The present appeal challenges the judgment and order dated 25th
April 2019 passed by the High Court of Allahabad, thereby dismissing the
appeal filed by the present appellant and accused No.2 Rajesh,
challenging the judgment and order passed by the learned Additional Sessions
Judge, Jalaun in Sessions Trial No.223 of 2004, convicting the accused-Rajesh
under Section 302 of the Indian Penal Code, 1860 and sentencing him to
undergo rigorous imprisonment for life with a fine of Rs.20,000 and
convicting the appellant herein for offences punishable under Section 302 of100 the Indian Penal Code read
with Section 34 of the Indian Penal Code and sentencing him to undergo rigorous120 imprisonment for life with a fine of Rs.20,000.
The prosecution
case, as could be gathered, is that when the deceased Vineet along with
PW1 and PW3 were passing through the shop of one Raju, four accused
persons surrounded them. The present appellant exhorted the accused
No.2-Rajesh to kill deceased Vineet, after which the accused No.2-Rajesh fired
shots from the double barrel gun upon deceased Vineet, which hit him and he
fell down after getting injured and died on the200 spot.
The learned Senior Counsel appearing on behalf of the
appellant, submits that the trial court and the High Court have grossly erred
in convicting the appellant and maintaining the same respectively. He
submits that the rest of the eyewitnesses240 have turned hostile. Though
independent witness Raju, in front of whose shop the occurrence has
taken place, was examined by the Investigating Officer, he has not
been examined as the prosecution witness in the trial. He, therefore,
submits that solely on the basis of testimony of PW3, the conviction
would not be sustainable.
The learned counsel appearing on behalf of300 the respondent-State, submits that
there is no reason to interfere with the concurrent findings of
fact. She submits that since a coordinate Bench of this Court, vide
judgment and order dated 29th November 2019, has already dismissed the appeal
of co-accused Rajesh, the present appeal, arising out of the same judgment, is
also required to be dismissed. With the assistance360 of learned counsel for the
appellant and the respondent, we have scrutinized the material on record.
There is no doubt that the learned counsel for the respondent-State is
justified in submitting that the appeal of the co-accused has already been400 dismissed by this Court. However,
it is settled law that dismissal of a special leave petition does not
amount to affirmation of the view taken by the High Court or the trial court.
Since the leave is granted in this matter and that too prior to the date
on which the special leave petition of the co-accused Rajesh was
dismissed, we are entitled to scrutinize the evidence.
PW1 and PW5 have
not supported the prosecution case. The evidence of the480 Investigating Officer would reveal
that he had recorded the statement of Raju, the owner of paan shop, in front
of500 which the incident took place. He has not been examined as
prosecution witness. That leaves us only with the testimony of PW3. If his
evidence is found to be trustworthy, the appeal would fail. However,
in the event his evidence is found to be doubtful, the appellant would
be entitled to benefit of doubt.
We have
scrutinized the evidence of PW3 minutely. No doubt that he refers to an exhortation
made by the present appellant to Rajesh co-accused to kill the deceased.
However, it is to be noted that his statement is recorded after a period
of two months from600 the date of the occurrence. He admits in his evidence that he was
in his house for the said period of two months.
The distance
between the village and the police station is only six kilometres and
that too connected by a pucca road. His conduct during the said period
is also required to be taken into consideration. Though the police station was
at a distance of two kilometres from the place of occurrence, he chose not to
go to the police station to report about the incident during the entirety
of the period.
It is further to be noted700 that, though in the examination-in-chief, he states that all of
them were encircled by the accused persons, in the cross-examination720 he states that only deceased
Vineet was encircled by the accused and that they were at a distance of
5-6 paces.
The perusal of the
evidence of Investigating Officer would reveal that there is no
explanation as to why the statement of the witnesses was recorded belatedly.
The only explanation given by him is that he has recorded the statement
of these witnesses after the investigation was given to him.
We find that the inordinate
delay in recording the800 statement of the witnesses, coupled with no explanation to that
effect from the Investigating Officer and further the conduct of PW3 would
bring him in the category of witnesses who are not wholly reliable. In our
considered view, conviction on840 the sole testimony of such a witness, without there being any corroboration
to his evidence, would not be justified.
In that view of
the matter, the appellant is entitled to benefit of doubt. The appeal succeeds.
The impugned judgment and order is quashed and set aside. The
accused is acquitted of the charges charged with. The appellant-accused
is directed900 to be set at liberty forthwith, if his detention is
not required in any other case. The appeal is, accordingly,
allowed. Pending application, if any, shall stand disposed of.929
