Back
IN THE HIGH COURT OF ALLAHABAD
Subhash Chand, J.
Amar Singh - Appellant
Vs.
State of U.P. - Respondent
CRIMINAL APPEAL No. - 2018 of 2019
Decided On : 26-03-2021
Code of Criminal Procedure, 1973 - Section 313 and 161 - Arms Act - Section 25/27 – Indian Penal Code, 1860 – Section 304 and 103 - Indian Evidence Act, 1982 - Section 105 - Causing death by negligence - Commencement and continuance of right of private defence of property - Whether appellant is entitled to take the benefit of general exceptions of self defence of person and property in view of Section 105 of Act, 1982 - Allegations that in intervening night he heard noise from house of Gaya Prasad son of Jhurai that some miscreant has intruded in his house. He and people of village attracted to house of Gaya Prasad and it was told that miscreant had entered in Attari having crossed courtyard of house. Despite alarming, miscreant did not come out, appellant son of Gaya Prasad opened fire with licensee gun of his father on miscreant presuming him to be miscreant and that person died on the spot. Thereafter he was brought down from Attari and it was found that person was Indersen son of Ram Milan Yadav of their family. Therefore murder of cousin brother was committed under misconception that he was miscreant. His dead body is lying on spot.
Finding of the Court: It is proved that the deceased had intruded in house of accused at 1.30 O'clock in wee hours of Amavashya night which caused reasonable apprehension in the mind of inmates of the house that some miscreant had intruded in their house. Consequently the inmates of the house of accused raised alarm. P.W.1- informant and P.W.2- also attracted immediately at the place of occurrence. The so called miscreant had hidden himself in the Attari of the house and despite raising alarm even in presence of prosecution witnesses P.W.1 and P.W.2, he did not appear to disclose his identity. The appellant Amar Singh who was armed with licensee gun of his father, also raised alarm, when so called miscreant did not come out from the Attari, he under the misconception opened fire to avoid any mishappening - Re-appreciation of evidence on record, this Court finds that the finding recorded by the trial court holding appellant Amar Singh guilty for the offence under Section 304-I of IPC and Section 25/27 of Arms Act deserves to be set aside.
Result: Criminal appeal is allowed
JUDGMENT :
Subhash Chand, J.
The instant appeal on behalf of accused-appellants under Section 374(2) Cr.P.C. is preferred against the judgment and orders dated 01.03.2019 passed by 3rd Additional Sessions Judge, Chitrakoot, in Sessions Trial No. 2 of 2008, State vs. Amar Singh and another & Sessions Trial No. 3 of 2008 (State Vs. Amar Singh), whereby the appellants have been convicted and sentenced as follows:
| Sessions Trial No. 2 of 2008 | |
| Appellant -Amar Singh | |
| 304 IPC Rs.20,000/- | Ten years rigorous imprisonment with fine of and in default of payment of fine six months additional simple imprisonment. |
| Sessions Trial No. 3 of 2008 | |
| Appellant -Amar Singh | |
| 25/27 Arms Act | Two years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine two months' additional simple imprisonment. |
1. In the present appeal facts of the prosecution case may be summarized as under :
Brief facts giving rise to the present Criminal Appeal are that the informant Kallu Ram son of Chunkoo, resident of village and post Chillimal, P.S. Rajapur, District Chitrakoot moved written information on 15.07.2007 with these allegations that in the intervening night at 1.30 O'clock, he heard the noise from the house of Gaya Prasad son of Jhurai that some miscreant has intruded in his house. He and the people of the village attracted to the house of Gaya Prasad and it was told that the miscreant had entered in the Attari having crossed the courtyard of the house. Despite alarming, the miscreant did not come out, Amar Singh (appellant herein) the son of Gaya Prasad opened fire with the licensee gun of his father on the miscreant presuming him to be miscreant and that person died on the spot. Thereafter he was brought down from the Attari and it was found that the person was Indersen son of Ram Milan Yadav of their family. Therefore, the murder of cousin brother was committed under misconception that he was miscreant. His dead body is lying on the spot. This written information was given with the police station Rajapur, on which case crime no.80 of 2007, under Section 304 IPC and case crime no.81 of 2007, under Section 25/27 of Arms Act, were registered against the appellant-Amar Singh; while case crime no.82 of 2007, under Section 30 of the Arms Act, was registered against Gaya Prasad. The Investigating Officer after having concluded the investigation filed charge-sheet against accused Amar Singh in case crime no.80 of 2007, under Section 304 IPC, case crime no. 81 of 2007, under Section 25/27 of Arms Act and in case crime no.82 of 2007, under Section 30 of Arms Act filed charge-sheet against accused Gaya Prasad Yadav. The magistrate concerned took cognizance on the charge-sheet of case crime nos.80 of 2007 & 81 of 2007 against Amar Singh and the case being triable by the court of Sessions committed the file to the Court of Sessions for trial.
2. The trial court registered the Sessions Trial No.2 of 2008 (State Vs. Amar Singh) arising out of case crime no. 80 of 2007, under Section 304 IPC, P.S. Rajapur, District Chitrakoot and S.T. No. 3 of 2008 (State Vs. State), arising out of case crime no. 81 of 2007, under Section 25/27 of Arms Act, P.S. Rajapur, District Chitrakoot. The trial court framed the charge against the accused-Amar Singh under Section 304 IPC and 25/27 of Arms Act in the respective Sessions Trial Nos. 2 of 2008 and 3 of 2008. The charge was read over and explained to the accused Amar Singh, who denied the charge and claimed to be tried.
3. On behalf of prosecution to prove the charge against the accused Amar Singh in documentary evidence filed written information Ext. Ka-1, application dated 25.07.2007 Ext. K-2, inquest report Ext. Ka-6, recovery memo of the blood stained and plain clay Ext. Ka-7, recovery memo of one bullet and two spent cartridges 12 bore Ext. Ka-8, Postmortem report of the de
SupremeToday
Right of private defence - When right of private defence of property extends to causing death if theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that....
The right to private defense under IPC Sections 96-102 allows an individual to use reasonable force to protect oneself from imminent harm, and the assessment of such defense must consider the subject....
The distinction between intention and motive is crucial in determining the nature of the offence, and the duty to separate evidence for each accused is essential in criminal cases.
If right of private defence has not been established (on test of preponderance of probabilities) as required under Section 105 of Indian Evidence Act, if court, on an overall appreciation of facts an....
The right to self-defense under IPC can be invoked if there is reasonable apprehension of death or grievous injury; defense must be proportionate to the threat faced.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
