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2019 Supreme(All) 2659
IN THE HIGH COURT OF ALLAHABAD
PRITINKER DIWAKER, RAJEEV MISRA, JJ.
Subodh Awasthy – Appellant
Versus
State Of U.P. – Respondent
Criminal Appeal No.6270 of 2009
Decided on : 16-11-2019
Advocate Appeared:
For the Appellant : Shri Kamal Krishan, Phool Singh Yadav and Shri R.K. Srivastava.
Point of Law: If the defence wants that the evidence of related witness should not be believed, it has to lay down a strong factual foundation for the same and if necessary prove by leading impeccable evidence in respect of false implication by evidence
Headnote:
Indian Penal Code, 1860 – Sections 307, and 302 – Criminal Procedure Code, 1973 – Arms Act – Sections 25 and 27 – Section 319 – Criminal Trial - Murder and Attempt to Murder - Conviction - Challenged - It is relevant to point out that P.W.-8, S.I. Shubh Suchit, who is Investigating Officer of present case, has investigated the case for an offence under Section 302 I.P.C. He has admitted in clear terms (at page 41 of his deposition) that when he visited house of first informant soon after occurrence, he did not find any family member of deceased. This important deposition of P.W.-8 goes to show that P.W.-1 and P.W.-2 both were not present at the time and place of incident.
Facts of the case: An incident is alleged to have occurred on 31.12.2007 at 8.30 PM, in which Sanjay Awasthy is alleged to have sustained gun shot injury caused by Subodh Awasthy. A written report (Ext. Ka.-1) was submitted by Dinesh Chandra Awasthy, first informant-brother of deceased at P.S. Shivli, District-Kanpur Dehat regarding aforesaid occurrence. The said written report is scribed and signed by P.W.-1.
Finding of the court: It can not be conceived by any stretch of imagination that Santosh and Subhash were present at the time of registration of F.I.R – In these circumstances, the only inference that can be drawn is that F.I.R. is an ante-timed document – Learned A.G.A. could not point out any infirmity or illegality in aforesaid submissions urged by learned Senior Counsel for appellant – Court have ourselves scrutinize the oral testimony of P.W.-1 and P.W.-2 and find that contradictions, inconsistencies and omissions in oral testimonies of prosecution witnesses of fact as alleged are present – In view of aforesaid, this Court has no other option but to discard prosecution witnesses of fact i.e. P.W.-1 and P.W.-2 as incredible – Consequently, their testimonies are not worthy of trust – In view of above the present criminal appeal is liable to succeed.
Result: Appeal Allowed
JUDGMENT :
Rajeev Misra, J.
1. By means of present criminal appeal, appellant Subodh Awasthy is challenging validity and legality of judgment and order dated 06.10.2009 passed by Additional District and Sessions Judge (Court no.2), Kanpur Dehat in Sessions Trial No. 298 of 2008 (State Vs. Subodh Awasthy) under Section 302 I.P.C. P.S. Shivli, District-Kanpur Dehat, arising out of Case Crime No. 331 of 2007, under Sections 307 and 302 I.P.C., P.S. Shivli, District, Kanpur Dehat and connected Sessions Trial No. 299 of 2008 (State Vs. Subodh Awasthy) under Sections 25/27 Arms Act, arising out of Case Crime No. 02 of 2008, under Sections 25/27 Arms Act, P.S. Shivli, District, Kanpur Dehat, whereby and where-under accused appellant has been convicted under Section 302 I.P.C. and consequently, sentenced to life imprisonment alongwith fine of Rs. 20,000/-. In default regarding payment of fine, accused appellant is to undergo additional imprisonment of one year. Accused appellant has also been convicted under Section 27 Arms Act. Accordingly, he has been sentenced to two years rigorous imprisonment alongwith fine of Rs. 2,000/-. In case of default in payment of aforesaid fine, accused-appellant is to undergo additional imprisonment of two months. All sentences are to run concurrently.
2. We have heard Mr. Kamal Krishna, learned Senior Counsel assisted by Mr. P. S. Yadav, learned counsel for appellant and Mr. Ajit Ray, learned A.G.A. for State.
3. Facts giving rise to this criminal appeal are that an incident is alleged to have occurred on 31.12.2007 at 8.30 PM, in which Sanjay Awasthy is alleged to have sustained gun shot injury caused by Subodh Awasthy. A written report dated 31.12.2007 (Ext. Ka.-1) was submitted by Dinesh Chandra Awasthy, first informant-brother of deceased at P.S. Shivli, District-Kanpur Dehat regarding aforesaid occurrence. The said written report is scribed and signed by P.W.-1 Dinesh Chandra Awasthy.
4. Head Constable 29, Munesh Shankar Dwivedi (P.W.-4) entered written report dated 31.12.2007 in General Diary vide report No. 45. He thereafter scribed the F.I.R. dated 31.12.2007 (Ext. Ka.-3), which was registered as Case Crime No. 331 of 2007 under Section 307 I.P.C. P.S. Shivli, District-Kanpur Dehat.
5. Perusal of aforesaid F.I.R. (Ext. Ka.-3) shows that same has been lodged by Dinesh Chandra Awasthy, first informant/brother of deceased Sanjay Awashti on 31.12.2007 at 8.30 PM. Accused-appellant Subodh Awasthy has been nominated as solitary named accused. The date, time and place of occurrence as mentioned in F.I.R. is 31.12.2007 at 8.30 PM. in front of house of first informant at Village Bada Gaon, District-Kanpur Dehat. Distance between place of occurrence and Police Station has been mentioned as 7 Kms. F.I.R. has been registered on 31.12.2007 at 9.25 PM i.e. 55 minutes after occurrence.
6. As per prosecution story as unfolded in F.I.R., Sanjay Awasthy, younger brother of first informant had a scuffle with one Subodh Awasthy, resident of same Village. Both were challaned under Section 151 Cr.P.C. Five to six days before date of occurrence, battery of Tractor belonging to Subhodh Awasthy was stolen when same was parked in front of house of Subodh Awasthy. As a result of aforesaid, Subodh Awasthy used to frequently indulge in abusing others. On the fateful day i.e. 31.12.2017 at around 8.00 PM, Sanjay Awasthy was returning home from Aunaha Market. He was stopped by Subodh Awasthy and thereafter, he started abusing him. Subsequently, Babu Ram Awasthy, father of Sanjay Awasthy and his daughter Bitti reached on spot and brought Sanjay Awasthy home. After a short-time, Subodh Awasthy again came to the house of first informant-Sanjay Awasthy and started abusing him. On this, Sanjay Awasthy requested Subodh Awasthy to stop abusing him whereupon Subodh Awasthy fired at Sanjay Awasthy. The same struck Sanjay Awasthy on his chest. Alongwith Sanjay Awasthy one Naresh @ Sallar Shukla was also present at the place of occurrence. Af
