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IN THE HIGH COURT OF ALLAHABAD
PRITINKER DIWAKER, RAJ BEER SINGH, JJ.
Binnu Srivastava @ Pawan Srivastava and Ors - Appellants
Versus
State of Uttar Pradesh and Ors - Respondent
Criminal Appeal No. 3574, 3657, 4045, 4046 of 2015
Decided On : 14-11-2019
MURDER - Conviction under Sections 147, 302/149 of I.P.C. and Section 25 of Arms Act - [147, 302/149, 25] - The court found that the accused-appellant Santosh Kumar Yadav fired a bullet at the head of the deceased resulting in his death. The court altered the conviction of accused-appellant Santosh Kumar Yadav from Section 302/149 to Section 302 IPC and affirmed the conviction and sentence under Section 25 of the Arms Act. The court set aside the conviction and sentence of the other accused-appellants under Section 302/149 and 147 of IPC.
Fact of the Case:
The deceased was shot and killed by the accused-appellant Santosh Kumar Yadav. The prosecution alleged that the accused-appellants encircled the deceased and made exhortations to kill him, leading to the fatal shooting. The incident was witnessed by several individuals, including the complainant and other witnesses.
Finding of the Court:
The court found that the accused-appellant Santosh Kumar Yadav was responsible for the fatal shooting of the deceased. However, the court determined that there was doubt regarding the existence of an unlawful assembly and the common object of the accused-appellants. As a result, the court altered the conviction of accused-appellant Santosh Kumar Yadav from Section 302/149 to Section 302 IPC and set aside the conviction and sentence of the other accused-appellants under Section 302/149 and 147 of IPC.
Issues: The key issues revolved around the identification of the shooter, the existence of an unlawful assembly, and the common object of the accused-appellants.
Ratio Decidendi: The court held that the evidence showed that accused-appellant Santosh Kumar Yadav fired the fatal shot, leading to his conviction under Section 302 IPC. However, the court found doubt regarding the existence of an unlawful assembly and the common object of the accused-appellants, leading to the alteration and setting aside of the convictions and sentences.
Final Decision: The court altered the conviction of accused-appellant Santosh Kumar Yadav from Section 302/149 to Section 302 IPC and affirmed the conviction and sentence under Section 25 of the Arms Act. The court set aside the conviction and sentence of the other accused-appellants under Section 302/149 and 147 of IPC.
JUDGMENT :
RAJ BEER SINGH, J.
1. All these appeals arise out of a common judgment and order dated 18.08.2015 passed by the learned Additional Sessions Judge/Fast Track, Bhadoi-Gyanpur in Session Trial No.106 of 2008 (State Vs. Binnu Srivastava @ Pawan Srivastava and 7 others), under Sections 147, 302, 149 of I.P.C., and S.T. No. 07/09, under Section 25 Arms Act, both P.S. Gyanpur, District Bhadohi, whereby accused-appellants Binnu Srivastava @ Pawan Srivastava, Pawan Srivastava @ prakash, Raj Nath Yadav, Atul Kumar Yadav @ Bhunwar, Santosh Kumar Yadav @ Kariya, Sandeep Rawat @ Rinku, Rahul Rawat and Prashant Yadav have been convicted under Section 147 and 302/149 of I.P.C. and were sentenced to imprisonment for life along with fine of Rs. 25,000/-each under Section 302/149 of I.P.C. and two years rigorous imprisonment along with fine of Rs. 2000/-under Section 147 of I.P.C. Accused-appellant Santosh Kumar Yadav @ Kariya was further convicted under Section 25 of Arms Act and was sentenced to 5 years rigorous imprisonment along with fine of Rs. 5000/-. In default of payment of fine, accused-appellants were sentenced to different period of imprisonment.
2. Prosecution version is that on 20.06.2008 at around 12.00 noon, deceased Raj Kumar, who was brother of complainant Manoj Kumar Yadav, has left his home for going to Gyanpur by motorcycle and when he reached near veterinary hospital, accused-appellants Binnu Srivastava @ Pawan Srivastava, Pawan Srivastava @ Prakash, Raj Nath Yadav, Atul Kumar Yadav @ Bhunwar, Santosh Kumar Yadav @ Kariya and Sandeep Rawat @ Rinku, riding on two motorcycles, stopped deceased Raj Kumar. Accused-appellants Rahul Rawat and Prashant Yadav were already present there. All these accused persons made exhortation to kill Raj Kumar and consequently accused-appellant Santosh Kumar Yadav @ Kariya shot a bullet at the head of deceased Raj Kumar from country made pistol. Resultantly, Raj Kumar died on spot. This incident was witnessed by complainant (PW-1) Manoj Kumar Yadav, (PW-2) Bhola and by several other persons.
3. (PW-1) Manoj Kumar Yadav reported the matter to police by submitting a written complaint Ex.Ka-1 and on that basis, case was registered against all the 8 accused-appellants on 20.06.2008 at 12.30 P.M. under Sections 147, 149, 302 of I.PC. vide Ex.Ka-4.
4. The inquest proceedings were conducted by S.I. Biri Singh under the supervision of Inspector Umesh Pratap Singh. The dead body of deceased was sent for postmortem, which was conducted on 20.06.2008 by (PW-4) Dr. Rajeev Kumar. Following injuries were found on the body of the deceased:
(ii) Exit wound 2 cm. x 1 cm over Rt. Temporal area just above the superior attachment of Rt Pinna to scalp and 6 cm Horizontally back from lat eye of Rt. eye brow, margin ever feet, bleeding occur.
Cause of death of deceased is shock and hemorrhage, as a result of ante-mortem injury caused by firearm.
5. Investigation was taken up by (PW-6) Inspector Umesh Pratap Singh. Samples of blood stained and simple Gitti and Kankar were collected from the spot vide memo Ex.Ka-7. It was alleged that after the incident, stampede has taken at the spot and six pairs of sleeper were seized from the spot. During investigation, on 21.10.2008, while being on police custody remand, accused-appellant Santosh Kumar Yadav @ Kariya got recovered country made pistol of 315 Bore, which was used in the incident, and it was taken into possession vide recovery memo Ex.Ka-15. After completion of the investigation, charge sheet was filed against all the ac
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