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IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, PRADEEP KUMAR SRIVASTAVA, JJ.
Baba Deen – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.125 of 2000
Decided on : 11-02-2020
Indian Penal Code, 1860 – Section 302 – Arms Act – Section 25 – Offence of Murder – Appeal against conviction – Recovery of pistol – Testimony of witness – Statements of the accused persons were recorded under Section 313 Cr.P.C. They have put forward the case of denial and have stated the case and evidence of witnesses to be false and based on enmity. They have not produced any evidence in their defence – Held, FIR has been lodged promptly without any delay. Three eye-witnesses including informant have proved the prosecution case who are of the same locality where the accused lives and where the place of the commission of offence is situated. – No contradiction, improvement or discrepancy in their statement with regards to time, date, place and manner of commission of offence by accused – Injury report and postmortem report fully corroborate the time, date and manner of incident and it has been found that both died by gunshot injuries. Motive, alleged has been also proved and absence or inadequacy of motive is of no avail as the prosecution case is based on direct evidence – Prosecution has succeeded in proving the charge under Section 302 IPC beyond shadow of any doubt – Conviction justified – Appeal dismissed. (Paras 45 and 46)
Facts of the Case
At the time of incident, the informant Prem Narain had gone to the shop of Gaya babu for purchasing Bidi and behind him his niece Raj Kumari aged about 13 years and nephew Arjun aged about 12 years had also come to the shop. Accused Baba Deen came from the side of his house along with co-accused Kali Charan and Chhote Lal. Seeing the informant on the shop, Kali Charan and Chhote Lal exhorted Baba Deen, whereupon he fired by his country made gun of 12 bore on the informant, but he escaped. Unfortunately, the pellets of the fire hit his niece and nephew who sustained injuries. After that, all the three accused persons ran away towards their house.
Finding of the Court
FIR has been lodged promptly without any delay. Three eye-witnesses including informant have proved the prosecution case who are of the same locality where the accused lives and where the place of the commission of offence is situated. – No contradiction, improvement or discrepancy in their statement with regards to time, date, place and manner of commission of offence by accused – Injury report and postmortem report fully corroborate the time, date and manner of incident and it has been found that both died by gunshot injuries. Motive, alleged has been also proved and absence or inadequacy of motive is of no avail as the prosecution case is based on direct evidence – Prosecution has succeeded in proving the charge under Section 302 IPC beyond shadow of any doubt – Conviction justified.
Result: Appeal dismissed.
JUDGMENT :
Pradeep Kumar Srivastava, J.
1. Heard Sri Jitendra Singh, learned counsel for the appellant, Sri L.D. Rajbhar and Mrs. Alpana Singh, learned A.G.A for the State and perused the record.
2. This criminal appeal has been filed against the judgment and order dated 10.12.1999, passed by the Sessions Judge, Mahoba, in Sessions Trial No. 38 of 1996 (State vs. Baba Deen And others), arising out of Case Crime No. 193 of 1995, under Section 302 IPC, Police Station Shrinagar, District Mahoba, whereby the accused-appellant Baba Deen has been convicted and sentenced for life imprisonment. By the same judgment, two other co-accused persons Chhote Lal and Kali Charan have been acquitted.
3. Brief facts of the case is that the incident took place on 02.12.1995 at about 06:00 PM in the village Pawa, PS Shrinagar, Mahoba. At the time of incident, the informant Prem Narain had gone to the shop of Gaya babu for purchasing Bidi and behind him his niece Raj Kumari aged about 13 years and nephew Arjun aged about 12 years had also come to the shop. Accused Baba Deen came from the side of his house along with co-accused Kali Charan and Chhote Lal. Seeing the informant on the shop, Kali Charan and Chhote Lal exhorted Baba Deen, whereupon he fired by his country made gun of 12 bore on the informant, but he escaped. Unfortunately, the pellets of the fire hit his niece and nephew who sustained injuries. After that, all the three accused persons ran away towards their house. The nearby people Lakhan Lal Lodhi and Ashok Kumar Lodhi saw the whole incident. The informant and his family members took the injured persons to the police station by tractor, where he submitted his written report on the basis of which the offence was registered under Section 307 IPC. The informant's niece namely Raj Kumari was dead by the time the doctor examined her, about which the informant also informed to the police. Inquest report of the dead body was prepared along with the relevant papers and the postmortem of Raj Kumari was conducted on 03.12.1995. On the basis thereof, the case was converted into Section 302 IPC. The injured Arjun was serious and he was referred to the Medical College, Gwaliar, where he was provided treatment and when he was discharged on 14.12.1995 from the hospital and was being brought to the village, at about 05:30 PM, he also died near the railway station and the same was also reported to the police. Inquest report was prepared along with the relevant papers and the postmortem of Arjun was conducted on 15.12.1995.
4. The police investigated into the matter, recorded the statements of the witnesses and prepared the site map. The accused-appellant Baba Deen was taken into custody and on his instance a country made gun of 12 bore was recovered from the hedges of sugarcane field, which the accused Baba Deen gave to the police and stated that by that gun, he fired on Prem Narain and by mistake the fire hit the nephew Arjun and niece Raj Kumari. When asked, he could not show the license. Offence under Section 25 Arms Act was registered against him. The police sent the gun which was recovered from the accused Baba Deen for forensic report and finding sufficient evidence against the accused persons submitted charge sheet for the offence under Section 302 read with Section 34 IPC and under Section 25 Arms Act against the accused Babadeen.
5. The learned trial court framed the charges against accused Baba Deen for the offence under Section 302 IPC and Section 25 Arms Act and against Kali Charan and Chhote Lal for the offence under Section 302/34 IPC.
6. Prosecution examined as many as nine witnesses. PW-1 Prem Narain (informant has proved the written report Ext. Ka-1 and the information dated 15.12.1995 regarding the death of Arjun Ext. Ka-2 and has stated about the incident. PW-2 Lakhan Lal and PW-3 Ashok Kumar are the eye witnesses. PW-4 Dr.D.K. Tripathi of District Hospital, Mahoba has proved the postmortem report of Arjun as Ext. Ka-3. PW-5 SI Bhagwant S
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