If the motive for the crime was accepted, then all brothers of OmPrakash would be targets; but here attack was on only the deceased brother.

Ravi Prakash was the electrician who attended the decoration work and all, why didn’t he stay with his prospective clients (PW-3) when they had come to discuss the same?

Gutkha was available right near his house then why should he go to a shop located at distance of 150 – 200 steps away from the house?

Whether there was scuffle between Ravi Prakash and the respondents-accused was an integral part of the main incident and raises serious doubts about the prosecution case.

The discrepancy between the medical evidence and the oral evidence again raised doubts.

There were also several lapses in the investigation of the case including non-recovery of “empties” fired from the guns on the deceased, non-recovery of fire arms used by the respondents.

When the Investigating Officer took care even to recover packet of kissan gutkha from the scene of occurrence, the “empties” of the fired cartridges were not recovered. This vital omission was not explained.

An elaborately written FIR was registered immediately after the occurrence of the crime (9:00 am.) i.e. at 09.30 am.

The non-recovery of “bursts and empty shells of cartridges” and “broken pieces of cartridges” from the scene of occurrence raises serious doubt about the actual place of occurrence.

It relied on the decision in State of Uttar Pradesh v.Punni and others and held that the duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion

Thereafter, the Court came to a conclusion and pronounced the following:

“The High Court observed that PW-3 is a chance witness and expressed doubts about the presence of PW-3 in the scene of occurrence on17.11.1992 and we do not find any good reason to take a different view. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. In the present case, the High Court has analysed entire evidence and recorded its finding as to how the trial court has gone wrong in not appreciating the material inconsistencies and the same does not suffer from any infirmity warranting interference with the impugned judgment. Criminal Appeal Nos.2403 and 5829 of 2005 in the High Court is affirmed and the criminal appeals arising out of SLP(Crl.) Nos.269-70 of 2019 filed by the appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.)Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand dismissed.”

Jumanah Kader

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