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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Sanjay Sharma - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No.3667 of 2018
Decided on : 24-12-2021
Indian Penal Code, 1860 - Sections 302 and 504 - Arms Act - Section 25 - Criminal Procedure Code, 1973 - Section 161, 82, 83 and 313 - Offence of Intentional insult with intent to provoke breach of peace and Murder - Testimony of witnesses - Appeal against conviction - Injuries and Weapon - Allegation that his wife (PW-3) and deceased along with his nephew (PW-2) went to attend function of ring ceremony (Sagai) of his relative and in function of ring ceremony (Sagai), appellant, who is son-in-law of Dev Dutt Sharma, was also present; Appellant called deceased on roof and asked him to bring water for liquor; when deceased refused, appellant started abusing him. On hearing noise, PW-1's wife and nephew (PW-2) arrived at roof and they witnessed that appellant, in a fit of anger, shot deceased as a result whereof, his son deceased fell down and appellant-Sanjay Sharma managed to escape.
Finding of the Court :
Statement recorded by Investigating Officer during investigation under Section 161 Cr.P.C. is well settled that on basis of such statements, accused cannot be convicted - Court view that although arrest of appellant after such a long period of time may create suspicion against him, but merely on this basis he cannot be convicted. Further, although, during investigation, Investigating Officer moved an application under Section 82/83 Cr.P.C. against appellant, but application under Section 83 Cr.P.C. moved by Investigating Officer was rejected by trial court, therefore, merely on ground of delay in arrest, appellant cannot be convicted - Trial court also relied on a circumstance that in ring ceremony (Sagai) function, appellant-Sanjay Sharma fired three celebratory shots, which shows appellant had used firearm on that day. Court view, this fact could not have been noticed as this fact does not emanate from substantive evidence. Though, it might be part of case diary. Perusal of statement of S.I. Paan Singh (PW-9) shows that he received a C.D., which was given by brother of appellant, and he noted contents of C.D. in case diary too, but neither the C.D. was produced by prosecution nor contents of C.D. noted in case diary were proved during trial. Therefore, merely on narration of these facts in case diary, it cannot be accepted that appellant Sanjay Sharma fired three shots by way of celebratory fire - Prosecution has failed to prove guilt of appellant beyond all reasonable doubt and evidence produced by the prosecution is of such nature, on the basis of which, conviction of appellant in present case is not possible.
Result: Appeal allowed
JUDGMENT :
Sameer Jain, J.
1. The present appeal has been preferred by the appellant against the judgment and order dated 8.6.2018 passed by Additional District and Sessions Judge, Court No.9, Bulandshahar in Sessions Trial No. 247 of 2017 (State Vs. Sanjay Sharma) arising out of Case Crime No. 69 of 2016, under Section 302 IPC and Sessions Trial No.69 of 2018 (State Vs. Sanjay Sharma), under Section 25 of Arms Act arising out of Case Crime No. 70 of 2016, by which, learned trial court convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment with fine of Rs.25,000/(Rs. Twenty Five Thousand) and in default of payment of fine one year additional imprisonment; and under Section 25 of Arms Act and sentenced the appellant to undergo three years rigorous imprisonment with fine of Rs.5000/(Rs. Five Thousand) and in default thereof three months additional imprisonment.
2. The prosecution story, in nutshell, is that on 16.02.2016, Rajendra Sharma (PW1) lodged First Information Report of the present case under Sections 302, 504 IPC at Police Station Gulawathi, District Bulandshahar against appellant-Sanjay Sharma, which was registered as Case Crime No. 69 of 2016 with the allegation that on 16.02.2016 his wife Smt. Laxmi (PW3) and his son Ankit @ Lala (deceased) aged about 15 years along with his nephew Rakesh Sharma (PW2) went to attend the function of ring ceremony (Sagai) of his relative, namely, Dev Dutt Sharma, and in the function of ring ceremony (Sagai), the appellant, who is soninlaw of Dev Dutt Sharma, was also present; at about 3.00 P.M. the appellant Sanjay Sharma called Ankit (deceased) on the roof and asked him to bring water for liquor; when Ankit (deceased) refused, appellant Sanjay Sharma started abusing him. On hearing the noise, PW1's wife Smt. Laxmi and nephew Rakesh Sharma (PW2) arrived at the roof and they witnessed that appellant-Sanjay Sharma, in a fit of anger, shot Ankit at about 3.30 P.M., as a result whereof, his son Ankit fell down and appellant-Sanjay Sharma managed to escape. It is mentioned in the FIR that information of the incident was given by informant's wife.
3. After registration of the FIR, police arrived at the house of Dev Dutt Sharma and investigation was started. During investigation, on same day i.e. on 16.02.2016, a country made pistol was recovered from the roof of the house of Dev Dutt Sharma in the presence of Rajendra Sharma (informant) P.W.1 and Sri Nanak Chandra Sharma. The Investigating Officer prepared recovery memo of country made pistol as (Ext.Ka11). On same day i.e. on 16.02.2016, Investigating Officer collected blood stained and plain scrape of roof from the spot and prepared recovery memo (Ext. Ka12). Thereafter, inquest report of the dead body of Ankit was prepared on 16.02.2016 as (Ext.Ka2) and postmortem report of the deceased (Ankit) was prepared as (Ext.Ka8). During postmortem, doctor found two firearm wounds on the body of the deceased, one was entry and the other was exit. Both injuries communicating to each other. After investigation, Investigating Officer submitted chargesheet on 23.05.2017 against the appellant, under Sections 302, 504 IPC as (Ext. Ka14) and also submitted chargesheet against him under Section of 25 Arms Act on 30.06.2017. As the case under Arms Act was related to the present case both the cases were committed to the Court of Session. After committal of the case, on 29.07.2017, the trial court framed charges against the appellant under Sections 302 and 504 IPC. On 22.02.2018 charge was also framed under Section 25 of Arms Act. Appellant pleaded not guilty and claimed trial.
4. During trial, prosecution examined 13 witnesses. Out of 13 witnesses, 5 witnesses, namely, Rajendra Sharma (PW1), Rakesh Sharma (PW2), Smt. Laxmi (PW3), Smt. Seema (PW4) and Virendra (PW5) are the witnesses of fact whereas the rest are formal witnesses.
5. After recording the statement of prosecution witnesses, learned trial court examined the appella
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