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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MAHESH CHANDRA TRIPATHI, CHANDRA KUMAR RAI, JJ.
Amit @ Amit Yadav – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal Nos. 3774, 4433 of 2011
Decided On : 22-08-2022
CRIMINAL APPEAL - [SECTION 302 IPC] - [SUBJECT - MURDER] - [ACT-SECTION REFERRED - SECTION 302/504/506 IPC AND SECTION 25 OF ARMS ACT] - [SUMMARY - BOTH THE CRIMINAL APPEALS WERE FILED AGAINST THE JUDGMENT AND ORDER DATED 03.06.2011 PASSED BY ADDITIONAL DISTRICT AND SESSIONS JUDGE, COURT NO. 6, MORADABAD IN SESSIONS TRIAL NO. 1171/2007 (PAWAN AND OTHERS VS. STATE) CONNECTED WITH SESSIONS TRIAL NO. 1172/2007 (PAWAN YADAV AND ANOTHER) WHEREBY, PAWAN (APPELLANT IN CONNECTED CRIMINAL APPEAL NO. 4433 OF 2011) AND AMIT @ AMIT YADAV (APPELLANT IN LEADING CRIMINAL APPEAL NO. 3774 OF 2011) HAVE BEEN CONVICTED AND SENTENCED UNDER SECTION 302 READ WITH SECTION 34 IPC FOR LIFE IMPRISONMENT WITH FINE OF RS. 20,000/- EACH AND IN DEFAULT OF PAYMENT OF FINE TO FURTHER UNDERGO IMPRISONMENT FOR A PERIOD OF THREE YEARS. THEY HAVE ALSO BEEN CONVICTED AND SENTENCED UNDER SECTION 504 IPC TO UNDERGO R.I. FOR SIX MONTHS WITH FINE OF RS. 1000/- EACH AND UNDER SECTION 506 IPC TO UNDERGO R.I. FOR TWO YEARS WITH FINE OF RS. 4000/- EACH. THEY HAVE FURTHER BEEN CONVICTED AND SENTENCED UNDER SECTION 25 OF ARMS ACT TO UNDERGO THREE YEARS R.I. WITH FINE OF RS. 6000/- EACH. ALL THE SENTENCES HAVE BEEN ORDERED TO RUN CONCURRENTLY.]
Fact of the Case:
THE PROSECUTION ALLEGATIONS AGAINST APPELLANTS, AS WERE CONTAINED IN THE WRITTEN REPORT DATED 09.8.2007 (EXT.KA-1), WERE THAT THE INFORMANT RAJARAM SUBMITTED A WRITTEN REPORT ON 09.8.2007 ALLEGING THEREIN THAT ON 08.8.2007 AT ABOUT 11.00 P.M. WHEN HE WAS ABOUT TO TAKE DINNER, HIS ELDER SON PAWAN, REAL NEPHEW AMIT AND ONE MORE BOY ARMED WITH COUNTRY MADE PISTOLS, ENTERED HIS HOUSE AND PAWAN ABUSED AND THREATENED HIM STATING THAT AS THE COMPLAINANT HAD GIVEN THE SHOP TO AMOD (YOUNGER SON), TODAY HE WILL NOT LET HIM LIVE. THEY GOT THE COMPLAINANT AND HIS WIFE, NAMELY HANSHO DEVI, SAT DOWN AT THE VARANDAH. AT THAT POINT OF TIME, HIS SON AMOD RETURNED TO THE HOME AFTER SHUTTING DOWN THE SHOP AND ALL THREE PERSONS CAUGHT HIM. PAWAN FIRED THE FIRST SHOT WHILE AMIT FIRED THE SECOND SHOT AT AMOD WITH INTENTION TO KILL HIM DUE TO WHICH HE SUSTAINED INJURIES. HE HAD TAKEN HIS INJURED SON TO THE HOSPITAL FROM WHERE HE WAS REFERRED TO ‘SAI HOSPITAL’ AND WHILE THEY WERE LEAVING FOR ‘SAI HOSPITAL’ HIS SON (AMOD) SUCCUMBED TO INJURIES. THE COMPLAINANT WENT TO THE POLICE STATION KOTWALI, MORADABAD ON 09.8.2007 AND SUBMITTED THE WRITTEN REPORT, WHEREUPON CASE CRIME NO. 1333/2007 UNDER SECTION 302/504/506 IPC AND CASE CRIME NO. 1341/2007 UNDER SECTION 25 OF ARMS ACT, POLICE STATION KOTWALI, MORADABAD, WERE REGISTERED AGAINST THE ACCUSED PERSONS.
Finding of the Court:
THE TRIAL COURT CONVICTED AND SENTENCED THE APPELLANTS, AS NOTICED ABOVE, AGAINST WHICH THESE APPEALS HAVE BEEN FILED.
Issues: WHETHER THE TRIAL COURT ERRED IN CONVICTING THE APPELLANTS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302/504/506 IPC AND SECTION 25 OF ARMS ACT.
Ratio Decidendi: THE COURT HELD THAT THE CONVICTION OF THE APPELLANTS WAS JUSTIFIED AS THE PROSECUTION WAS ABLE TO PROVE ITS CASE BEYOND REASONABLE DOUBT. THE COURT RELIED ON THE TESTIMONY OF THE EYE-WITNESS, THE RECOVERY OF THE WEAPONS, AND THE MEDICAL EVIDENCE TO CONCLUDE THAT THE APPELLANTS HAD INTENTIONALLY KILLED THE DECEASED.
Final Decision: BOTH THE APPEALS WERE DISMISSED.
JUDGMENT :
MAHESH CHANDRA TRIPATHI, J.
1. Both Criminal Appeals are directed against judgment and order dated 03.06.2011 passed by Additional District and Sessions Judge, Court No. 6, Moradabad in Sessions Trial No. 1171/2007 (Pawan and Others vs. State) connected with Sessions Trial No. 1172/2007 (Pawan Yadav and Another) whereby, Pawan (appellant in connected Criminal Appeal No. 4433 of 2011) and Amit @ Amit Yadav (appellant in leading Criminal Appeal No. 3774 of 2011) have been convicted and sentenced under Section 302 read with Section 34 IPC for life imprisonment with fine of Rs. 20,000/- each and in default of payment of fine to further undergo imprisonment for a period of three years. They have also been convicted and sentenced under Section 504 IPC to undergo R.I. for six months with fine of Rs. 1000/- each and under Section 506 IPC to undergo R.I. for two years with fine of Rs. 4000/- each. They have further been convicted and sentenced under Section 25 of Arms Act to undergo three years R.I. with fine of Rs. 6000/- each. All the sentences have been ordered to run concurrently.
2. We have heard Sri Rajiv Lochan Shukla, Sri Manish Tandon and Sri Thakur Prasad Dubey, learned counsel for the appellants; Sri A.N. Mulla/Sri G.P. Singh, learned AGA for the State and have perused the record.
3. In an abridged form, prosecution allegations against appellants, as were contained in the written report dated 09.8.2007 (Ext.Ka-1), were that the informant Rajaram submitted a written report on 09.8.2007 alleging therein that on 08.8.2007 at about 11.00 p.m. when he was about to take dinner, his elder son Pawan, real nephew Amit and one more boy armed with country made pistols, entered his house and Pawan abused and threatened him stating that as the complainant had given the shop to Amod (younger son), today he will not let him live. They got the complainant and his wife, namely Hansho Devi, sat down at the Varandah. At that point of time, his son Amod returned to the home after shutting down the shop and all three persons caught him. Pawan fired the first shot while Amit fired the second shot at Amod with intention to kill him due to which he sustained injuries. He had taken his injured son to the hospital from where he was referred to ‘Sai Hospital’ and while they were leaving for ‘Sai Hospital’ his son (Amod) succumbed to injuries. The complainant went to the Police Station Kotwali, Moradabad on 09.8.2007 and submitted the written report, whereupon Case Crime No. 1333/2007 under Section 302/504/506 IPC and Case Crime No. 1341/2007 under Section 25 of Arms Act, Police Station Kotwali, Moradabad, were registered against the accused persons.
4. The body of the deceased was sent for post-mortem examination, which was conducted by R.P.S. Suman (PW-3) on 08.8.2007, wherein he noticed following injuries:
(2) Firearm wound of entry on back left side of chest 2 cm x 2 cm x abdominal cavity deep present 5 cm below the inferior angle of left scalpha and 15 cm lateral to mid line margins of the wound inverted and blackening present around the wound margins.
(3) Firearm wound of exit on front of abdomen 3 cm below the umbilicus just lateral to mid line on right side. It is 5 cm x 4 cm in size and margins of the wound everted. Intestines coming out of the wound.”
5. The investigation of the case was conducted and three separate charge sheets were submitted on 31.8.2007 (Ext.Ka-23 and 24) and 23.9.2007 (Ext.Ka-21). Ex. Ka-23 and 24 are the charge sheets submitted by Sunil Kumar Pachauri, SHO, Police Station Kotwali, Moradabad (PW-8) against Pawan Yadav and Amod Yadav under Section 25 of Arms Act, whereas, Ex. Ka-21 is the charge sheet submitted against Pawan, Amod and Subhash under Sections 302/504/506 IPC. After taki
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