Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 229

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Sunita Agarwal, Subhash Chandra Sharma, JJ.
Bachcha Pandey @ Subhas – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 35 & 64 of 2006
Decided On : 04-04-2022

Advocates:
Advocate Appeared:
For the Appellant : Prabhakar Singh, Bhuvan Raj (A.C.), Manish Pandey, Radhey Krishna Pandey

Point of Law: Mere fact that it is not established that the recovered country made pistol was used in causing the murder, in itself cannot be made the base for discarding the reliable testimony of the eye witnesses, of those who had seen the incident and identified the appellants while making fire on the deceased.

Headnote:
Indian Penal Code, 1860 - Section 302/34 – Appeal against Conviction – Offence of Murder – Demand of money - On refusal, they threatened to kill him and went away In the meantime, hearing noise, his father came into the roo- . Exhortation -Both the accused fled away on their making hue and cry – Whether the alleged material contradictions in the testimony of witnesses make it unreliable. Further, whether the appellants have been implicated due to enmity with the first informant and police . Para 56.
Finding of the Court: Liability of appellant Bachcha Pandey is concerned, he is said to have exhorted to shoot the deceased - Both the appellants came together at the house of deceased and made a demand for money from him. On refusal, they threatened to kill him and went away at about 8.30 P.M. They both came again there at 8.45 P.M. with lathi and tamancha - On the exhortation of appellant Bachcha Pandey, appellant Shiv Kumar @ Pinku made fire pointing at the head of deceased, they both then went away together through the backside lane -This conduct of appellants shows their common intention to commit murder of deceased Sunil Kumar in furtherance of their prearranged plan - They are, therefore, liable for criminal act done by one of them with the aid of Section 34 I.P.C - Prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and the view taken by the learned Sessions Judge does not suffer from any infirmity.
Result: Appeals dismissed.

JUDGMENT :

Subhash Chandra Sharma, J.

1. These criminal appeals emanate from the judgment and order dated 21.12.2005 passed by the learned IInd Additional Sessions Judge, Court No. 1, Mirzapur in Session Trial No. 52 of 2004 (State Vs. Shiv Kumar @ Pinku and another) arising out of Case Crime No. 12 of 2004, under Section 302 read with Section 34 IPC, Police Station Kotwali City, District Mirzapur, whereby appellants Shiv Kumar @ Pinku and Bachcha Pandey @ Subhas have been convicted and sentenced under Section 302/34 IPC with life imprisonment and fine of Rs.5,000/- each. In default of payment of fine, the appellants have to undergo additional imprisonment for a period of six months.

2. The prosecution case in brief is that on 15.01.2004, at about 9.05 p.m., an F.I.R. was lodged at the police Station Kotwali City, District Mirzapur by informant Om Prakash s/o Harishankar r/o Meer Sahab Ki Gali, Kotwali City, Mirzapur by filing a written report stating therein that while his brother Sunil Kumar was sitting with his wife in the room located at the back side of his house, at about 8.30 p.m, Shiv Kumar @ Pinku s/o Lakshman and Bachcha Pandey @ Subhas s/o Vishwambhar Pandey r/o Muhalla Imamganj Babhaiya, Mirzapur came there and demanded money. On refusal, they threatened to kill him and went away. In the meantime, hearing noise, his father Harishankar came into the room. Further, at about 8.45 p.m., Shiv Kumar @ Pinku and Bachcha Pandey again came to the house with country-made pistol and on exhortation of Bachcha Pandey, Shiv Kumar @ Pinku shot fire at his brother Sunil Kumar who had died on the spot. Both the accused fled away on their making hue and cry. There was electric light inside and outside of the house. Dead body of his brother was lying on the spot. Tahreer was scribed by Moolchand s/o Nanhakuram r/o Kotwali City, District Mirzapur.

3. S.S.I. R.D. Kaithal was handed-over the investigation of the case who along with other officials went to the place of occurrence where he conducted the inquest of the body of deceased Sunil Kumar and got the inquest report prepared by S.I. Jitendra Pratap Singh at his own instance and also got prepared other papers required for the purposes of post-mortem. Dead body was sealed and handed over to constable Kedar Rai and home guard Subedar who brought it to the mortuary, District Hospital, Mirzapur.

4. The post-mortem was conducted on 16.01.2004 at about 1.30 p.m. It is mentioned in the post-mortem report that body brought by constable C.P. Kedar Rai and home guard Subedar was received in sealed cloth which tallied with the sample seal. The external condition of the body as described therein is as under:

Average built body. Rigor mortis present.

Antemortem Injury:(1) Fire arm wound of entry of 2.5 c.m. X 1.5 c.m. Oval on shape margins are charred and inverted present over right perieto temporal region of skull, .5 c.m. above from right tragus. (2) Fracture of right occipitoparietal bone with bone loss present. (3) Cross fracture of right occipital bone present. (4) one bullet recovered from the brain matters. (5) Clotted blood with ruptured brain matter found after opening skull.

Cause of death was shock and hemorrhage as result of antemortem injuries.

5. During the investigation, accused-appellant Shiv Kumar @ Pinku was arrested by the police from Janhavi Tiraha at about 12.30 o'clock on 19.01.2004. On interrogation, appellant Shiv Kumar @ Pinku disclosed that he had hidden countrymade pistol at a place in Pakki Sarai at the time of running away from the place of occurrence which he could recover. At his instance, a countrymade pistol was recovered from the southwest corner near the Indra Ghandi Park located at Pakki Sarai at about 13.40 O'clock. Country-made pistol was taken into custody by the police and recovery memo was prepared on the spot by S.S.I. Jitendra Kumar in the presence of the witnesses.

6. The investigating Officer visited the place of occurrence and prepared site plan Ext. Ka-14 re