http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  830 of 2002

PETITIONER: Anil Prakash Shukla

RESPONDENT: Arvind Shukla

DATE OF JUDGMENT: 01/05/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO. 932 OF 2002

State of Uttar Pradesh                                          ..        Appellant

       -vs-

Arvind Kumar                                                    ..        Respondent

MARKANDEY KATJU, J.

1.      These two appeals have been filed against the impugned  judgment dated 1.3.2002 of the Allahabad High Court in Criminal  Appeal No. 482 of 1981.   

2.      One of the appeals has been filed by the complainant and the  other by the State Government.

3.      Heard learned counsel for the parties and perused the record.

4.      The prosecution case as disclosed in the FIR lodged by Anil  Prakash Shukla (PW1) was that about 1-1/2 years prior to the  occurrence in question Atul Prakash Shukla, brother of the first  informant was beaten by accused Arvind Shukla and despite having  assaulted him, accused Arvind tried to implicate Atul Prakash in a false  case but could not succeed.  Since then Atul Prakash Shukla and  Arvind were on inimical terms.  It was further alleged that on  21.10.1979 first informant Anil Prakash Shukla and his brother Atul  Prakash Shukla, deceased in this case, were going to their residential  house after taking a round in the market and when they were in front of  the house of Shyam Babu Sharma in Mohalla Gumti Qasba Auriya  accused Arvind @ Pappu and Virendra Dubey suddenly appeared there.   They cried that Atul be killed whereupon accused Arvind gave one  knife blow on Atul.  He ran crying and fell down on the Chabutra of  Shyam Babu Sharma.   Besides the first information, the incident was  witnessed by Dinesh Shukla, Ramesh Kumar Tripathi and Laljee  Chaurasiya and the accused persons were identified by electric light.   The accused persons ran away when challenged.   Anil Prakash along  with the witnesses came on the Chabutra where Atul was lying injured.   He sent Laljee Chaurasiya to call his father who immediately arrived  there and asked Anil Prakash Shukla to lodge the report.   He also  carried Atul to the police station in a rickshaw leaving Anil Prakash  (PW1) on the spot.  Anil Prakash Shukla scribed the report Ext. Ka 1   and lodged the same at police station Auraiya at 8.10 P.M.  The police  Station was situated only at a distance of about 3 furlongs from the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

place of occurrence.  On the written report of Anil Prakash Shukla, a  case under Section 307 IPC was registered against Arvind Shukla,  Virendra Dubey and Anil @ Pappu in the General Diary at Sl. No. 36,  which also indicates that injured Atul had reached the police station  along with the first informant Anil Prakash Shukla.  Injured Atul was  sent to Hallet Hospital, Kanpur with Constable 536  Ram Prakash who  also carried with him the Chithi Majroomi.  On account of a strike, Atul  could not be admitted in Hallet Hospital, therefore, he was taken to  Ursula Hospital, Kanpur.  Atul’s father (PW2) Ram Sewak Shukla  accompanied Atul when he was taken to Kanpur in a bus.

5.      Dr. S.N. Sharma (PW6) of Ursula Hospital examined the injuries  of Atul at 11 P.M. on 21.10.1979 and found the following injuries:-

i)      Incised wound 3.00 cm x = cm x bone deep on  left side of scalp 7.0 cm above left ear.

ii)     Incised wound 2 = cm x 2.00 cm x 1 = cm on  front of left shoulder joint

iii)    Incised wound 3.00 cm x 1 = cm x cavity of  abdomen deep on right side of abdomen about  7.00 cm above umbilicus.  X-ray advised.  

iv)     Incised wound 4.00 cm x 2 = cm x 2.00 cm on  middle aspect of front of left forearm about  5.00 cm below left elbow.

v)      Incised wound 4 = cm x 2 = cm x 2.00 cm  about 1 cm below the medial of injury No. 4.  

        6.      The prosecution mainly relied on the evidence of the sole  eyewitness Anil Prakash Shukla (PW1) as well as the alleged dying  declaration of the deceased Atul.  The question is whether these should  be believed or not.     

7.      As regards the alleged dying declaration before the Magistrate  (Ex. Kha 1), it has been pointed out by the High Court that the  Magistrate before whom the said dying declaration was said to have  been recorded, was not produced as a witness before the learned  Sessions Judge and hence the accused did not have an opportunity to  cross examine the Magistrate.  Moreover, it may be mentioned that the  deceased died several days after the incident.  Deceased Atul Prakash  stated before the Investigating Officer on 9.11.1979 i.e. 20 days after  the incident that he had been tutored to give an incorrect statement  before the Magistrate.  The Magistrate was neither cited as a witness in  the charge-sheet nor produced at the trial.  Hence, the High Court  disbelieved the dying declaration.

8.      We fully agree with the view taken by the High Court that under  the circumstances the alleged dying declaration made before the  Magistrate is unreliable.  Atul Prakash stated before the Investigating  Officer on 9.11.1979 that while he was brought in a bus to Kanpur he  was tutored by his father, brother and other accompanying persons to  give a distorted and incorrect version about the incident.                          9.     As regards the evidence of the sole eyewitness, that too, has been  disbelieved by the High Court.  As pointed out by the High Court, Anil  Prakash (PW1), was not a natural witness as per his own showing and  he had animosity against Arvind Shukla.  His presence at the scene of  occurrence was by a sheer chance.  Anil (PW1) and Atul (deceased) left  their homes separately. Anil had not accompanied the deceased nor any  programme was prefixed regarding the time of his coming back.  He  admitted in his deposition before the Court that it was by a sheer co- incidence that the deceased met him in front of the shop of doctor Ram

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

Babu Bajpai.  His house was undoubtedly situated at a far distance  from the place of occurrence and hence his presence at the scene of  occurrence was by a sheer chance.          

10.     Apart from that, there is inconsistency between the version given  in the FIR and the statement of Anil Prakash (PW1) before the trial  court.  In the FIR it is only stated that accused Arvind inflicted a knife  blow on Atul, but in his deposition before the trial court, PW1 stated  that accused Arvind inflicted knife blows on Atul while Anil @ Pappu  also inflicted knife blow on Atul.  Thus the statement in court is an  improvement on the version given in the FIR in which it was only  stated that Arvind above inflicted a knife blow on Atul, but there was  no mention in the FIR that Anil @ Pappu also inflicted knife blows on  Atul.     

11.     As rightly held by the High Court, it seems that after coming to  know of the medical report for the first time at the trial court, the  witnesses improved their version given in the FIR.                               

12.     The High Court has given the benefit of doubt to accused Arvind  Shukla and we see no reason to take a different view.  The appeals are  accordingly dismissed.