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2021 Supreme(All) 1127
IN THE HIGH COURT OF ALLAHABAD
ATTAU RAHMAN MASOODI, MANISH KUMAR, JJ.
Ashwani Kumar - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No.2104, 2078 of 2007
Decided on : 21-12-2021
Advocate Appeared:
For the Appellant : Rana Mritunjay Singh, Rajendra Prasad Mishra, Rishad Murtaza, Udai Pratap Singh
For the Respondent: N.S.Chauhan
Point of Law: Court may observe that the plea of self defence on an exception appended to Section-300 IPC on the strength of evidence available on record is open to be raised at the appellate stage for it is the duty of the trial court and the appellate court both not to ignore any relevant aspect of the case that has a bearing upon his being held guilty.
Headnote:
Criminal Procedure Code,1973 – Sections 313 and 161 - Indian Penal Code,1860 – Sections 307,147,300,148,302,149,404 and 396 - Arms Act - Section 3 r/w 25 - Appeal against conviction – Offence of murder – Examination of accused - FIR arising out of Case Crime under Sections 302, 307, 396 IPC, P.S. that informant son of gave an application - Son were killed by appellants his brothers had intentionally taken their tractor full of potatoes through fields of informant breaking its in consequence of which a verbal exchange had taken place between them - Uncle's son were digging potatoes in field armed accused tried to repeat act to which he objected - Ashwini Kumar fired a shot which he missed made an air shot with his licensee gun in exercise of right of private defense - Anil Kumar who tried to pick gun of his father was immediately shot - He died on the spot.
Finding of the Court :
Appellants has died during pendency of appellate proceedings while incarceration - Court would equally note that evidence of site plan is completely silent on objectionable course/route that was adopted by appellants one day before nor has it been shown on day of occurrence that would give any reason to deceased to approach towards appellants to hurl abuses or opening first fire which gave rise to sudden provocation - Evidence or site plan offers no explanation of the tractor loaded with potatoes that was attempted to be brought and driven through land of deceased and the independent witnesses were neither produced nor their position shown in site plan unlike appellants - Absence despite defence evidence having been led to prove his absence was wrongly disbelieved body of Anil Kumar (deceased) was recovered half a kilometer away from place of occurrence and as per medical opinion he died of loss of blood - Prosecution as a matter of routine does not lay emphasis production of independent witnesses during the course of trial or fails to record their statements during investigation - Such a lapse on part of investigating agency must be viewed seriously by courts of law and time is not far when courts may have to invoke suo motu powers to summon such witnesses for which there ought to exist a witness protection law.
Result: Appeals are partly allowed
JUDGMENT :
A. Subject Matter
1. Under challenge in the present appeals is the judgment and order dated 22.08.2007 passed by learned Additional District and Session Judge in Sessions Trial No.216 of 1999 arising out of case crime no. 50 of 1999 under Sections 148, 302, 149, 404 IPC at Police Station Bangarmau District Unnao and Sessions Trial No. 217 of 1999 arising out of case crime no.51 of 1999 under Section 3 r/w 25 Arms Act at Police Station Bangarmau district Unnao whereby the appellants were convicted under Section 302 read with Section 34 Indian Penal Code, 1860 and were sentenced to imprisonment for life and fine of Rs.5000/-only with default stipulation of additional imprisonment of six months. Appellant Ashwani Kumar was further convicted under Section 404 IPC and was sentenced to undergo rigorous imprisonment for a term of one year and fine of Rs.1000/-with default stipulation of additional imprisonment of three months. Moreover, he was convicted under Section 3 r/w Section 25 of Arms Act and sentenced to undergo rigorous imprisonment for a term of two years and fine of Rs.1000/-with default stipulation of additional imprisonment of three months.
B. Facts and Evidence
2. The case of the prosecution, as unfolds from the FIR dated 17.02.1999 arising out of Case Crime No. 50/99 under Sections 302, 307, 396 IPC, P.S. Bangarmau District Unnao, is that the informant Anand Mohan son of Ram Shanker Gaur gave an application in the Police Station Bangarmau on 17.02.1999 that his uncle Ram Naresh Gaur son of Sri Pal and uncle's son Anil Kumar son of Ram Naresh were killed by the appellants and Sanad Kumar son of Ram Swaroop, Avnish Kumar son of Ram Avatar and Parsu son of Pohkar Pasi. On 16.02.1999 appellant Ashwani Kumar and his brothers had intentionally taken their tractor full of potatoes through the fields of informant breaking its Khahee in consequence of which a verbal exchange had taken place between them. On 17.02.1999, while the informant, his father, his uncle Ram Naresh, uncle's son Anil Kumar and daughter Vasundhara Devi were digging potatoes in the field of Ram Naresh, the armed accused tried to repeat the act to which he objected. Ashwini Kumar fired a shot at Ram Naresh which he missed. Ram Naresh also made an air shot with his licensee gun in exercise of right of private defense. The second shot by Ashwani hit Ram Naresh and he fell. Anil Kumar who tried to pick the gun of his father was immediately shot by Rajesh Kumar, Mithlesh Kumar and Atul Kumar. He died on the spot. The accused then attacked the informant and his other family members present, but they fled to save their lives. Ashwani Kumar took away the licensee gun of Ram Naresh with him.
Injured Ram Naresh, informant and Vasundhrara Devi went to police station to lodge an FIR. Ram Naresh died on the way to hospital from ante-mortem injuries.
3. On 18.02.1999 the police arrested the accused persons from Hanuman Mandir before village Vasiyat Kheda. Upon search, a single barrel gun, factory made, gun no.6382 and four live cartridges(12 bore red colour), out of which three were of No.1 and one was of No.2, in the leash kept on shoulder were recovered from the possession of appellant Ashwani Kumar. In furtherance of this recovery, the FIR dated 18.02.1999 arising out of Case Crime No. 51/99 under Section 25 Arms Act, P.S. Bangarmau, District Unnao was registered.
4. The Charge-sheet was filed against the accused under Sections 302,307 and 396 IPC and Section 3/25 Arms Act, 1959. The case was committed to the Session Court, Unnao for trial. The trial court framed charges under Sections 148 and 302/149 against all the 8 accused namely Ram Lakhan, Ashwani Kumar, Mithlesh Kumar, Atul kumar, Sanad Kumar, Awanish Kumar, Rajesh Kumar and Parshuram and under Section 404 IPC against Ashwani Kumar in Sessions Trial No. 216/99 and also under Section 25 Arms Act, 1959 in Sessions Trial No. 217/99.
5. In order to prove its case the prosecution had testified P.W.-1 the informan
