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2022 Supreme(All) 1627
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SUNEET KUMAR, SYED WAIZ MIAN, JJ.
Jamshed – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.6649 of 2006
Decided on : 23-12-2022
Advocate Appeared:
For the Appellant : Ajatshatru Pandey, J.J.Munir, Mohd Faiz, Mohd. Farooq, Narendra Singh, Prem Chand Saroj
For the Respondent: D.K. Srivastava
Headnote:
Criminal Procedure Code, 1973 - Section 374(2), 161 – Indian Penal Code, 1860 - Section 302, 323, 504, 506 - Arms Act, 1959 – Sections 3, 25, 27 - Murder Offence - No intention to kill – Appeal against conviction - Accused got infuriated and fired with gun on chest, who fell down and died on spot – Held, Incident had occurred all of sudden and it is reflected from perusal of material on record that act of appellant/accused falls within ambit of Section 300 (exception 1) as appellant had no intention to kill deceased and on sudden provocation and quarrel incident had occurred - Further, he had only fired once at deceased - In case of culpable homicide intention or knowledge is not so positive or definite - An injury caused may or may not cause death - Even if exceptions 1 to 4 to Section 300 I.P.C. are not culpable, offence can still be culpable homicide - In Court opinion, offence of accused falls within exception 1 of Section 300 I.P.C., therefore, learned trial Court has erred by convicting accused under Section 302 I.P.C - Upon considering rival contentions of parties, facts and circumstances of case, manner of commission of crime by appellant, conviction of appellant, under Section 302 I.P.C., who is in jail, is converted to Section 304 I.P.C - Appeal allowed in part.
JUDGMENT :
Syed Waiz Mian, J.
1. This Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred by appellant/accused, Jamshed, against the judgment and order dated 26.10.2006, passed by Additional Session Judge, (Fast Track Court), Chandauli, in Session Trial No. 29 of 2022 (State vs. Jamshed) whereby, he has been convicted and sentenced, under Section 302 I.P.C. to undergo Imprisonment for life with a fine of Rs. 10,000/-, and under Sections 323, 504, 506 I.P.C. 6 months, one year and 1 and half year, simple imprisonment, respectively, and in the event of default in payment of fine, he has to further undergo one year simple imprisonment. All the sentences have been directed to run concurrently.
2. Heard Shri Sagir Ahmed, learned Senior Advocate, assisted by Mohd. Farooq, learned counsel for the appellant and Shri Ratnendu Kumar Singh, learned A.G.A. for the State respondent and perused the record.
3. Brief facts of the prosecution story unfolds as under:
4. One Vijendra Yadav-informant, on 05.07.2001 at about 20.30 hours, presented a written First Information Report, whereupon, First Information Report No. 96 of 2001, Case Crime No. 113 of 2001, under Sections-302, 323, 504 and 506 I.P.C., at Police Station-Balua, District-Chandauli, came to be registered against the appellant/accused.
5. In the First Information Report, it is alleged that on 05.07.2001, Satish Yadav, after taking kerosene oil from the Fair Price Shop, was on the way to his house; as soon as, he had reached at the tea and beetle shop at 6.30. p.m. of Nahku Prajapati, near square, the accused riding upon motor bike, came there and started to hurl abuses at him. When Satish Yadav cautioned him, the appellant got down from the vehicle and started to beat him with fists and kicks; witnesses, Lal Ji, Sanjay and others, who were present there, intervened and separated Satish Yadav from accused and also reprimanded the accused against his action; but he (accused) threatened them to leave the place, otherwise, he would shoot them; witnesses challenged him by saying that it was not easy for him to kill them, on which accused got infuriated and fired with gun on the chest of Rajvansh, who fell down and died on the spot. The accused brandishing his gun threatened the witnesses and he took to his heels leaving the people on the spot, frightened.
6. Substance of the First Information Report was got entered into G.D. on 05.07.2001 and the investigation was handed over to the incharge of the Police Station who took it and commenced the same.
7. At the instance of the informant, site plan of the place of the occurrence was prepared. Inquest over the body of the deceased was conducted and the dead body of the deceased along with inquest report and other necessary papers was forwarded to the district mortuary to ascertain the real cause of the death of the deceased.
8. During investigation, the investigating officer, recorded the statement of P.W.-1, and other witnesses. On 08.07.2001, accused got arrested who confessed to the incharge of the police station Samant Bhadra Shukla that in connection with the present incident he had killed Rajvansh by licensee fire arm DBBl gun .12 bore and had concealed the weapon in the bushes, near old Idgah at village Nathupur. He also disclosed to the arresting officer that he can get the same recovered from the said place, whereupon, the investigating officer Samant Bhadra Shukla, incharge of the police station, along with witnesses Raja Ram Yadav and Rajendra Yadav, in the hope of such recovery, took the accused at the given place, where he, at 14:00 hours, got recovered DBBl gun from the bushes and admitted to have killed the deceased on 05.07.2001. He also pointed out that his brother Tanjeen Ahamad, was the license holder of the weapon who was serving in Military and posted in Jammu and Kashmir. In the cover of butt, of the recovered DBBl gun, three live cartridges were also got recovered. Both articles, ie. DBBL gun and recovered live car
