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IN THE HIGH COURT OF ALLAHABAD
Honble S. S. Kulshreshtha, J. , Honble Barkat Ali Zaidi, J.
SUBHASHH KUSHWAHA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Criminal Appeal 352 Of 2005
Decided On : 04/27/2007
Indian Penal Code - Conviction under Section 302 - Summary of Acts and Sections: Indian Penal Code, Section 302 - The court discussed the evidence and testimonies of the witnesses, the interpretation of the medical evidence, and the reliance on the testimony of the eye witnesses. The court affirmed the conviction based on the testimonies of the witnesses and the lack of conflict between the ocular testimony and the medical evidence.
Fact of the Case:
The case involved the conviction of the appellant under Section 302 of the Indian Penal Code for the murder of his father and nephew. The prosecution alleged that the appellant had demanded money from the deceased and subsequently assaulted and killed them.
Finding of the Court:
The court found the appellant guilty based on the consistent and clear testimonies of the witnesses, the lack of delay in lodging the FIR, and the absence of conflict between the ocular testimony and the medical evidence.
Issues: The issues revolved around the credibility of the witnesses, the interpretation of the medical evidence, and the defense's contentions regarding the involvement of the accused in the crime.
Ratio Decidendi: The court relied on the clarity and consistency of the testimonies of the witnesses, the absence of delay in lodging the FIR, and the lack of conflict between the ocular testimony and the medical evidence to affirm the conviction of the appellant.
Final Decision: The court affirmed the conviction of the appellant under Section 302 of the Indian Penal Code and dismissed the appeal.
( 1 ) CHALLANGE in this appeal is to the judgment dated 11. 1. 2005 passed by the Addl. Sessions Judge, Fast Track Court , Sonebhadra in S. T. No. 132 of 2002, whereby he convicted the appellant under Section 302 Indian Penal Code and awarded him a sentence of imprisonment for life and to pay a fine of Rs. 5000/- and in default to further undergo imprisonment for two years.
( 2 ) ACCORDING to the prosecution version, deceased Ganga Ram has two sons, one Subhash who is the accused while Shri Ram, who is the informant in this case. Shri Ram had two sons, elder Raj Narayan and the younger Sanjay. Ganga Ram and Sanjay are the deceased of this case.
( 3 ) GANGA Ram had 7-8 Bighas of land in village Bharkana, which he had divided ten years ago in three parts between himself, Shri Ram and Subhash. Thereafter, Subhash separated and his mother Jayanti Devi started living with him, while Ganga Ram continued to live with his elder son, Shri Ram. For about a month before the occurance, Jayanti Devi shifted and started living with her elder son Shri Ram.
( 4 ) IT is alleged that two months prior to the occurrence, the informant purchased a Tractor in the name of his son Sanjay. Accused Subhash suspected that the Tractor was purchased out of the funds of Ganga Ram , therefore, he started demanding Rs. 50,000/- from Ganga Ram and threatened in case, the money was not paid, he will kill him.
( 5 ) IT is alleged that on 10. 08. 2002 around 8 Oclock in the night Ganga Ram, father of the informant, was on the way to his house, from the shop of the informant for taking meals, informant following his father, and when Ganga Ram, took a turn from the way towards the house, accused Subhash assaulted Ganga Ram with a Spear, which pierced his thigh and stuck into it, Ganga Ram then fell down and raised alarm calling Sanjay for help, and then, accused landed Gandasa blows on Ganga Ram. The informant also started crying. Meanwhile Sanjay came out of the house and accused Subhash leaving behind Ganga Ram assaulted with a Gandasa and killed him at the spot in consequence whereof , his head was severed from the body. The cries raised attracted co-villagers Sita Ram and others on the place of occurrence and seeing them, Subhash ran away. The incident was also witnessed by his wife and mother, who had also come out of the house alongwith Sanjay after hearing screams. Dead bodies of Ganga Ram and Sanjay were lying out side the house.
( 6 ) SHRI Ram went to the police station in the same night and filed a written report Ex. Ka-1 of the incident at P. S. Pannuganj at 11. 30 , on the basis of which Constable Moharrir Hari Prasad Dwivedi, prepared chik FIR Ex. Ka-23 and made an entry Ex. Ka-24 in the G. D. , P. W. 6 S. I. Pradeep Kumar Chaudhary investigaion officer recorded the statement of informant Shri Ram, and proceeded to the place of occurrence along with the informant and another police officer at 12. 05 P. M.
( 7 ) SINCE it was drizzling, the inquests could not be prepared and only the statements of Smt. Ghana wife of the informant and that of Smt. Jayanti Devi were recorded.
( 8 ) P. W. 6 S. I. Praveen Kumar inspected the place of occurrence in the next morning at 6. 05 A. M. , prepared the site plan Ex. Ka-21 and got the Panchnama Lash Ex. Ka-3 and Ex. Ka- 4 of Ganga Ram Sanjay prepared by S. I. Hari Murti Singh and sent the dead bodies for post mortem examination. P. W. 6 seized the Torch from the informant Shri Ram, in the light of which, the informant claimed to have seen the occurrence, the GANDASA and BHALA from the place of occurrence, vide recovery memos Exs. Ka-2, and Ka-18 and also collected the sample of blood stained and plain earth by preparing seizure memos Exs. Ka-16 and Ka-17.
( 9 ) POST mortem on the dead bodies of the deceased was conducted by PW-5, Sanjay Singh, Medical Officer, Robertsganj, on 11. 08. 2002 around 3. 45 p. m. and 4. 15 p. m. by post mortem reports Exs. Ka-19 and Ka-20 and he found them one day back dead
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