Allahabad High Court Divided On Advocate's Conviction For Killing Wife In 1991; One Judge Acquits, Other Confirms Life Term

While Justice Salil Kumar Rai noted that the prosecution failed to prove the charge of murder beyond a reasonable doubt and acquitted the appellant, Justice Sandeep Jain found the evidence 'credible' and thus, upheld conviction and directed the accused to surrender within a month to serve life term.

Because the two judges differed both on reasoning and the final outcome, the matter has been placed before the Chief Justice for nomination of a third judge under Section 392 CrPC.

For context, the appeal challenged the April 1996 judgment and order of the Additional Sessions Judge, Fatehpur, which had convicted Shailendra Kumar Mishra (appellant) for shooting dead his wife Sunita Devi on July 26, 1991.

Case in brief

As per the prosecution's case, the deceased (Sunita Devi) was first married to the appellant's elder brother, who died in an air crash. She subsequently received Rs. 2 Lakhs from the Air Force and later married the appellant, her brother-in-law.

Thereafter, marital relations between the deceased and the appellant became strained as the appellant continuously pressed her to transfer her money and the landed properties in favor of the appellant. On July 26, 1991, when she refused his demand again, the appellant allegedly shot her from close range.

As per the FIR, lodged by deceased's brother (PW-1), he and a cousin heard the gunshot and they rushed toward the house and there they saw the appellant fleeing. They found the deceased alive but grievously injured and before dying on the way to the hospital, she narrated the incident to PW-1.

The defence, however, claimed that the deceased was involved in an illicit relationship with the brother-in-law of the informant.

It was strongly argued that on the day of the incident, when the appellant was going to 'settle scores' with his brother-in-law, the deceased tried to prevent the appellant which resulted in a scuffle and at that moment, the gun accidentally fired.

The appellant also denied having any financial motive as it was his stand that he had an independent income and that his wife's bank account had little balance for months.

Justice Salil Kumar Rai's opinion: Acquits the Accused

In a detailed analysis running through 23 pages, Justice Salil Kumar Rai rejected the prosecution narrative as he opined that the testimony of PW-1 was unreliable and he was inimical. He also noted that PW-1 had earlier lodged a false FIR accusing the appellant of abducting and murdering deceased's eldest son.

Justice Rai also referred to major improvements appeared in his testimony, including a later claim that he saw the appellant fire the gun, an assertion, he noted, was absent from both the FIR and his Section 161 statement.

Justice Rai noted that two eyewitnesses (PW-4 and PW-5) were 6 and 11 years old respectively at the time of the incident and there was a gap of about four and a half years before their evidence was recorded.

It also noted that after the incident, the children were under the guardianship of the first informant (PW-1) and there was a possibility that they were tutored by him.

Justice Rai also noted that bank account details were never investigated and evidence showed no clear motive. PW-1's own admissions revealed financial transactions and loans in which the deceased was guarantor and that he had adverse interests in some properties.

The judge also observed that the trial court did not disbelieve the allegation of deceased's illicit relationship with another person and therefore, the cause of quarrel suggested by the defence "cannot be ruled out".

Justice Rai also said that the explanation of accidental firing during a tussle cannot be rejected and the prosecution failed to negate it.

"The explanation of the appellant that the gun got accidentally fired because of the tussle can not be rejected if his admission is used as evidence to corroborate the testimony of P.W.-4 and P.W.-5. The admission of an accused and his explanation under Section 313 Cr.P.C. cannot be dissected and the inculpatory part cannot be accepted ignoring the exculpatory part. An admission cannot be split up and part of it used against the accused. An admission must be used either as a whole or not at all", Justice Rai opined.

He also pointed out that Justice Jain, in his separate opinion, had erred by accepting the 'incriminating' part (that the appellant fired) while rejecting the 'exculpatory' part (that it was an accident).

Importantly, Justice Rai strongly disagreed with Justice Jain's opinion that the appellant's explanation should be viewed differently just because he is a practicing advocate.

"In a criminal trial an admission can be suicidal for the accused and I have not been able to lay my hands on any judicial precedent which permits a court to split up an admission of the accused and accept the incriminating part ignoring the explanation only because the accused is an advocate. The approach adopted by my learned brother amounts to raising a presumption against the appellant because of his profession- an approach which is not permissible in criminal law and would also violate the fundamental rights of the accused", he remarked.

Accordingly, he set aside the conviction and acquitted the appellant.

In his 62-page judgment, Justice Sandeep Jain affirmed the conviction as it found the evidence of PW-4 & PW-5 (child witnesses) to be credible and consistent corroborating the prosecution case.

He found their testimony to be supported by the appellant's own Section 313 statement where he admitted that he had shot the deceased.

He noted that there was no evidence on record to prove that the deceased was having an extramarital affair and that the burden of proving such affair was upon the accused which he could not discharge.

Justice Jain found clear evidence of premeditation, which Justice Rai had not found. He highlighted that the appellant had loaded his gun after telling his wife to bring him a glass of water and did so before she returned.

"The loading of gun itself proves that accused had made up his mind that he will settle the matter today, itself. Otherwise, there was no need for the accused to load his gun, while he was present in his house. The loading of gun itself proves that accused premeditated that he will shoot Sunita, if she refused to accede to his demand".

Justice Jain found no injuries on deceased's hands or fingers that would indicate a scuffle over the barrel. He also did not find any provocation by the deceased.

He noted that the accidental-firing claim to be 'unbelievable' and concluded that the plea of the appellant, an advocate, of an accidental firing was skillfully crafted as an afterthought in order to escape from the credible ocular evidence against him.

Thus, he concluded that it was proved beyond reasonable doubt that deceased was intentionally killed from close range by the accused on her refusal to transfer property in his favor.

Justice Jain dismissed the appeal, upheld the life sentence and directed the appellant to surrender within a month.

Given the clear divergence between the two judges, the papers will now be placed before the Chief Justice u/s 392 CrPC so that the matter could be assigned to another judge.