DAHARI Vs. STATE OF U.P

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 27.4.2007 in Criminal Appeal No. 3990 of 2005 passed by the High Court of Judicature at Allahabad, partly allowing the appeal against the judgment and order dated 7.9.2005 passed by the Sessions Court, Azamgarh, in Sessions Trial No. 215 of 1991, convicting the appellants and the co-accused under Sections 302, 149 and 148 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and sentencing them to undergo rigorous imprisonment for life, and also one year RI, under Section 148 IPC respectively and further, to pay a fine of Rs.10,000/- on each count, and in default of such payment, to further undergo a term of four months RI.

(2.) The facts and circumstances giving rise to this appeal are as follows:

(3.) Shri S.R. Singh, learned senior counsel appearing for the appellants submitted that the High Court committed an error by convicting the appellants under Sections 302, 149 and 148 IPC, as after the acquittal of three persons among the accused, the total number of accused in the said case, are only four. Therefore, the provisions of Section 149 IPC would no longer be attracted. Moreover, the prosecution withheld its most material witness, that is, Ashok, the pillion rider of the motorcycle ridden by the deceased, Tej Bahadur and no explanation whatsoever was furnished, by the prosecution for his non- examination. Furthermore, it was not possible to inflict upon the deceased, the said gun shot injuries in the presence of a pillion rider on the motor bike. Shashi Bhushan (PW.5), a prime witness to the incident, turned hostile and did not support the case of the prosecution. Man Bahadur (PW.1) and Raj Bahadur (PW.2) are the real brothers of the deceased and therefore, their testimony should not be believed, as they are no doubt, interested witnesses. The evidence on record is insufficient to convict the said appellants. In view of the fact that the High Court acquitted three among the accused persons, dis- believing the testimony of the witnesses, there is no justification for the Court to convict the said appellants herein. Thus, the appeal deserves to be allowed.