Reserved Criminal Appeal No. 3682 of 2008 and Government Appeal No. 7731 of 2008. Case: 1.Ajai Prakash Mishra, 2.State of U.P. Vs 1.State of U.P., [Alongwith Criminal Appeal No. 2487 of 2008], 2.Ajai Prakash Mishra and Anr.. High Court of Allahabad (India)
| Case Number | Reserved Criminal Appeal No. 3682 of 2008 and Government Appeal No. 7731 of 2008 |
| Judges | Imtiyaz Murtaza and Naheed Ara Moonis, JJ. |
| Issue | Indian Evidence Act - Sections 32 and 106; Indian Penal Code - Sections 201, 302 and 306; Criminal Procedure Code (CrPC) - Sections 156(3), 161, 313, 313(4) and 315 |
| Judgement Date | August 05, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
Imtiyaz Murtaza, J.
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Challenge in Criminal Appeal No. 3682 of 2008 and connected Criminal Appeal No. 2487 of 2008 is to the judgment and order dated 11.4.2008 rendered by Additional Sessions Judge (F.T.C.) Room No. 20 Allahabad in S.T. No. 1154 of 2005, State v. Ajai Prakash Mishra and Ors. whereby the learned Additional Sessions Judge recorded verdict of conviction against Appellant Ajai Prakash Mishra under Section 302 and awarded imprisonment for life attended with fine to the tune of Rs. 5000/-. However, he was acquitted of the charge under Section 201 I.P.C. On the contrary, the Government Appeal has been preferred impugning the verdict of acquittal of accused under Section 201 Indian Penal Code, 1860 The Appellant Jaya Mishra was convicted under Section 302 I.P.C. and she was punished with sentence of imprisonment for life attended with fine to the tune of Rs. 5000/-. However, she was acquitted of the charge under Section 201 I.P.C.
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Since the above appeals originate from one and the same judgment, the same were heard together and are being decided by a composite judgment/order.
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The author of the F.I.R. is Smt. Archana Tulsiyani wife of deceased Deepak Tulsiyani and according to the written report lodged on 25.4.2005, she alleged that at about 12.30 in the intervening night of 24th and 25th April, 2005, her husband Deepak Tulsiyani had been shot dead by the Appellants. It was further alleged that at about 10.30 p.m., Appellant Jaya Mishra made a call to her husband asking him to come over to her residence situated in Tagore town. It is further alleged that her husband was not drunk when he left the house. It is further alleged that at about 11.45 p.m. She made a call to her husband and enquired why he was getting late upon which he informed that the Appellants were insisting to drink liquor and that he would be back within 15 to 20 minutes. It is further alleged that about 12.30, she received a telephonic call from Appellant Jaya Mishra in which she called upon her to rush to her (Appellant) house as Deepak Tulsiyani had been hit by a bullet. Upon receiving this information, she rushed to the house of Appellant but there was none at the said house. Immediately thereafter, a phone call was received asking her to rush to Ojha Nursing Home. Upon reaching the said nursing home, she saw her husband drenched in blood and he had received bullet injury in his head. The F.I.R. was registered at case crime No. 69 of 2005 under Section 302 I.P.C. at P.S. George Town and investigation of the case was taken over by Sri D.D. Shukla, Station Officer, P.S. George Town Allahabad.
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The aforesaid Station Officer conducted investigation of the case in the manner the details of which have been set out in the judgement of the court below. A team of ballistic expert was also called for from Lucknow which began its investigation on 27.4.2005. The police in the course of investigation also recovered pistol and magazine, one empty cartridge and four live cartridges and bullet and all the recovered items were sealed. The Investigating Officer also seized one pair of chappals, two mobile set and Santro car and the above items were entrusted to the care of Rajiv Nayyar, the brother-in-law of the deceased. It is further mentioned that the accused Ajai Mishra was arrested from his house at 1.30 p.m. on 28.4.2005 and on 30.4.2005, Appellant Jaya Mishra was taken into custody with the aid of Smt. Anjana Gupta, Station Officer, police station Mahila Thana. On 11.5.2005, it is mentioned, the statements of Panchnama witnesses were recorded. On 11.5.2005, the recovered items were docketed and sent for examination. On 20.5.2005, the statements of remaining witnesses of inquest were recorded. On the same day, statement of Dr. Satish Kumar Patel serving in Ojha Nursing Home and Dr. Mukul Singh serving in Raj Nursing Home were recorded. On 25.5.2005, statement of Km. Noori, maid-servant of Appellant was recorded. In ultimate analysis, the charge sheet was submitted in the court under Section 302 and 201 I.P.C. On 4.6.2005, the case was committed to the court of Sessions.
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The prosecution in order to substantiate its case, examined as many as 8 witnesses namely Anil Tulsiyani, P.W.1, Dr. (Major) Vipul Kumar, who medically examined the deceased as P.W.2, Dr. Shiv Prasad Gupta P.W.3, who conducted post mortem on the body of the deceased, Rajeev Nayyar P.W.4, H.C.P. Bhagwan Das P.W.5, S.I. Santosh Kumar Tiwari, who prepared inquest report, Archana Tulsiyani P.W.7 wife of deceased Deepak Tulsiyani and Investigating Officer D.D. Shukla P.W.8.
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The accused in their statements recorded under Section 313 Code of Criminal Procedure abjured the guilt and also incriminating evidence against them. They pleaded that they have been implicated in a false case and they claimed to be innocent. The accused in their statements set out a different version symptomatic of lack of good equation between the deceased and his wife. The accused stated that on 29.3.2005, Archna Tulsiyani had gone to Delhi along with her sister, her children and her maid servant Noori and she told her husband that she was going to Delhi to meet the brother-in-law of Deepak, namely Pramod Mishra but it was discovered that instead of reaching there on 30.3.2005, she reached the house of Pramod Misra on 3.4.2005 and this had created hiatus and had paved way for distraught relations between them. It is further stated that on 24.4.2005, the deceased has made a call to the Appellant and talked about strained relation between him and his wife upon which it was suggested to him that he should endeavour to smoothen and repair the frayed relations by offering to take her on a ride to a restaurant and also to picture hall and heeding to the advice, the deceased had taken his wife and children to Chandralok Cinema in the show scheduled between 9 to 12 p.m. but leaving the picture half way, they returned to their residence at Allahpur and from there Deepak came to their house but at that time the Appellants had gone to have dinner at Hot Stuff. After having dinner, they came to their house and after locking the door from inside, they went to bed for sleeping. At about 10.11 p.m., the deceased made a call on their land-line phone and when they picked up the phone and found it to be from the deceased since they were fed up listening to his grouse about his wife, they initially put the receiver back to cradle but again the deceased made the call upon which he advised him to come next day but the deceased again rang up and upon his insistence, the Appellant allowed Deepak inside his house. The deceased sat on Sofa placed in the drawing room before A.C. and began consuming liquor from the bottle which he had brought with himself and at the same time, was murmuring grouse against his wife. It is further alleged that the deceased was again advised to go back to his house but he continued to murmur the grouse against his wife. In between the period, the Appellants heard deceased exchanging hot words with his wife and amidst talks, the deceased also abused his wife and thereafter, whipped out pistol and shot at himself. The Appellant Ajai Mishra thereafter rang up Archana informing her about the incident and asked her to rush immediately. The Appellants denied that the deceased had lent any amount to them nor any item was taken by the Appellants on credit from the hardware shop of the deceased. They also denied any bickering with Deepak or Archana. The Appellants also stated in their statements under Section 313 Code of Criminal Procedure that immediately after the deceased had shot himself, he was rushed to nearby nursing home known as Ojha Nursing Home where Archana had also arrived and thereafter, on the insistence of Archana, the deceased was rushed to Preeti Hospital but when Dr. Kartikey Sharma refused to come over in the dead of night on the plea that after his abduction, he avoided going on in the night, the deceased was taken to Raj Nursing Home where the deceased attended to by Dr. D.R. Singh. From Raj Nursing Home, the deceased was rushed to S.R.N. Medical Hospital. It is further stated that after the treatment had commenced in Medical College, the Appellants at about 2.04 a.m. went to police station George Town and informed the police about the incident and gave a written report as well which the S.O. Sri D.D. Shukla kept in his pocket stating that he would do the needful and informed his higher ups on R.T. Set about the incident. They also stated that owing to some extrinsic pressure, the police did not record his report in G.D. and subsequently, the case under Section 302 I.P.C. was foisted upon them. At about 3 a.m., they were taken in police jeep initially to S.R.N. Hospital and from there they were taken to the place of incident and again they were taken to police station. Subsequently, the S.O. had a talk with his higher ups in the police department and he heard him saying that it was a case of suicide. Next day they were honourably let off at about 1.30 p.m. from the police station. The Appellants also stated that Archana on being inveigled by Anil Tulsiyani, who was an arch enemy of Deepak and further to screen herself from the offence under Section 306 I.P.C. and also regard being had to the fact that Sindhi community may not speak evil about her and also with avowed object of usurping lacs of rupees of L.I.C. Policy, concocted the false case of deceased being shot at by the Appellants. It was also stated that Anil Tulsiyani is stated to have been instrumental in the murder of father of Deepak Tulsiyani namely Kishan Lal Tulsiyani and on this count, Anil Tulsiyani was looked down upon in Sindhi community and also the family members of Deepak deceased and to wash out the stigma, Anil Tulsiyani enacted the entire drama.
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The Appellants in support of defence, examined Sri Rajendra Singh as D.W.1, Sub Inspector Sri R.K. Bhargava as P.W.2, Sri Brahmanand...
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