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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Shivnath Awasthi – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. - 824 of 2007
Decided On : 22-2-2022
Indian Penal Code, 1860 - Sections 302 and 307 – Appeal against Conviction – Offence of Murder - PW 1 prepared by PW-6, is that informant's brother (the deceased) was a tenant of Shiv Nath Awasthi (accused-appellant). The deceased resided in that tenanted accommodation with his family, informant's nephew, PW 2 requested by the accused-appellant to increase rent for accommodation - On that request, PW 2 told accused-appellant that he would have to consult his mother for the demanded raise in the rent - On this, accused -appellant went inside his house, brought his licensed gun and, at about 6:00 pm, fired a shot at PW 2 which struck him on the side of his chest and hand – Para 31.
Finding of the Court: Distance from where the shots were fired matches with ocular account, inasmuch as, the shot fired at PW-2 is from a distance of two lathis, pellet injuries found on body of PW-2 shows that it could be from an SBBL 12 bore gun fired from a distance of over 6 to 8 feet as there was no blackening around the entry wound. Similarly, injuries sustained by deceased are preferable to 12 bore weapon which, by forensic evidence in respect of empties recovered from spot, were proved to have been fired from the SBBL 12 bore gun licensed to the appellant; and the medical evidence also indicates that death of the deceased could have occurred on or about the time fixed by the prosecution. Other than that, the deceased was killed in lane (Gali), towards north, in front of the house of the accused-appellant wherein, in part thereof, the deceased and PW-2 were residing as tenant, tested from all angles, the ocular account rendered by PW 2 is reliable and trustworthy and suffers from no such inconsistency or improvement or embellishment as to render it unworthy of acceptance - As regards the contention that how could the deceased find time to bandage PW-2 when everything had happened in quick succession, suffice it to say that no question was put to PW-2 as to what kind of bandage was applied by the deceased.
Result: Appeal dismissed.
JUDGMENT :
1. We have heard Sri Manish Jaiswal, learned counsel, appointed by the High Court Legal Services to represent the appellant who is in jail; Sri J.K. Upadhyay and Sri H.M.B. Sinha, learned AGA for the State and have perused the record.
2. This appeal has been filed against the judgment and order dated 10.1.2007 passed by Additional Session Judge, Court No. 3, Shahjanpur in Sessions Trial No. 971 of 2005, connected with Sessions Trial No. 972 of 2005, thereby convicting the appellant under Sections 302 and 307 IPC (in Sessions Trial No. 971 of 2005 arising out of case crime No. 169 of 2005, Police Station-Ram Chandra Mission, Shahjahanpur) and under Section 27 of Arms Act ( in connected Sessions Trial No. 972 of 2005 arising out of case crime No. 170 of 2005, Police Station-Ram Chandra Mission, Shahjahanpur) and sentencing him to imprisonment for life under Section 302 IPC; 10 years rigorous imprisonment with fine of Rs. 5,000/-and a default sentence of 5 months rigorous imprisonment under section 307 IPC and 5 years rigorous imprisonment with fine of Rs. 5,000/-and a default sentence of 5 months rigorous imprisonment under section 27 Arms Act; with a direction that all the sentences shall run concurrently.
Introductory facts
3. Prosecution case in a nutshell, which was instituted on a written report (Ex. Ka-1) lodged by PW 1 (brother of deceased Nanhe @ Man Singh) of which chik FIR (Ex-Ka.14) was prepared by PW-6, is that informant's brother (the deceased) was a tenant of Shiv Nath Awasthi (accused-appellant). The deceased resided in that tenanted accommodation with his family. On 6.7.2005, informant's nephew, namely, Rajveer @ Raju (PW 2) (the injured) was requested by the accused-appellant to increase the rent for the accommodation by Rs. 100/-. On that request, PW 2 told the accused-appellant that he would have to consult his mother for the demanded raise in the rent. On this, the accused -appellant went inside his house, brought his licensed gun and, at about 6:00 pm, fired a shot at PW 2 which struck him on the side of his chest and hand. On being struck by the shot, PW-2 ran towards the house of Bhagwan Das (not examined) and fell there. On hearing the gun shot, the informant and others arrived. The accused appellant also came there with his licensed gun and fired a shot at Man Singh @ Nanhe (the deceased), which resulted in his death. By alleging that the body of the deceased, who died at the spot, and the injured are lying at the spot, FIR was lodged by PW 1 on 6.7.2005 at 18:25 hours at P.S. Ram Chandra Mission, Shahjahanpur, which is at a distance of 1 km from the spot. The injured Rajveer @ Raju (PW 2) was examined for his injuries at about 7:20 pm by Dr. S.K. Dhruv (PW-7) on 6.7.2005 itself. Injury report (Ext. Ka 16) of Rajveer Singh reveals: (i) multiple gun shot wound on right arm in an area of 17 x 6 cm and right elbow joint on redial (sic) aspect with traumatic swelling in an area 12 x 6 cm on right arm and elbow joint; (ii) multiple gun shot wound in an area of 13 x 4 cm on right side of chest below right nipple; (iii) abrasion 1.8 x 0.6 cm anterior of right side of chest (round in shape) 4 cm below top of right shoulder joint. Injuries (i) and (ii) were kept under observation and x-ray of right arm and chest was advised. Injury (iii) was found simple in nature caused by hard and blunt object. Duration of the injuries was found fresh. X-ray report (Ex. Ka-18) of Rajveer Singh discloses presence of multiple small radio opaque shadow of metallic density on right shoulder including right arm and elbow and three small radio opaque shadow of metallic density on right chest region. The supplementary report of Rajveer Singh (Ext Ka-17) discloses that the injures were simple in nature caused by fire arm.
4. The inquest was conducted at the spot on 06.07.2005 of which report was prepared and exhibited as (Ext. Ka-4). The post mortem of the deceased was conducted on 07.07.2005 at about 3.30 pm. The post mortem rep
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