Noting that the prosecution, as a matter of routine, does not emphasize the production of independent witnesses during the trial, the Allahabad High Court recently observed that the investigative agency’s failure to record the statements of these witnesses during an investigation must be taken seriously by the courts.
In dealing with a criminal appeal against a murder conviction for which no independent witness has been questioned or produced, the Chamber of Judge Attau Rahman Masoodi and Judge Manish Kumar was further of the opinion that, that the time is not far off when the courts may have to invoke the suo motu powers to summon such witnesses for whom there should be a witness protection law.
The case in brief
Essentially, the court was dealing with a criminal appeal from 4 appellants who had asked the court to challenge their conviction under section 302 read with section 34 of the Indian Penal Code, 1860 and the sentence of life imprisonment which had been inflicted on them by the District Judge and Extra Session, Unnao.
One of the defendants, Ashwani Kumar, was further convicted under Article 404 of the IPC and Article 3 r / w of Article 25 of the Weapons Act. The conviction was linked to a 1999 case in which a certain Ram Naresh Gaur and his son, Anil Kumar, were killed by the appellants.
The murder was committed as a result of an altercation which took place as the appellants were driving their tractors across the land / orchard belonging to the deceased while they were digging up potatoes in their field.
Observations of the Court
Initially the Court noted that there was an inconsistency between the eye evidence of PW-1 and PW-2 as PW-1, in its cross-examination made it clear that the first fire on the date of l The event was fired by Ram Naresh (deceased), while PW-2 said the first fire was fired by Ashwini Kumar (Accused).
The second contradiction noted by the Court lies between the oral statements of eyewitness PW-2 and PW-10. While PW-2 stated that Ram Naresh (deceased) after reaching the police station was taken to hospital by Jeep, the version of PW-10, in his cross-examination, was that Ram Naresh (deceased ) was taken to hospital by the same tractor, he was taken to the police station.
In addition to the contradictions mentioned above, the applicants also noted the ambiguity of the situation plan
Furthermore, the appellants, without expressing a formal opinion, raised in the High Court the plea that it was a case of culpable homicide within the meaning of article 300, exception IV IPC for which the maximum life sentence is disproportionate.
[Note: Exception IV to Section 300 of IPC states that Culpable homicide is not murder, if it is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner]
In this regard, noting that the defense of self-defense on an exception annexed to Article-300 IPC on the basis of the evidence available in the file can be raised at the appeal stage, observed as follows:
“From the eye evidence of PW-1, it is clear that the first fire was opened by Ram Naresh (deceased) which, without any stretch of the imagination, could be considered a danger to the life of callers, who in retaliation used firearms and caused him a fatal injury. The threat of death was also imminent for callers when Anil Kumar bent down to pick up the weapon which fell from Ram Naresh’s hands after being injured. The provocation for brawl and sudden quarrel was triggered by the deceased who protested by advancing towards the accused and the heat of passion multiplied upon his opening of the first fire and this position is well established on a careful reading of the testimony of PW-1 (Anand Mohan)“
Further, the Court stated that Iit would not be prudent to import the element of common intention in a situation of brawl or sudden quarrel fraught with provocation or aggression as in this case, so, the Court held that the evidence on the record clearly brought the case within the scope of exception-IV annexed to article 300 IPC and, consequently, the benefit of article 304 Part-I becomes applicable.
Importantly, the Court was also of the view that in this case the investigation, evidence or site plan offered no explanation for the tractor loaded with potatoes which had attempted to be brought in and driven. across the land of the deceased
“Independent cookies have not been produced and their position is not indicated in the sitemap unlike callers“, added the Court.
Finally, the Court noted that the appellants have already served their sentence for over 17 years and that one of the appellants (Parshuram Pasi) died during the appeal process while incarcerated.
Consequently, the conviction of the appellants under IPC Section 302 has been amended as a conviction under Section 304, Part I of the IPC and the substantial sentence of life imprisonment has been reduced to the length of the sentence already served by them.
Case title - Ashwani Kumar v. State of U.P. connected wiith Atul Kumar And 2 Ors. v. State of U.P.
Case citation: 2022 LiveLaw (AB) 8
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