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2017 Supreme(All) 2651
IN THE HIGH COURT OF ALLAHABAD
Anil Kumar, Anil Kumar Srivastava-II, JJ.
Subhash son of Jagannath Bhurji - Appellant
Vs.
State of U.P. - Respondent
Criminal Appeal No. - 291 of 2010
Decided On : 02-11-2017
For the Appellant : Jail Apeeal, Shri Anurag Shukla (Amicus Curiae)
The prosecution must prove the charges against the accused beyond reasonable doubt, and the significance of prompt lodging of the FIR and the dying declaration in establishing the guilt of the accused.
Headnote:
FIR - Murder - 302 IPC, 25 Arms Act - [302 IPC, 25 Arms Act] - The court discussed the prompt lodging of the FIR, the delay in lodging the FIR, the dying declaration, and the motive behind the incident. The court emphasized the importance of prompt lodging of the FIR and the need for a satisfactory explanation for any delay. It also highlighted the significance of a dying declaration and the need for the deceased's mental and physical condition to be such that they can make a statement voluntarily. The court found that the prosecution failed to prove the charges against the accused beyond reasonable doubt and acquitted the accused.
Fact of the Case:
The deceased Mukesh was shot and killed at his in-laws' house. The accused, Subhash, was convicted under section 302 IPC but acquitted under section 25 Arms Act by the trial court. The accused appealed against the judgment, claiming false implication.
Finding of the Court:
The court found that the prosecution failed to prove the charges against the accused beyond reasonable doubt. It highlighted the discrepancies in the evidence, including the delay in lodging the FIR, the dying declaration, and the motive behind the incident. The court concluded that the accused was entitled to acquittal.
Issues: Prompt lodging of the FIR, delay in lodging the FIR, dying declaration, motive behind the incident, and discrepancies in the evidence.
Ratio Decidendi: The court emphasized the importance of prompt lodging of the FIR and the need for a satisfactory explanation for any delay. It also highlighted the significance of a dying declaration and the need for the deceased's mental and physical condition to be such that they can make a statement voluntarily. The court found that the prosecution failed to prove the charges against the accused beyond reasonable doubt.
Final Decision: The appeal was allowed, and the judgment and order convicting the accused under section 302 IPC were set aside. The accused was acquitted for the offence punishable under section 302 IPC and was ordered to be released from jail if not wanted in any other case.
Anil Kumar, J.
1. Heard Shri Anurag Shukla Amicus Curiae for the accused-appellant and Ms. Farhat Jamal Siddiqui, learned A.G.A. for the State and perused the record.
2. Instant appeal has arisen against the judgment and order dated 19.3.2008, passed by learned Additional Sessions Judge, Hardoi in S.T. No.432/2006, arising out of Crime No.122/2006, under section 302 IPC, Police Station Behata Gokul, District Hardoi and connected S.T. No.501/2006, arising out of case crime no.124/2006, under section 25 Arms Act, Police Station Behata Gokul, District Hardoi, whereby the learned trial court had convicted the accused Subhash under section 302 IPC and sentenced him imprisonment for life and pay a fine of Rs.5000/-. In default of payment of fine he has to further undergo rigorous imprisonment for one year. However, learned trial court had acquitted the accused for an offence punishable under section 25 Arms Act.
3. A first information report was lodged at police station Behata Gokul on 05.4.2006 by Mukesh Stating that he is the resident of Village Bilsari, Police Station Pachdevara, District Hardoi, but at the time of incident he alongwith his brothers was residing at Raushar Kothi, Police Station Ram Chandra Mission, District Shahjahanpur. Subhash, younger brother of the complainant, was residing at village Bilsari alongwith his mother. Shyamlal, resident of village Kotla Sarai, Police Station Behata Gokul is the father in law of the complainant. Accused Subhash was inimical with the complainant due to some money transaction. Complainant had come to his in-laws house at Village Kotla on 04.4.2006. During the night of 4/5.4.2006 complainant was sleeping beneath the ‘chhappar’ alongwith his wife Pramila and father-in-law Shyam Lal. At about 01:30 AM accused Subhash came and fired upon the complainant Mukesh. On his raising an alarm and hearing the voice of fire Pramila and Shyam Lal awakened and saw the accused in the torch light. Accused ran away. Complainant Mukesh got injured. Written report was scribed by Ram Babu, brother of the complainant Mukesh. Written report was submitted at the police station Behata Gokul at 07:05 AM on 05.4.2006 and a case under crime no.122/2006, under section 307 IPC was registered. At 08:15 AM injured Mukesh was medico legally examined by Dr. Anoop Kumar Srivastava, Emergency Medical Officer, District Hospital Hardoi, who found a firearm wound of entry and wound of exit. On the same day, i.e., 05.4.2006 Mukesh succumbed to the injuries at about 07:00 PM. Inquest proceedings were conducted. Postmortem of the body of deceased was conducted on 06.4.2006 wherein the cause of death was found as ante-mortem firearm injury. After the death of the complainant the case was altered under section 302 IPC. On 08.4.2006 SI Surendra Singh alongwith other police officials at about 07:45 PM arrested the accused and recovered a countrymade pistol 315 bore and a live cartridge and empty cartridge from the possession of the accused who could not show the licence. A case under section 25 Arms Act was registered. Site plan was prepared. Pending investigation part of the bed were recovered. Statement of the witnesses were recorded. Site plan was prepared. Recovered articles were sent to Forensic Science Laboratory. Recovered countrymade pistol was also sent wherein a report was received that the fire was not shot from the recovered pistol.
4. Sanction for prosecution under section 25 Arms Act was obtained by the Investigating Officer. After investigation separate chargesheet under section 302 IPC and 25 Arms Act were submitted against the accused. Charge under section 302 IPC and 25 Arms Act were levelled against the accused, who denied the charges and claimed trial.
5. Prosecution has produced PW-1 Shyam Lal, father-inlaw of the deceased Mukesh who was also sleeping alongwith him on another cot, PW-2 Smt. Pramila wife of the deceased who was also sleeping alongwith deceased on another cot. PW-3 Ram Babu eyewitness was
