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IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Birnami And Another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. -5803 of 2007
Decided On : 22-04-2022
Criminal Procedural Code, 1973 - section 437-A - Indian Penal Code, 1860 - Section 302, 34 – Offence of Murder - Appeal Against Conviction – Allegation in the FIR, when PW-1's father (the deceased) was sitting on a cot, smoking a Beedi, the accused-appellants along with one unknown person came and, before the deceased could react, appellant no.2 fired a shot at the deceased – Upon which, PW-1, his brother and his uncle PW-2 who were present there, and many others who arrived on hearing gunshot, made an attempt to apprehend accused but they ran away, brandishing their weapons – Whether PW-1 and PW-2 had opportunity to witness the incident in darkness of night - Probability of such guess-work becomes stronger also from the circumstance that as against a solitary gunshot injury three persons have been roped in, out of which, two have not been assigned any major role except that they came with weapons and escaped with the assailant (Para 30).
Finding of the court :
Prosecution case gets shrouded in suspicion throwing multiple possibilities including a strong probability of incident being a hit and run kind of an incident, witnessed by none, and prosecution story developing on guess-work based on strong suspicion with implication of those with whom deceased had enmity – Probability of such guess-work becomes stronger also from the circumstance that as against a solitary gunshot injury three persons have been roped in, out of which, two have not been assigned any major role except that they came with weapons and escaped with the assailant.
Results : Appeal is allowed.
JUDGMENT :
Manoj Misra, J.
1. This appeal is preferred against the judgment and order dated 24.08.2007/25.08.2007 passed by Sessions Judge, Rampur in Sessions Trial No. 496 of 2005 convicting the appellant no.2 (Tej Pal) under Section 302 I.P.C. and appellant no.1 (Birnami) under Section 302 read with Section 34 I.P.C., and sentencing them to imprisonment for life and fine of Rs. 10,000/- each with a default sentence of one year R.I.
INTRODUCTORY FACTS
2. On a typed written report (Exb. Ka-1) submitted by PW-1 (son of the deceased -Sitaram) at 00.30 hours, on 07.07.2005, Case Crime No. 227 of 2005 was registered at P.S. Milak, District Rampur of which Chik FIR (Exb. Ka-15) was prepared. The allegation in the FIR is that on 06.07.2005, at about 9 pm, when PW-1's father (the deceased) was sitting on a cot, smoking a Beedi, the accused-appellants along with one unknown person came and, before the deceased could react, appellant no.2 (Tej Pal) fired a shot at the deceased. Upon which, PW-1, his brother-Sompal (not examined) and his uncle Indraman (PW-2), who were present there, and many others who arrived on hearing gunshot, made an attempt to apprehend the accused but they ran away, brandishing their weapons. It was alleged that the informant recognised the two named accused in the light of lantern and torch but could not recognise the third person. It was also alleged that the deceased was taken on a cart for medical attention but by the time they could cross the river the deceased expired therefore, he was brought to Police Chowki Param.
3. Inquest was completed on 07.07. 2005 by about 10.30 hrs at Police Chowki Param whilst the body of the deceased was on a Dunlop cart (a bullock cart with tyres). The inquest report (Exb. Ka-3) was prepared by S.C. Tyagi (PW-4). The inquest report notices that the body was wrapped in a bed spread / mattress and was lying in a supine position on that Dunlop cart.
4. Autopsy was conducted by Doctor M.A. Ali (PW-3) on 07.07.2005 at about 4.30 pm. Autopsy report (Exb. Ka-2), in respect of body condition and injuries, recites:-
(i) External Examination :-
Rigor mortis passed off in neck but present in both upper and lower extremities. No sign of decomposition.
(ii) Ante-mortem injuries : Firearm wound measuring 5.5 cm x 4 cm x 16 cm situated over right side of upper part of abdomen, 12.5 cm below right nipple. Margins abraded and blackening present (wound of entry). The tract of wound directed inwards and upwards. No wound of exit found.
(iii) Internal Examination:-
(a) Seventh and Eighth ribs, on right side broken;
(b) Underlying pleura on right side lacerated;
(c) Right lung lacerated. 10 pellets recovered from right lung. Two litres of clotted blood present in right pleural cavity. Six pellets and one cock recovered from right pleural cavity. Left lung -NAD and Pale. Pericardium-NAD and pale.
(d) Heart – NAD and empty.
(e) Cavity-about 1 litre of clotted blood present in abdominal cavity.
(f) Stomach: NAD, 150 ml of semi-digested food matter present.
(g) Small intestine -NAD -digested food matter and gases present.
(h) Large intestine -NAD, faecal matter and gases are present.
(i) Liver -lacerated, 12 pellets recovered from liver.
(j) In all 28 pellets recovered from the body
(iv) Cause of death: Haemorrhage and shock due to ante-mortem firearm injury.
(v) The estimated time of death -About one day before.
5. After completion of the investigation, two persons, namely, the appellants, were charge-sheeted by PW-4 vide charge-sheet dated 22.07.2005 (Exb. Ka-14) on which cognisance was taken on 11.08.2005 and the case was committed to the Court of Session where, vide order dated 02.01.2006, the appellants were charged for offence punishable under Section 302 read with Section 34 I.P.C. The accused-appellants pleaded not guilty and claimed to be tried.
PROSECUTION EVIDENCE
6. During the course of trial, the prosecution examined four witnesses, their testimony, in brief, is noticed below:-
(i) PW-1 -Surendra (informant -son o
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