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2006 Supreme(All) 1628
[2006(5) ADJ 738 (DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : IMTIYAZ MURTAZA AND RAVINDRA NATH MISRA, JJ.
BUDHRAJ SINGH AND OTHERS ....Appellants (In Jail)
Versus
STATE OF U.P. ....Opposite Party
(Criminal Appeal No. 2731 of 2005 with Govt. Appeal No. 4605 of 2005,
decided on 26th May, 2006)
Counsel :
P.N. Misra, J.S. Sengar, R.K. Shukla, Apul Misra, I.B. Singh, Smt. Seema Shukla for the Appellants; Satish Trivedi, K.N. Bajpai, Mayank Bhushan, J.R.S. Tomar, Smt. Kavita Tomar, A.G.A., for the Opposite Party.
Headnote:(A) (Indian) Penal Code, 1860—Sections 302/34, 307/34 and 120-B—Arms Act, 1959—Sections 4 and 25 —Double murder—Death penalty—Sustainability of—Version of prosecution eye-witnesses find full corroboration from post-mortem examination—There was sufficient light to identify assailants—Overt act of accused persons assigned—Recovery of weapon on pointing out of accused persons—Eye-witness account cannot be disbelieved even if there is mistake committed by I.O.—Compassion in sentencing is also a key factor—However, case does not fall within category of rarest of rare case—Hence, a sentence of imprisonment for life to appellants would meet ends of justice.
[Paras 31, 43 to 56, 61 and 63]
(B) Criminal trial—FIR—Cognizance of—Court do not take cognizance on basis of FIR—Court take cognizance on basis of charge-sheet. [Para 29]
(C) Criminal trial—Cognizable offence—Information regarding occurrence through very high frequency set or telephone or RT message—It cannot be treated as FIR. [Paras 31 and 39]
(D) Criminal trial—Appreciation of evidence—Power of Appellate Court—It has full power to review the whole evidence—Could arrive at its own conclusion—Credibility of evidence to be adjudged from proof and admitted facts. [Para 42]
(E) Criminal trial—Eye-witness—Presence of—When no injury sustained by him—On that account his presence cannot be disbelieved.
[Para 42]
(F) Criminal trial—Eye-witness—Presence of—Cannot be disbelieved only because his name is not mentioned in medical examination report of injured person in incident. [Para 47]
(G) Criminal trial—Place of occurrence—Proving of—It is proved by recovery of blood stained playing cards, cement and one empty cartridges from place of occurrence—Chemical analyst’s report shows that blood was found on all recovered articles—Hence, place of occurrence proved.
[Para 51]
(H) Criminal trial—Recovery of weapon used—Recovery memo did not bear signature of accused—Effect of—When ocular evidence of eye-witness corroborated in material particulars by medical evidence—Thus, participation of accused person affirmed—Absence of accused person’s signature in recovery memo, eye-witness account cannot be disbelieved.
[Para 56]
(I) Criminal trial—Acquittal—Interference with—When testimony of eye-witnesses fully proves participation of accused appellant in crime beyond reasonable doubt—Order of acquittal could be interfered with. [Para 58]
(J) Criminal trial—Capital sentence—Imposing of—A sentence for imprisonment for life is now the rule and capital sentence is an exception—While recording capital sentence, Court to record special reasons for—It is awardable only in rarest of rare case—Otherwise life imprisonment may make accused persons to see reason and arouse a feeling remorse and repentance. [Paras 60 and 61]
Hon’ble Imtiyaz Murtaza, J.—Criminal Appeal No. 2731 of 2005 has been filed against the judgment and order dated 17.5.2005 passed by the District and Sessions Judge, Court No. 12, Kanpur Nagar in S.T. No. 1072 of 2003, State v. Budhraj Singh and others, under Sections 302/34, 307/34 and 120-B, l.P.C., S.T. No. 1074 of 2003, State v. Jai Bahadur Singh, under Section 25 Arms Act, S.T. No. 1075 of 2003, State v. Budhraj Singh, under Section 25 Arms Act and S.T. No. 1073 of 2003, State v. Chhote Singh, under Section 25 Arms Act, whereby the appellants have been convicted and sentenced to death under Section 302/34, I.P.C., they are further convicted and sentenced to undergo R.I. for 5 years and fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for three months, under Section 307/34, I.P.C., appellants Budhraj Singh and Jai Bahadur Singh further sentenced to undergo imprisonment for one year under Section 25 Arms Act and Chhote Singh alias Malkhan Singh sentenced to undergo imprisonment for one year under Section 25/4 Arms Act.
Government Appeal No. 4605 of 2005 has been filed against the acquittal of Manoj Singh under Sections 302/34, 307/34, 120-B, I.P.C. and 25 Arms Act.
Crl. Revision No. 435 (D) of 2005 has been filed against the acquittal of Manoj Singh.
Criminal Reference is for the confirmation of death sentence of the appellants.
All the above cases arise out of the same judgment dated 17.5.2005, therefore, they are being decided together by this judgment.
2. The brief facts mentioned in the report lodged by Chhutkan Singh at P.S. Sachendi at case crime No. 176/3 are that on 4.7.2003 at about 5.45 p.m. he and his nephew Awdhesh Singh alias Puttan, Rakesh Singh, Chhunu Gupta and Sukhveer Singh were playing cards in front of the shop of Chhunu Gupta under a tin shade. Budhraj Singh and Jai Bahadur Singh carrying country made pistols Manoj Singh and Chhotey Singh armed with a Chapar and a knife reached there and attacked his nephews Awdhesh Singh alias Puttan Singh and Rakesh Singh. With an intention to kill they assaulted them with a knife and a Chapar and fired at Puttan alias Awdhesh Singh. They also challenged them that if they will try to save them they would also have to face the same consequences. On account of fear they ran away and raised hue and cry. The terror was created due to this incident and they left both his nephews in serious condition and proceeded on the road towards Pipauri Village on their Motor Cycles. He kept his two nephews in a Maruti car believing them to be alive and took them to Kanpur via Pipauri village. While he was taking them to Kanpur he saw that his brother Dashrath Singh, who was returning after his duty from head post office, was also murdered. His dead body was lying in the village Pipauri. Bharat Singh and Balveer Singh were crying and on being asked they disclosed that Budhraj Singh and Jai Bahadur Singh fired at him and Manoj Singh and Chhotey Singh assaulted him with a Chapar and a knife. They also disclosed that when they tried to rescue him assailants had threatened them by firing in the air. He took his nephews to Regency Hospital and the doctor had declared Awdhesh Singh alias Puttan dead and Rakesh Singh was admitted in the Hospital. The dead body of his nephew was lying in the Regency Hospital and dead body of Dashrath was lying in village Pipauri. The main enmity was in connection with an election for the post of Pradhan and also with regard to purchase of a house. On account of these enmities his nephew was murdered and one nephew was in a serious condition. He had lodged the report at the police station on 4.7.2003 at 10. p.m. The scribe of the report was Anant Singh. After the registration of the case S.I. Dal Chandra had commenced investigation. He had prepared the inquest memo of the dead body of Awdhesh Singh alias Puttan in the Regency Hospital and dispatched the dead body for the post-mortem examination. The inquest was
