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IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, GAUTAM CHOWDHARY, JJ.
Tejpal – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 160 of 2011
Decided On : 08-02-2021
Indian Penal Code, 1860 - Section 302 and 452 - Offence of Murder - House-trespass - Appellant Challenged Judgment and Order - Facts of this case are that an F.I.R. was lodged by informant against accused/appellant alleging therein that at about 10:30 a.m. when he was at his grocery shop, he heard firing at late Baburam's house - After hearing that sound, he was going to Baburam's house and at that time deceased-Ajay, nephew of informant came running and shouting for help to the informant from Baburam's house – Accused and his three other companions came there following Ajay. All the four persons were armed with country-made pistols. On seeing the informant, the deceased asked for help and said that Tejpal had fired at him and he fell on the road, all four accused opened fire at deceased-Ajay, whereupon he died on spot –
Finding of the Court:
, Court of the view that conviction of the sole appellant was reversed as in that case also recovery of alleged weapons, on the basis of statement of accused, was not linked to the crime - Vital forensic evidence was withheld by prosecution, there were infirmities in our case as to the oral testimony of witnesses - Benefit of doubt will have to be given to accused as it is not proved by the cogent evidence that evidence adduced pointed to guilt of accused and accused alone - In that view of the matter we also hold that accused could not have been convicted - Foundation of conviction on basis of common intention and constructive liability have been summarised - For reasons to be recorded, we are convinced that judgments relied by learned counsel for appellant would enure for benefit of accused also –
Result: Order accordingly
JUDGMENT :
GAUTAM CHOWDHARY, J.
1. By way of this appeal the appellant has challenged the judgment and order dated 21.12.2010, passed by Additional Sessions Judge, Fast Track Court No. 1, Baghpat, in Sessions Trial No. 488 of 2006 (State vs. Virpal and Others) and Sessions Trial No. 489 of 2006 (State vs. Tejpal), whereby the accused-Tejpal was convicted and sentenced for commission of offence under Section 452 I.P.C. for three years rigorous imprisonment with fine of Rs. 5000/- and for commission of offence u/s 302 I.P.C. for life imprisonment with fine of Rs. 50,000/-.
2. The learned Judge acquitted all the other co-accused and convicted the present accused for commission of offence under Section 302 I.P.C. with fine of Rs. 50,000/-. The moot question which has been raised is could accused who were all facing charges under Section 302 I.P.C. could be acquitted on the same set of evidence led before the learned trial court.
3. Brief facts of this case are that an F.I.R. was lodged by the informant Jai Bhagwan against the accused/appellant alleging therein that on 18.9.2004 at about 10:30 a.m. when he was at his grocery shop, he heard firing at late Baburam's house. After hearing that sound, he was going to Baburam's house and at that time deceased-Ajay, nephew of the informant came running and shouting for help to the informant from Baburam's house. Accused-Tejpal and his three other companions came there following Ajay. All the four persons were armed with country-made pistols. On seeing the informant, the deceased asked for help and said that Tejpal had fired at him and he fell on the road (khadanja). Thereafter, all the four accused opened fire at the deceased-Ajay, whereupon he died on the spot. The informant went to Baburam's house where he found the dead body of Baburam's son, namely, Deepak @ Kale, covered in blood, on the cot in the living room. In that living room deceased Deepak and Ajay were there with other villagers when the accused Tejpal and three others opened fire at Deepak and Ajay. Deepak died on the spot on cot and Ajay in order to save his life tried to flee away but the accused followed Ajay and by indiscriminate firing killed him. The incident took place in front of many villagers but nobody could dare to catch the accused persons. The accused ran away towards fields on western side, hurling threats that whosoever would try to find them, he too would be met with similar consequence.
4. After the investigation was over, charge-sheet was filed against the accused. As the case was exclusively triable by the court of sessions, the same was committed to the sessions court. Charges were framed by the trial court against all the accused/appellant who pleaded not guilty and claimed for trial.
5. The prosecution, in order to prove its case, examined 11 witnesses as under:
| 1. | Jai Bhagwan | PW-1 |
| 2. | Sanjiv Kumar | PW-2 |
| 3. | Smt. Prembala Devi | PW-3 |
| 4. | Sonu Upadhyay | PW-4 |
| 5. | Dr. S.K. Tyagi | PW-5 |
| 6. | Rajendra @ Leelu | PW-6 |
| 7. | S.I. Rajendra Singh Yadav | PW-7 |
| 8. | Meerpal Singh | PW-8 |
| 9. | Sheelchand Tyagi | PW-9 |
| 10. | Jagdish Bhatnagar | PW-10 |
| 11. | S.I. Sethpal Singh | PW-11 |
6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
| 1. | Chik F.I.R. | Ex.ka.1 |
| 2. | Post mortem report of Ajay | Ex.ka.2 |
| 3. | Post mortem report of Deepak | Ex.ka.3. |
| 4. | Panchayatnama of dead body of Deepak | Ex.ka.4 |
| 5. | Photo Nash | Ex.ka.5 |
| 6. | Chalan Nash | Ex.ka.6 |
| 7. | Letter to C.M.O. | Ex.ka.7 and ka.8 |
| 8. | Panchayatnama of dead body of Ajay | Ex.ka.9 |
| 9. | Sample of simple soil | Ex.ka.14 |
| 10. | Sample of blood stained cot | Ex.ka.15 |
| 11. | Recovery of live and empty cartridges | Ex.ka.16 |
| 12. | Sample of blood stained and plain soil | Ex.ka.17 |
| 13. | Site | |
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