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IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, BRIJ RAJ SINGH, JJ.
State of U.P. – Appellant
Versus
Buddha – Respondent
Capital Cases No.2 of 2020, Jail Appeal No.364 of 2020
Decided on : 09-05-2022
Penal Code, 1860 - Sections 302/34, 307, 323, 452/34 - Arms Act- Section 3/25- Ante-Mortem Injuries-Dacoity and murders-Rarest of rare case-Death sentence - Conviction based on circumstantial evidence alone -Failure of the prosecution to discharge its onus -A case of residual dues -Where the other peculiar mitigating circumstances outweighed aggravating circumstances – Para 62, 63
Finding of the Court :
convict/appellant is entitled to the benefit of doubt on the ground that it cannot be with certainty held that convict/appellant had common intention, viz. none of the prosecution witnesses deposed before the trial Court that before the incident, convict/appellant and other two unknown assailants had met and planned the crime nor the prosecution had stated that the convict/appellant armed with deadly weapon had entered the house of the informant and committed the murder of the deceased but the evidence of the informant P.W.1-Rakesh Kumar shows that on the date of the incident at about 2:00 a.m., when convict/appellant and two other assailants entered into the house, his nephew raised alarm and on his alarm, he woke up and saw that convict/appellant and other two assailants assaulted his mother. Thus, the prosecution has failed to establish the common intention of the convict/appellant to murder the deceased, hence conviction and sentence of the convict/appellant for the offence with the aid of Section 34 I.P.C. is not sustainable.
Result: Partly allowed
JUDGMENT :
Brij Raj Singh, J.
This appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order dated 24.01.2020 passed by the IVth Additional District and Sessions Judge/Special Judge/E.C. Act, Lucknow in Sessions Trial No.471 of 2010, arising out of Case Crime No.577 of 2009, under Sections 302/34, 307/34, 323/34, 452/34 I.P.C. and in Sessions Trial No.472 of 2010 arising out of Case Crime No.580 of 2009, under Section 3/25 Arms Act, Police Station Malihabad, District Lucknow, whereby the appellant was convicted and sentenced under Section 302/34 I.P.C. to death sentence and fine of Rs.25,000/-and in default of payment of fine to undergo simple imprisonment of one year, under Section 307/34 I.P.C. to rigorous imprisonment of ten years and fine of Rs.10,000/-and in default of payment of fine to undergo simple imprisonment of additional six months, under Section 323/34 I.P.C. to simple imprisonment of one year, under Section 452/34 I.P.C. to rigorous imprisonment of seven years and fine of Rs.5,000/-and in default of payment of fine to undergo simple imprisonment of additional three months, under Section 3/25 Arms Act to rigorous imprisonment of two years and fine of Rs.2,000/-and in default of payment of fine to undergo simple imprisonment of additional one month.
2. As per prosecution case, complainant -Rakesh Kumar lodged report at 4.50 A.M. on 12.12.2009. The complainant stated in the F.I.R. that at about 2.00 A.M. in the night of 12.12.2009 his mother Smt. Sursati, wife of late Sukru, nephew Suraj, aged about 10 years and niece Shivangi, aged about 8 years, were sleeping inside the house and the complainant was also sleeping beside them. The brother-in-law of complainant – Buddha, son of Galhu Raidas, resident of Village Raja Kheda, Police Station Mall, was married to the complainant’s sister Deshpati prior to 10 years, but there was no cordial relation between them that is why Dehspati was married to Panchram, resident of Village Vilauli Fatehpur, Police Station Barabanki. She had come to meet the family members on Sunday and after meeting them she returned back. Buddha had enmity with the family and he entered into the house along with his two companions and he killed complaint’s mother Sursati, nephew Suraj by using sharp-edged weapon and caused serious injuries on his niece Shivngi. Buddha and his companions assaulted the complainant and ran away from the place.
3. On the basis of written Tahrir, the report was lodged against the accused-Buddha and the Investigation Officer, Chandra Bhan Yadav investigated the case and after recording statement the charge sheet was filed in the Court under Sections 302, 307, 323, 452 I.P.C.
4. S.H.O. -Rajveer Singh lodged report on 15.12.2009 at 19.00 hours, in which it has been mentioned that Buddha was arrested by him and on his pointing out, the Banka was recovered and case was lodged under Section 3/25 Arms Act. The charge sheet was filed under Section 3/25 Arms Act. The charges were framed against Buddha under Sections 302/34, 307, 323, 452/34 I.P.C. on 20.09.2010 and similarly the charges were framed under Section 3/25 Arms Act on 20.09.2020.
5. Since both the cases were arising out of the same case crime, therefore, both the cases were connected together and trial of both the cases were held together.
6. The prosecution had produced as many as 15 witnesses to prove the case. P.W.-1 Rakesh Kumar, P.W.-2 Ram Chandar, P.W.-3 Constable Raj Dev, P.W.-4 Nazrul Hasan, P.W.-5 Rajesh, P.W.-6 Harish Chandra, P.W.-7 Deshpati, P.W.-8 Dr. S.N.S. Yadav, P.W.-9 Dr. Sunil Kumar Yadav, P.W.-10 Vinod Kumar Pandey, P.W.-11 Kishan Lal Jatav, P.W.-12 Retired Inspector Chandra Bhan Yadav, P.W.-13 Constable Tribhuvan Singh, P.W.-14 Raj Veer Singh, P.W.-15 S.I. Amrish Kumar.
7. The prosecution had also produced 35 exhibits on record. The F.S.L. report dated 25.02.2010, 18.05.2010 and 05.03.2010 were also available on record.
8. The accused has produced D.W.-1 Shankar Ram, D.W.-2 Sundar Lal
The court ruled that corroborative evidence is essential in murder cases, especially when convicting based on eyewitness testimony.
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