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2019 Supreme(All) 476
HIGH COURT OF JUDICATURE AT ALLAHABAD
RAMESH SINHA, DINESH KUMAR SINGH, JJ.
Chand Babu - Appellant
Versus
State of U.P. - Respondent
Capital Cases No. 202, 203 of 2018
Decided On : 15-04-2019
Anurag Singh, Adv., Arvind Kumar Singh, Adv., Ashutosh Srivastava, Adv., Akhilesh Tripathi, Adv., Mohammad Farooq, Adv.
Headnote:
Penal Code, 1860 – Section 302 r/w 34, 120-B, 307 – Criminal Proced307ure Code, 1973 – Section 161, 437-A – Arms Act – Section 25 – Benefit of doubt – Appeal against conviction – Grounds for – Discrepancies in Inquest Report or Post Mortem Report – Appellant shot dead the deceased person – Based on testimony and evidence on record Trial Court convicted Appellants –Held, Scanning evidence of prosecution witnesses and perusing same, it cannot be said that two accused-appellants were involved in murder of deceased – So far recovery is concerned, it highly improbable that person would carry pistol in right hand and move freely in order to expose himself before police and that too weapon of assault which was used in crime two days ago – It is quite possible that murder taken place in busy market place and police was under pressure to work out said murder it has come in evidence of P.W. 1 as well as other prosecution witnesses that they were suggested that on account of pressure on administration of public, fabricated and concocted against two appellants though they denied same – One of accused who had criminal history and died during pendency of trial and his confessional statement come that he along with one more person gone at place of occurrence along with two appellants and it might be possible that he may be actual culprit, who was having criminal antecedents – Benefit of doubt is given to two accused appellants as their involvement in not proved beyond reasonable doubt by prosecution by cogent evident – hence conviction and sentence of appellants by trial court set aside – Appeals allowed. (Paras: 42 to 46)
Facts of the case:
Appeal against conviction – Grounds for – Discrepancies in Inquest Report or Post Mortem Report – Appellant shot dead the deceased person – Based on testimony and evidence on record Trial Court convicted Appellants.
Findings of the court:
Scanning evidence of prosecution witnesses and perusing same, it cannot be said that two accused-appellants were involved in murder of deceased – So far recovery is concerned, it highly improbable that person would carry pistol in right hand and move freely in order to expose himself before police and that too weapon of assault which was used in crime two days ago – It is quite possible that murder taken place in busy market place and police was under pressure to work out said murder it has come in evidence of P.W. 1 as well as other prosecution witnesses that they were suggested that on account of pressure on administration of public, fabricated and concocted against two appellants though they denied same – One of accused who had criminal history and died during pendency of trial and his confessional statement come that he along with one more person gone at place of occurrence along with two appellants and it might be possible that he may be actual culprit, who was having criminal antecedents – Benefit of doubt is given to two accused appellants as their involvement in not proved beyond reasonable doubt by prosecution by cogent evident – hence conviction and sentence of appellants by trial court set aside.
Result : Appeals allowed
RAMESH SINHA, J.
1. The present criminal (capital) appeal has been filed by the two appellants against the judgment and order dated 24.7.2018 passed by Additional District and Sessions Judge, Court No.7, Kanpur Nagar in S.T. No.976-A of 2004 (State Vs. Sharif Ahmad and another) arising out of Case Crime No.130 of 2004, under Section 25 Arms Act, Police Station Swaroop Nagar, Kanpur Nagar and in S.T. No. 976-B of 2004, arising out of Case Crime No.131 of 2004, under Section 25 Arms Act, P.S. Swaroop Nagar, Kanpur Nagar whereby the accused Chand Babu and Sharif Ahmad s/o Haji Mohammad Yaseen have been convicted and sentenced to 7 years R.I. and a fine of Rs. 30,000/- each and in default six months further R.I. and in S.T. No. 976 of 2004, arising out of Case Crime No.129 of 2004, under Section 307 IPC, P.S. Swaroop Nagar, Kanpur Nagar whereby accused Chand Babu and Sharif Ahmad s/o Haji Mohammad Yaseen have been convicted and sentenced to 7 years R.I. and a fine of Rs. 30,000/- each and in default 6 months further R.I. and in S.T. No.1066 of 2004, arising out of Case Crime No.128 of 2004, under Section 302 read with Section 34, 120-B IPC, they have been convicted and sentenced to death and a fine of Rs.1,00,000/- and in default one year further R.I. Both the appellants have been awarded death sentence by the Trial Court, hence a reference has been made to this Court being Reference No. 6 of 2018 for confirmation of death sentence to them by this Court.
2. As both the aforesaid appeals along with the reference arise out of a common judgment and order, the same are heard and decided by this common judgment.
3. The prosecution case in brief is that an FIR was lodged at police station Swaroop Nagar, District Kanpur Nagar on 23.6.2004 at about 19.20 hours on the basis of a written report submitted by the informant with an allegation that on 23.6.2004, Constable Pramod Kumar and Constable Kishan Pal along with their service rifles were on patrol duty at Chat Chauraha to maintain law and order and discharging their official duty. At about 6.30 PM in the evening, one car stopped at Dog Kitment Care Centre of Dr. D.N. Sabarwal. There was heavy traffic on the road as people were moving and also there was adequate movement near the said car in the meanwhile two miscreants came by a motor-cycle and the person sitting on pillion seat took out a weapon from his waist and fired to kill the driver of the car. After witnessing the said incident, the two constables rushed towards the place of occurrence in order to apprehend the miscreants and to save the driver of the car but as it was evening and large number of people were on the road on account of which the road was very busy, they could not fire from their rifles as they apprehended that some person of the public may not be hit by them. The miscreants were chased by them, who tried to run away from the place of occurrence but due to fear, the motor-cycle skidded but taking advantage of the lanes and rush in the market they managed their escape good. The Calliver motor-cycle bearing Registration No. UP 78-AC-5668 was left by the miscreants at the place of occurrence. After the incident, when they reached at the spot they saw that the person, who was shot by the miscreants succumbed to his injuries. Thereafter, one person came and identified him as Ashok Kumar Sabarwal r/o 120/364 Basayat Nagar, P.S. Nazirabad Kanpur Nagar. The said person was lying in an injured condition in the car bearing Registration No. UP-78-ACB 0284, which was a Santro Car. The injured has received injuries on his head and has died. The miscreants, who had shot dead the deceased were seen by the two constables along with other persons of the public. They stated that if the miscreants be produced before them, they could identify them as at the time of incident there was sufficient light of electricity. The miscreants had committed a brutal murder in a public place which is a densely populated and busy market place
