The Allahabad High Court has dismissed the state appeal observing that in acquittal appeals, the appellate court is not required to rewrite the judgment or to give fresh reasoning when the reasons assigned by the Court below are found to be just and proper.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Ajai Tyagi passed this order while hearing a Criminal Appeal and Government Appeal filed by Lakhan @ Babblu.
The first appeal has been preferred by appellant Lakhan @ Babblu against the order dated 19.08.2011, passed by the Additional Sessions Judge (Special), Baghpat in Session Trail, arising out of Case under Section 302 Indian Penal Code (IPC), Police Station Khekhara, District Baghpat whereby the appellant is convicted and sentenced for offence under Section 302 IPC for life imprisonment with a fine of Rs 10,000 and in default of payment of fine, further imprisonment for two months.
The appeal (Government Appeal) has been preferred by the State of UP against the same order dated 19.08.2011, passed by the Additional Sessions Judge (Special), Baghpat in Session Trial, arising out of case at Police Station Khekhara, District Baghpat whereby the accused persons Jagat Singh, Ramesh and Suresh @ Lala were acquitted for the offence under Sections 307, 504 IPC and Section 7 of Criminal Law Amendment Act and in Session Trial, arising out of Case at Police Station Khekhara, District Baghpat whereby the accused Suresh @ Lala was acquitted for the offence under Section 25 of Arms Act, 1959.
The facts of the case giving rise to this appeal are that a First Information Report was registered at Police Station Khekhara, District Baghpat, in which the complainant alleged that on 14.05.2009 at about 10 AM, the informant informed that Krishna Pal, his wife Rajesh, younger brother Indrapal and his nephew Praveen were uprooting the bricks of their old house. At that time, accused Lakhan @ Babblu, Jagat Singh, Suresh and Ramesh came there, with country-made pistol in their hands and started abusing the person who were present. Jagat Singh, Suresh and Ramesh caught hold Rajneesh and Lakhan @ Babblu fired at Rajneesh from close range, rather putting the barrel of tamancha on his left upper arm. Rajneesh fell to the ground and died.
As per the informant, they shouted and due to that all the four accused persons fired at them also and they saved their lives by hiding behind the wall. The First Information Report was registered immediately within 40 minutes of the occurrence. The investigation was taken up by the Investigating Officer, during the course of investigation, the IO recorded the statement of witnesses, collected the sample of plain and blood stained earth. An inquiry report of the deceased was prepared. After that, a post-mortem was conducted and its report was prepared by the doctor. Investigating Officer arrested the accused persons. At the time of arrest, a country-made pistol of 0.315 bore was recovered from accused Suresh and its recovery memo was prepared.
After completion of investigation, a charge sheet was filed against Lakhan @ Babblu, Jagat, Suresh and Ramesh under Sections 302, 307, 504 IPC another charge sheet was also submitted against the accused-Suresh under Section 25 of Arms Act,1959.
The Trial Judge framed the charges against the aforesaid accused persons under Sections 302, 307, 504 IPC and Section 7 of Criminal Law Amendment Act, another charge was also framed under Section 25 of Arms Act against the accused Suresh. Accused persons denied the charges and claimed to be tried.
After completion of prosecution evidence, the statements of accused persons were recorded under Section 313 of Criminal Procedure Code,1973(CrPC), in which they denied their involvement in the crime and said that false evidence was led against them. The accused persons have not examined any witness in defence.
The counsel for the accused-appellant Lakhan @ Babblu made his submissions challenging the conviction. It is submitted by the counsel for the appellant that in the case, the Trial Court has acquitted three accused persons on the same set of evidence while only Lakhan @ Babblu was convicted, which is bad in the eyes of law and requires interference by the court.
It is next contended that all the witnesses are of the same family, there was no independent public witness and no undue reliance could not be placed on the evidence of interested witnesses. The deceased had a long criminal history and was member of a gang, on whose arrest reward of Rs 50,000 was declared. The deceased was killed by someone else and on the basis of previous enmity, accused-appellant Lakhan @ Babblu has been implicated falsely.
Counsel for the accused-appellant has further submitted that occurrence of the case had taken place at 10:00 AM and First Information Report was lodged at 10:40 AM while the distance of the police station from the place of occurrence is about four kilometres.
It is further submitted by the counsel for appellant that plain and blood stained earth was collected by the IO but it is not mentioned in the recovery memo from which place or where the earth was collected.
It is also submitted that acquitted accused persons were rightly acquitted by the trial court because their presence was not proved.
The Court noted that,
Counsel for the accused-appellant and acquitted accused drew our attention to the recovery memo and country made pistol, said to be recovered from the possession of the accused Suresh, who had admitted to the IO that he had fired two round at deceased while as per the First Information Report only one gun fire was mentioned by placing the barrel on the arm of the deceased and post-mortem report shows that the wound was on left hand of the deceased.
After some length of arguments, counsel for the convicted accused-appellant has submitted that if prosecution case is believed then also it is version of FIR that accusedLakhan @ Babblu fired at the deceased by putting the barrel of Tamancha on his body, which was left hand, as is evident from ante mortem injuries. Accidentally the bullet pierced into the heart of the deceased by making an exit wound after entering the hand. It shows that accused Lakhan @ Babblu had no intention to commit the murder of the deceased because if it had been the intention then he could have fired on chest directly. Hence, this case cannot go beyond the scope of Section 304 of IPC.
Raj Kumar Dhama, counsel for the informant, and AGA for the State objected to the submissions of the counsel for the accused-appellant and submitted that fire-arm was recovered from the possession of accused Lakhan @ Babblu.
It is further submitted that the weapon was also recovered from the possession of the acquitted accused Suresh and role of firing is assigned to all the accused persons. Hence, two gunshots cannot be ruled out. It is further submitted that acquitted accused persons also fired towards the family members of the deceased, which is the version of FIR and all the witnesses of fact have deposed so in their testimony.
The Court found various improvements in the testimony of prosecution evidence before the trial court. It is also very hard to believe that despite there being firing by accused persons on willingness but no one has sustained any injury and on analysing the evidence from the angle that three acquitted accused persons caught hold of the deceased simultaneously then also there was every possibility of sustaining injury by them also, which has not come in ocular version of prosecution.
The Court said,
Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where an accused has been held to be non guilty would require to be discussed.
Considering the evidence of the witnesses and also the medical evidence including the post mortem report, there is no doubt left in our mind about the guilt of the appellant.
However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of IPC of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code.
The Court further said that the academic distinction between ”murder’ and ”culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts lose sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of IPC.
The Court observed that,
Evidence on record goes to show that it is the case of prosecution in the First Information Report that accused-Lakhan @ Babblu made a single fire only, that too by putting barrel of the weapon on the left arm of the deceased. Ante mortem injuries in the post-mortem report go to show that a bullet made entry wound on the left arm of the deceased and made exit wound also and then it entered the chest of the deceased. No second fire was made, hence, it appears that appellant-Lakhan @ Babblu had no intention to commit the murder of deceased but he intentionally caused such bodily injury as was likely to cause death.
From the upshot of the aforesaid discussion, it appears that the death caused by the accused was not intended but he intentionally caused such bodily injury, which was likely to cause death, therefore, the instant case false under the Exceptions 4 to Section 300 IPC.
In the light of the foregoing discussions, the appeal is liable to be allowed in part. Appellant-Lakhan @ Babblu is held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC.
Hence, the conviction and sentence awarded to the appellant-Lakhan @ Babblu for the offence under Section 302 IPC is converted into the offence under Section 304 (Part-I) IPC and appellant is sentenced under Section 304 (Part-I) IPC for 10 years rigorous imprisonment and fine of Rs 10,000/-. The appellant shall undergo further simple imprisonment for one year in case of default of payment fine.
In view of the High Court, the view, taken by the trial court with regard to the acquitted accused persons was a possible view, hence, there is no need to interfere with their acquittal and the appeal preferred by the State is liable to be dismissed.
Accordingly, the appeal preferred by appellant-Lakhan @ Babblu is partly allowed by the High Court as modified above. The appeal preferred by State stands dismissed.