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2020 Supreme(All) 1286
IN THE HIGH COURT OF ALLAHABAD
B. Amit Sthalekar, Ali Zamin, JJ.
Bilendra and Ors. - Appellants
Vs.
State of U.P. - Respondent
Criminal Appeal No. 1848 of 2001
Decided On : 03-03-2020
For the Appellant : Onkar Singh, Irfan Chaudhary and Swetashwa Agarwal
For the Respondents: A.G.A.
Headnote:
Indian Penal Code - Section 34/ 302 - Undergo life imprisonment - Conclusion that the evidence – Offence of murder – Injury - Investigating Officer recorded the statement of complainant other witnesses, inspected place of occurrence and prepared site - He collected the blood stained and plain earth from place of occurrence and prepared recovery memo - He also took into possession torch from which incident was seen by witnesses and prepared memo woolen sheet etc. were also taken into possession and memo Ext. Ka-11 was prepared - After completing investigation charge-sheet under Section 302 I.P.C. was filed against the accused-appellants before the Court - Whether from evidence led by prosecution charge against appellant for committing murder of deceased with common intention of co-accused is proved and trial Court properly appreciating evidence on record has rightly convicted and sentenced him – Held, One of fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on prosecution and that the general burden never shifts - There can be no conviction on basis of surmises and conjectures or suspicion howsoever grave it may be - Strong suspicion strong coincidences and grave doubt cannot take place of legal proof - Onus of prosecution can't be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate accused nor falsity of defense could take place of proof which the prosecution has to establish in order to succeed though a false plea by at best be considered as an additional circumstance if other circumstances unfailingly point to guilt - In view of opinion of Humble Supreme Court in above referred case it is a settled principle of law that suspicion cannot take place of legal proof and burden of proof squarely rests on prosecution and the general burden never shifts - Considering facts of case attending circumstances, evidence available on record as discussed above and law laid down by Humble Supreme Court come to a conclusion that evidence father and brother of deceased respectively is not inspiring confidence with regard to witnessing appellant-accused at time of incident - There is no iota of evidence against appellant for sharing common intention with main accused for committing offence - Prosecution has failed to prove charge against appellant - Finding of learned trial Court is not based on proper evaluation of evidence on record as such finding of trial Court is perverse - Appeal is allowed
JUDGMENT :
Ali Zamin, J.
1. Heard Sri Irfan Chaudhary, learned counsel for the appellants and learned A.G.A for the State.
2. This appeal has been preferred being aggrieved from the judgment and order dated 8.6.2001 passed in Session Trial No. 873/1998, arising out of Case Crime No. 104 of 1994 (State v. Bilendra @ Virendra and another) by which learned Additional Sessions Judge, (Court No. 3), Muzaffarnagar has convicted the appellants, under Section 302 I.P.C. read with Section 34 I.P.C. and has sentenced them to undergo life imprisonment.
3. The appellant No. 1 Bilendra @ Virendra died during the pendency of the appeal and appeal against him has been dismissed as abated vide order date 3.4.2019. Hence, this appeal is confined only for the appellant No. 2 Sukhpal.
4. According to prosecution version Bijendra, brother of the informant Rajendra had gone to irrigate his field in the evening of 25/26.5.1994. In the night the informant and his father Bholu reached the tube-well carrying dinner of Bijendra. Bijendra was sleeping on a cot in front of the tube-well. Informant and his father at about 3:00 a.m. in the night had gone to look after the irrigation in the adjoining field, where they heard a sound of fire at the tube-well, upon which they rushed to the tube well and saw that Bilendra @ Virendra and Bhura sons of Ramsewak and Sukhpal son of Nirmal were standing close to the cot of the deceased having country-made pistol in their hands. In the meantime Tara Chand son of Behu Gujar also came from the adjoining tube-well. On their exhortation Bilendra fired a shot on the chest of Bijendra from a close range and all the three accused fled away towards west side. They saw very well and identified them, in the torch and moon light. Regarding daul (Medh, plot boundary), deceased had an altercation with Bijendra, Bhura and Sukhpal 8-10 days before the incident.
On the basis of written report Ext. Ka-1 Case Crime No. 104 of 1994, under Section 302 I.P.C. against the accused-appellants and another Bhura under chik F.I.R. Ext. Ka-12 was registered on 26.5.1994 at 5.30 a.m. Investigation of the case was entrusted to S.H.O. Ashok Kumar Singh (P.W. 4). Investigating Officer reached the spot and got prepared inquest memo Ext. Ka-2 and relevant papers i.e. letter to C.M.O. Ext. Ka-3, letter to R.I. Ext. Ka-4, photo lash Ext. Ka-5, chalan lash Ext. Ka-6 by S.I. p.m. Kashyap, in his presence and thereafter, dispatched the dead body for post-mortem.
5. Dr. V.K. Shukla (P.W. 3) conducted autopsy on the dead body at 4.50 p.m. on 26.5.1994 and prepared a report (Ext. Ka-2A). According to the post-mortem report following injuries were found on the dead body:
1. Gun shot wound of entry 1.5 cm x 1 cm x cavity deep in front of chest left side 6.5 cm from nipple in 11. O'clock position blackening present in an area of 6 cm x 5 cm around the wound.
2. Gun shot wound of exit 3 cm x 2 cm on the back of chest right side scapular region.
In internal examination 2nd and 3rd ribs were found fractured, both lungs were lacerated. In opinion of the doctor cause of death of the deceased was found shock and haemorrhage as a result of ante-mortem injuries and death was possible at 3.00 a.m. in the morning of 25/26.5.1994.
6. Investigating Officer recorded the statement of complainant Rajendra, Bholu and other witnesses, inspected the place of occurrence and prepared site plan Ext. Ka-7. He collected the blood stained and plain earth from the place of occurrence and prepared recovery memo Ext. Ka-8. He also took into possession the torch from which incident was seen by the witnesses and prepared memo Ext. Ka-10. The woollen sheet (chadar) etc. were also taken into possession and memo Ext. Ka-11 was prepared. After completing the investigation, charge-sheet (Ext. Ka-13), under Section 302 I.P.C. was filed against the accused-appellants before the Court of C.J.M., Muzaffarnagar.
7. Since offence under Section 302 IPC is exclusively triable by the Court of Sessions therefore, l
