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2020 Supreme(All) 672
IN THE HIGH COURT OF ALLAHABAD
B. Amit Sthalekar, Ali Zamin, JJ.
Awadhesh – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 4294 of 2005
Decided On : 10-01-2020
Advocate Appeared:
For the Appellant : Upendra Upadhyaya, Prakash Chandra Shakya and S.V. Singh
For the Respondent:Govt. Advocate, A. Kumar Singh, Ajendra Kumar and I.M. Khan
Point of Law: Section 146 of Indian Evidence Act also provides that when a witness is cross-examined, he may be asked any question which tend to test his veracity - Yet no question was put to PW-5 in cross-examination on the articles seized in her presence - In absence of any question with regard to seizure of blouse, dhoti and broken bangles in presence of PW-5, omission of this fact from her evidence is no ground to doubt veracity of her evidence
Headnote:
Indian Penal Code, 1860 – Section 302 – Criminal Trial - Offence of Murder –Appeal against conviction – Prosecution has succeeded in proving the case against the appellant and there is no reason to disbelieve the prosecution witnesses and the trial court has rightly convicted and sentenced the appellant, as aforesaid -
Facts of the case: Alleging therein that he alongwith his uncle and his father were going from village Nagla Mohan, Thana Raja Ka Rampur, District Etah to attend an invitation in Village Gadhaiya and while they were on the way at about 6.00 PM accused Awadhesh s/o Baburam came on Rajdoot Motorcycle and with intention to kill he fired indiscriminately at his father Shishu Pal from his licensed double barrel gun and on receiving the fire arm injuries his father Shishu Pal fell down and died on the spot. This incident is stated to have been witnessed by several people present on the road and some other persons who were working in their fields but as soon as the incident took place these persons out of fear ran away in different directions
Finding of the court: For one year the evidence brought on record court find that the prosecution has succeeded in proving the case against the appellant and there is no reason to disbelieve the prosecution witnesses and the trial court has rightly convicted and sentenced the appellant, as aforesaid – For the reasons aforesaid, court do not find any illegality or infirmity in the judgment of the trial court – The conviction and sentence of the appellant awarded by the trial court is upheld – The appellant Awadhesh is in jail – He shall be kept there to serve out the sentences, as awarded by the trial court and affirmed by us.
Result: Criminal Appeal Dismissed
ORDER :
B. Amit Sthalekar, J.
1. Heard Shri S.V. Singh, learned counsel for the appellant, Shri Ajendra Kumar, learned counsel for the informant and Shri Ratan Singh, learned A.G.A. for the State.
2. The present criminal appeal has been filed against the judgment and order dated 16.9.2005 passed by the Sessions Judge, Etah in S.T. No. 714 of 2003 whereby the appellant has been convicted under section 302 I.P.C. and sentenced to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine further imprisonment for one year.
3. A first information report was lodged by one Narendra Singh on 12.08.2003 at about 8.30 PM alleging therein that he alongwith his uncle Ahibaran Singh and his father Shishu Pal Singh were going from village Nagla Mohan, Thana Raja Ka Rampur, District Etah to attend an invitation in Village Gadhaiya and while they were on the way at about 6.00 PM accused Awadhesh s/o Baburam came on Rajdoot Motorcycle and with intention to kill he fired indiscriminately at his father Shishu Pal from his licensed double barrel gun and on receiving the fire arm injuries his father Shishu Pal fell down and died on the spot. This incident is stated to have been witnessed by several people present on the road and some other persons who were working in their fields but as soon as the incident took place these persons out of fear ran away in different directions. The informant left the body of deceased Shishu Pal on the spot and went to the police station and lodged the first information report. It is also stated in the F.I.R. that this incidence was also witnessed by his grandfather Sri Ramchandra.
4. The matter was investigated by the Investigation Officer Awadh Kishore Nigam, PW-4. The recovery memo was prepared and marked as Exhibit Ka-3, showing recovery of two empty cartridges of 12 Bore with K.F.12 As TRAM carved on its base. Thereafter the police collected samples of plain earth and blood stained earth from the spot which was marked as Exhibit Ka-4.
5. On 23.08.2003 the Investigating Officer, S.O., A.K. Nigam alongwith Constable Surendra Pal and Constable Deendayal received information through informer (Mukhbir) that the weapon used in the murder was kept on the roof of the western side of the house of Awadhesh and therefore the Investigation Officer alongwith witnesses Devendra Singh s/o Shishu Pal and Ramchandra went to the house of the accused Awadhesh. Door of the house was open and there was no one in the house and in the presence of Awadhesh recovered the double barrel 12 bore gun No. 23573-92 on which Shiva Gun Factory Special E N 9 Steel India Ordinance Factory Tested was written in English. The gun had two triggers and two hammers. Smell of gun powder was also present in the barrel. This recovery has been marked as Exhibit Ka-9.
6. The post mortem of the dead body was conducted on the next date i.e. on 13.08.2003 at 1.00 PM by Dr. V.P. Bansal and following ante mortem injuries have been noted in the post mortem report:
1. Fire-arm wound of entry 1 cm. x 1 cm. on left side neck, just below angle of mandible.
2. Fire-arm wound of exit 1½ cm x 1¼ cm x through and through injury no. 1 on the right side lower part of neck. Direction left to right tattooing present on left side face around injury no. 1.
3. Fire-arm wound of entry 4 cm x 4 cm x on the left side top of shoulder and front of left shoulder.
4. Fire-arm wound of exit 10 cm x 6 cm x through and through injury no. 3 (on dissection 5 small pellets recovered from back of scapula) on the back left scapular region. Direction from front to back and downward.
5. Fire-arm wound of entry 5 cm x 4 cm x chest cavity deep on right side chest just above right nipple on dissection both lungs and heart lacerated. 6th, 7th and 8th ribs on right side fractured. 18 small pellets, recovered from chest cavity about one liter free and clotted blood present in chest.
6. Gutter shaped injury 5 cm x 4 cm on right fore-arm, lower 1/3rd outer side from front to back (fire arm inju
