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2012 Supreme(All) 1720
[2012(8) ADJ 266 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMITYAZ MURTAZA AND VISHNU CHANDRA GUPTA, JJ.
BRIJ KISHORE ....Appellant (In Jail)
Versus
STATE OF U.P. AND ANOTHER ....Respondents
(Criminal Appeal Nos. 2056, 2125, 2182, 2447, 2472 of 2007, decided on 12th July, 2012)
Counsel :
I.B. Singh for the Appellant; Farhan Alam Osmany, V.K. Srivastava and A.G.A-I for the Respondents.
Headnote:(A) (Indian) Penal Code, 1860—Sections 147, 302,149, 397 and 307—Criminal Procedure Code, 1973—Sections 200, 202, 91, 311 and 315—Double murder—Conviction—Sustainability of—Complaint—Committal of case to Court of Sessions—In defence accused persons stated that deceased committing robbery and appellant were looted by both deceased—FIR—In present case prosecution concealed the fact of lodging of FIR—Final report—Acceptance of—It is a judicial order—Remain unchallenged—Inquest report by police upon corpse of both—It could be done only after receipt of information of same—Non-production of the same not bona fide for prosecution—In respect of FIR prosecution failed to secure attendance of I.O.—As gravity of offence increases, scrutiny of evidence become tighter—Testimony of witness not supported by medical evidence—Place of occurrence doubtful—Statements of both witnesses are contradictory—Accused persons are competent defence witness—In present case defence taken by accused probable—Conviction unsustainable. [Paras 21, 23, 28, 31, 36 and 40]
(B) Criminal Procedure Code, 1973—Section 315—Defence witness—Accused person—Production of—Permission of Court—Necessity of—Before a criminal Court shall be a competent witness for defence—However, only with a prior permission of Court. [Para 36]
Result; Appeals Allowed.
Hon'ble Vishnu Chandra Gupta, J.—The aforementioned criminal appeals arise out of the same judgment and order of conviction and sentence hence these appeals are taken together and are being decided by a common judgment.
2. The challenge in these criminal appeals is conviction and sentence recorded in a judgment dated 24.8.2007 passed in Sessions Trial No. 302 of 1999 by Amar Singh Chauhan, Additional District and Sessions Judge Court No. 1, Hardoi, convicting each of the appellants of all the aforementioned appeals under Sections 147, 302 read with Section 149 IPC with one year R.I. and Life imprisonment with fine of Rs. 1000/-, respectively.
3. We have heard the learned Counsel for appellants, Counsel for complainant, the respondent No. 2 and the learned Additional Government Advocate and also perused the record of the lower Court and of these appeals with the assistance and help of learned Counsel for the parties.
FACTS
4. A complaint has been filed in the Court of C.J.M.Hardoi by Rafeeq (PW-1) against 10 persons for committing murder of his brother Madari and one Puttu alleging therein that about six months ago from the incident of murder Brij Kishore (Appellant in Cr. Appeal No. 2065/2007) purchased a pregnant she buffalo from Madari for Rs. 8000/-. Later on after about a month Brij Kishore came to complainant’s house and complained to his brother Madari about the death of she bufallo and asked to return money on the pretext that a sick she bufallo had been given to him. Madari refused to return the money and said that he gave him a healthy she buffalo. An altercation took place on this account in between Madari and Brij Kishore. About two months later from incident of this altercation Brij Kishore alongwith unknown boy came to the house of complainant and asked his brother Madari that a Punchayat about she-bofallo will be held in village Patras so your presence is necessary in Punchayat and he came to call him (Madari) for the Punchayat. Madari refused to go in Punchayat. Thereafter, Brij Kishor and unknown boy started hurling abuses to Madari. Madari also abused them. Thereafter both started struggling. The complainant and his younger brother pacified them. Brij Kishor after extending threats to life left the place.
5. On 17.2.1990 (might be 17.3.1990) at about 3.00 p.m. Madari and Puttu, while sitting in the field and grazing animals, the accused persons, namely, Brij Kishore (appellant in Criminal Appeal No. 2056), Narendra Singh and Son Pal (both appellants in Criminal Appeal No. 2182 of 2007), Chandra Pal (appellant in Criminal Appeal No. 2125 of 2007), Mahesh and Muneshwar (both appellants in Criminal Appeal No. 2447 of 2007), Uma Shanker (appellant in Criminal Appeal No. 2472 of 2007 and Rajesh (who had been acquitted by the trial Court), Vishwanath and Bodi (Both died during pendency of the trial) came there armed with Lathis. Brij Kishore exhorted Madari that he will not be spared today and shall be killed. Madari got up and ran away towards village Patras. All the accused persons chased and surrounded Madari and started assaulting with Lathis in the field. The complainant Rafeeq and Puttu ran over to the spot after making noise to rescue Madari. Puttu was also assaulted by the accused persons with Lathis. Puttu also tried to defend himself with the stick in his hand by which one or two accused persons may have got injuries. The complainant out of fear and to save his life stood at some distance from the place of occurrence and witnessed the incident. Puttu and Madari fell down on the spot on account of injuries sustained by them. Puttu was killed by putting and pressing the Lathi on his neck. Both Puttu and Madari succumbed to the injuries. In this process, accused persons managed their escape towards their village. This incident was also witnessed by Sadulla (PW-2), who was standing in his field.
6. After this incident the complainant came in his village and after informing about the incident to the vil
