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2019 Supreme(All) 1175
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
BACHCHOO LAL, SURESH KUMAR GUPTA, JJ.
Asif – Appellant
Versus
State of U.P. – Respondents
Criminal Appeal No. 940 of 2007
Decided On : 22-01-2019
For the Appellant : M.J. Akhtar, A.J. Akhtar and R.K. Khanna
For the Respondents:Govt. Advocate
Headnote:
Criminal Appeal - Challenge to Judgment under Section 374(2) Cr.P.C. - Section 302 of I.P.C. - Summary of Acts and Sections: Section 374(2) Cr.P.C., Section 302 of I.P.C. - The court discussed the evidence under Section 302 of I.P.C., the power of appellate court, the reliability of witness testimony, and the application of Section 300 I.P.C. in reaching its decision.
Fact of the Case:
The appellant-accused, Asif, challenged the judgment and order dated 06.01.2007 passed by Special Judge, Badaun in S.T. No. 931 of 2006. The appellant was alleged to have committed offences under Section 302 of I.P.C. by shooting the deceased, Mukkaram, during a quarrel at the roof of Pradhan-Akram's house.
Finding of the Court:
The court analyzed the evidence, including witness testimonies, medical evidence, and the recovery of the weapon of assault. It discussed the reliability of the witness testimony, the absence of motive, and the timing of the F.I.R. The court applied the 4th Exception of Section 300 I.P.C. and altered the conviction from Section 302 I.P.C. to Section 304 (part 1) I.P.C., sentencing the accused to 10 years of custodial sentence with a fine of Rs. 5000/- and default condition of two months imprisonment.
Issues: The issues included the reliability of witness testimony, the absence of motive, the timing of the F.I.R., and the application of the 4th Exception of Section 300 I.P.C.
Ratio Decidendi: The court emphasized the quality of witness evidence over quantity, the relevance of motive in cases of direct evidence, and the application of the 4th Exception of Section 300 I.P.C. in cases of sudden quarrel and grave provocation.
Final Decision: The appeal was partly allowed, altering the conviction from Section 302 I.P.C. to Section 304 (part 1) I.P.C., and sentencing the accused to 10 years of custodial sentence with a fine of Rs. 5000/- and default condition of two months imprisonment.
ORDER :
1. By this criminal appeal, under section 374(2) Cr.P.C. the appellant-accused, Asif, challenged the impugned judgment and order dated 06.01.2007 passed by Special Judge, Badaun in S.T. No. 931 of 2006 (State Versus Asif) the appellant who face alleged commission of offences under Section 302 of I.P.C. and was sentenced to imprisonment of life and to pay a fine of Rs. 5000/- in default two month imprisonment.
2. The prosecution version unfolded by complainant-Pappu. On 3rd May, 2005, the deceased-Mukkaram accompanied with complainant-Pappu went to village Bhavanipur Khalli which was his in-laws home. When complainant Pappu and Mukarram with Mukkadis were going to meet Pradhan Akram in the meanwhile at 8:30 pm, accused Bitton, Asif and Musahid catching hold the Mukkaram and forcibly take away and abusing. Complainant intervened and asked them why they are dragging him then accused told him that Mukkaram has taken their country-made pistol. During altercation, several villagers gathered at the baithak of Pradhan-Akram. Then Pradhan-Akram asked what is the matter. Then accused told him that Mukkaram is in possession of his country-made pistol but the deceased-Mukkarram denied the allegation inflicted upon him. Complainant-Pappu, deceased-Mukkaram along with accused as well as Pradahan-Akram gathered at the roof of Pradhan's house for compromise between deceased-Mukarram and accused-Asif. During the altercation on the pretext of returning the country-made pistol to appellant-Asif, at 9.00 pm, appellant-Asif shot Mukkaram. Due to gunshot injury, Mukkaram died on the spot at the roof of Pradhan-Akaram's house and appellant-accused-Asif left his country-made pistol at the roof of Pradhan-Akram. Dead body of deceased was lying at the roof of Pradhan's house.
3. F.I.R. of this case was lodged by complainant at 11 P.M. at Police Station-Sahaswan, District Budaun and the distance between the place of incident and Police Station is about 10 Kilometers. On the basis of written report Exhibit KA-1 an F.I.R. Exhibit KA-14 was lodged against the appellant-accused alongwith Betton and Musahir under Sections 302 I.P.C. After lodging the F.I.R., police rushed to the spot and panchnama was prepared by police and dead body was sealed on the spot and send for autopsy. Police had also recovered country made pistol and empty cartridge from the spot and prepared recovery memo Exhibit KA-10 and also prepared recovery memo of blood stains and plain earth Exhibit KA-9. Police had also taken custody of lantern and supurdiginama Exhibit KA-11.
4. Autopsy of dead body was conducted by PW-3, R.C. Sharma. During examination of dead body following anti-mortem injuries were found on the dead body of deceased:-
(I) Fire arm wounds of entry 1.0 cm X 1.0 cm on left side back of chest 12.0 cm from the midline just below scapula margin inverted blackening in an area 3.5 X 2.5 cm present.
(II) Fire arm wounds of exit 1.5 cm X 1.5 cm on left side front of chest 6.0 cm from nipple the injury is communicating to the injury No. 1.
5. In view of the above the Doctor opined that the cause of death is hemorrhage & shock as a result of anti-mortem injury.
6. After completion of investigation on 29.06.2005 charge-sheet was placed against the accused Asif, Bitton and Musahir before the Chief Judicial Magistrate. But Mushir and Bitton absconded afterward than file of Asif was separated and case committed to Sessions on 09.10.2006 and charge was framed by the trial court against the accused on 09.10.2006 under Section 302 of I.P.C. In order to prove his case prosecution has examined PW-1, Pappu (eye-witness), PW-2, Shaukat Ali, PW-3, Dr. R.C. Sharma, PW-4, Mukkadis, PW-5, S.I. Satya Narayan Singh, PW-6 S.I. Hari Ram Nirala.
7. Prosecution also relied on the documentary evidence of the following documents.
8. Written report of Complainant Exhibit KA-1, Post Mortem Report Exhibit KA-2, Panchayatnama Exhibit KA-3, Photo Nash Exhibit KA-4, sealed Mohar Exhibit KA-5, challan dead body
