Amar Singh vs State Of U.P.
2021 Latest Caselaw 4716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.03.2021
 
Delivered on 26.03.2021
 
In Chamber
 

 
Case :- CRIMINAL APPEAL No. - 2018 of 2019
 

 
Appellant :- Amar Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amit Kumar Srivastava,Anil Pathak,Raj Kumar Singh
 
Counsel for Respondent :- G.A.,Dinesh Kumar Yadav,Mahesh Prasad Yadav
 

 
Hon'ble Subhash Chand,J.

The instant appeal on behalf of accused-appellants under Section 374(2) Cr.P.C. is preferred against the judgment and orders dated 01.03.2019 passed by 3rd Additional Sessions Judge, Chitrakoot, in Sessions Trial No. 2 of 2008, State vs. Amar Singh and another & Sessions Trial No. 3 of 2008 (State Vs. Amar Singh), whereby the appellants have been convicted and sentenced as follows:

 
Sessions Trial No. 2 of 2008
 
Appellant -Amar Singh
 
304 IPC		:	Ten years rigorous imprisonment with fine of Rs.20,000/- 			and in default of payment of fine six months additional				simple imprisonment.
 
Sessions Trial No. 3 of 2008
 
Appellant -Amar Singh
 
25/27	Arms Act	:	Two years rigorous imprisonment with fine of Rs.5,000/- 				and in default of payment of fine two months' additional				simple imprisonment.
 
1.	In the present appeal facts of the prosecution case may be summarized as under :-
 

Brief facts giving rise to the present Criminal Appeal are that the informant Kallu Ram son of Chunkoo, resident of village and post Chillimal, P.S. Rajapur, District Chitrakoot moved written information on 15.07.2007 with these allegations that in the intervening night at 1.30 O'clock, he heard the noise from the house of Gaya Prasad son of Jhurai that some miscreant has intruded in his house. He and the people of the village attracted to the house of Gaya Prasad and it was told that the miscreant had entered in the Attari having crossed the courtyard of the house. Despite alarming, the miscreant did not come out, Amar Singh (appellant herein) the son of Gaya Prasad opened fire with the licensee gun of his father on the miscreant presuming him to be miscreant and that person died on the spot. Thereafter he was brought down from the Attari and it was found that the person was Indersen son of Ram Milan Yadav of their family. Therefore, the murder of cousin brother was committed under misconception that he was miscreant. His dead body is lying on the spot. This written information was given with the police station Rajapur, on which case crime no.80 of 2007, under Section 304 IPC and case crime no.81 of 2007, under Section 25/27 of Arms Act, were registered against the appellant-Amar Singh; while case crime no.82 of 2007, under Section 30 of the Arms Act, was registered against Gaya Prasad. The Investigating Officer after having concluded the investigation filed charge-sheet against acused Amar Singh in case crime no.80 of 2007, under Section 304 IPC, case crime no. 81 of 2007, under Section 25/27 of Arms Act and in case crime no.82 of 2007, under Section 30 of Arms Act filed charge-sheet against accused Gaya Prasad Yadav. The magistrate concerned took cognizance on the charge-sheet of case crime nos.80 of 2007 & 81 of 2007 against Amar Singh and the case being triable by the court of Sessions committed the file to the Court of Sessions for trial.

2. The trial court registered the Sessions Trial No.2 of 2008 (State Vs. Amar Singh) arising out of case crime no. 80 of 2007, under Section 304 IPC, P.S. Rajapur, District Chitrakoot and S.T. No. 3 of 2008 (State Vs. State), arising out of case crime no. 81 of 2007, under Section 25/27 of Arms Act, P.S. Rajapur, District Chitrakoot. The trial court framed the charge against the accused-Amar Singh under Section 304 IPC and 25/27 of Arms Act in the respective Sessions Trial Nos. 2 of 2008 and 3 of 2008. The charge was read over and explained to the accused Amar Singh, who denied the charge and claimed to be tried.

3. On behalf of prosecution to prove the charge against the accused Amar Singh in documentary evidence filed written information Ext. Ka-1, application dated 25.07.2007 Ext. K-2, inquest report Ext. Ka-6, recovery memo of the blood stained and plain clay Ext. Ka-7, recovery memo of one bullet and two spent cartridges 12 bore Ext. Ka-8, Postmortem report of the deceased Ext. Ka-9, police form no.33 Ext. Ka-10, letter to R.I. Ext. Ka-11, letter to CMO Ext. Ka-12, police form no.13 Ext. Ka-13, photocopy of blood stained and plain clay Ext. Ka-14, photocopy of taking in possession of one bullet and two spent cartridges 12 bore Ext. Ka-15, site plan of the occurrence Ext. Ka-16, recovery memo in regard to the DBBL Gun no.8722 along with four live cartridges 12 bore and arrest memo of the accused Ext. Ka-19, charge-sheet against accused-appellant in case crime no.80 of 2007, under Section 304 IPC Ext. Ka-17, charge-sheet against accused Amar Singh in case crime no.81 of 2007, under Section 25/27 Arms Act Ext. Ka-20, check FIR Ext. Ka-21.

4. On behalf of prosecution in oral evidence examined P.W.1-Kallu Ram, P.W.2-Surya Pal, P.W.3-Bhola Nath, P.W.4-Dr. A.K. Mohan, and P.W.5-Sub Inspector Jagjeevan Ram.

5. The statement of accused under Section 313 of the Code of Criminal Procedure was recorded, in which he denied the incriminating circumstances against him and stated that he has been falsely implicated in this case and he is innocent.

6. On behalf of accused in defence evidence adduced D.W.1-Nankoo.

7. The trial court after hearing the counsel for rival parties, passed the judgment and order dated 1.3.2019 convicting the accused-appellant under Sections 304 IPC and 25/27 of Arms Act and sentenced him as above.

8. Aggrieved from the impugned judgment the instant criminal appeal has been preferred on behalf of the appellant on the ground that impugned judgment of conviction and sentence passed by the court below is perverse and illegal. The trial court has not appreciated the evidence available on record in proper perspective. The contents of the FIR itself transpires that the appellant opened fire under the impression that the miscreant had entered in his house in late hours of night. There are major contradictions and improvement in the statement of witnesses. No independent witness of the occurrence was examined by the prosecution. Defence version has not been considered by the trial court while convicting the appellant. The impugned judgment of conviction is based on surmises and conjectures.

9. I have heard Sri Saghir Ahmad, Senior Advocate, assisted by Sri Anil Pathak, learned counsel for the appellant, learned AGA for the State-respondent and perused the lower court record.

10. Learned counsel for the appellant has submitted that from the evidence on record it is established that there is no mens rea to commit the alleged offence. The appellant had exercised the right of private defence of person and property and the trial court did not consider the reasonable doubt for acquittal of the appellant in view of Section 105 of the Indian Evidence Act, 1872. The informant for the first time took the new plea in the application dated 25.07.2007 Ext. Ka-2 in regard to the illicit relation of deceased with the wife of accused Amar Singh and source of the same is alleged by P.W.1-Kallu Ram to be known from the ladies of his family and the fact of source of light at the place of occurrence also for the first time was raised in the application dated 25.07.2007. This application was not handed over by the informant P.W.1- Kallu Ram to the Investigating Officer during investigation and the same was not made part of the case diary. Even in the statement under Section 161 of Cr.P.C. Kallu Ram did not disclose this new fact to the Investigating Officer. This improvement was raised for the first time on behalf of prosecution at the stage of trial while the prosecution case is not based on the same. As such, the same cannot be read in evidence. The appellant did not exceed the right of private defence consequently no offence under Section 304 IPC is made out against the appellant. It is further submitted by the learned counsel for appellant; if the plea of self defence under general exceptions of Indian Penal Code is not proved on behalf of appellant, the trial court was bound to consider the same in view of Section 105 of the Indian Evidence Act, 1872. Whether the appellant was entitled to benefit of doubt in view of evidence adduced on behalf of prosecution itself. In support of this contention learned counsel for the appellant relied upon case law Rishikesh Singh Vs. State of U.P., AIR 1970 Alld. 51 (FB).

11. Learned AGA opposed the contentions made by learned counsel for the appellant and contended that the prosecution has proved its case beyond reasonable doubt. There is no infirmity in the judgment of conviction and sentence passed by the court below. The plea of self defence under general exceptions of Indian Penal Code was neither raised on behalf of the appellant in the statement under Section 313 of Cr.P.C. nor the same was elucidated on behalf of accused to the prosecution witnesses during cross-examination. Not only this in defence evidence on behalf of accused D.W.1-Nankoo was examined. This witness also did not adduce any evidence in regard to this plea of self defence under general exceptions of Indian Penal Code rather the D.W.1 was examined to prove the plea of alibi in regard to the accused Gaya Prasad, who is alleged to be at the house of D.W.1-Nankoo, the brother-in-law of accused Gaya Prasad and the licensee gun was also with him, therefore, the appellant is not entitled to get benefit of doubt in view of Section 105 of Indian Evidence Act, 1872.

12. For disposal of this criminal appeal the only question before the Court is; whether the appellant is entitled to take the benefit of general exceptions of self defence of person and property in view of Section 105 of Indian Evidence Act, 1982 ?

13. Here the provisions of Sections relating the self defence under Indian Penal Code and also under the provisions of Section 105 of Indian Evidence Act are relevant, which are reproduced as under:

96. Things done in private defence.--Nothing is an offence which is done in the exercise of the right of private defence.

97. Right of private defence of the body and of property.--Every person has a right, subject to the restrictions contained in section 99, to defend--

(First) -- His own body, and the body of any other person, against any offence affecting the human body;

(Secondly) --The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

100. When the right of private defence of the body extends to causing death.--The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--

(First) -- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(Secondly) --Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault;

(Thirdly) -- An assault with the intention of committing rape;

(Fourthly) --An assault with the intention of gratifying unnatural lust;

(Fifthly) -- An assault with the intention of kidnapping or abduct­ing;

(Sixthly) -- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

102. Commencement and continuance of the right of private defence of the body.--The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the of­fence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

103. When the right of private defence of property extends to causing death.--The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-

(First) -- Robbery;

(Secondly) --House-breaking by night;

(Thirdly) -- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwell­ing, or as a place for the custody of property;

(Fourthly) --Theft, mischief, or house-trespass, under such circum­stances as may reasonably cause apprehension that death or griev­ous hurt will be the consequence, if such right of private de­fence is not exercised.

105. Commencement and continuance of the right of private defence of property.--The right of private defence of property commences when a reasonable apprehension of danger to the property com­mences. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal resstraint continues. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 105 of Indian Evidence Act reads as under:

105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

14. On behalf of prosecution in ocular evidence, examined P.W.1-Kallu Ram, P.W.2-Surya Pal, P.W.3-Bhola Nath, as a witness of fact.

P.W.1-Kallu Ram in his examination-in-chief stated that Jhurai is cousin brother and Amar Singh (Accused) is the real grandson of Jhurai. The deceased Indersen is the real grandson of him. On the date of occurrence after hearing the noise when he reached to the house of accused-Amar Singh, he saw Amar Singh was standing in the courtyard armed with licensee gun of his father. His younger brother was also there. Amar Singh was also bearing torch. Amar Singh told him that a miscreant had hidden himself in the Attari. Amar Singh opened two shots after having seen the miscreant in the light of torch and when deceased was brought down on the ground floor, who was grandson of Indersen. He had lodged the FIR on 15.07.2007 having relied what the Amar Singh told him. Written information is in his hand writing and signature, he verified he same Ext. Ka-1. He had also moved the application to the Superintendent of Police through registered post Ext. Ka-2 on 25.07.2007.

In cross-examination P.W.1-Kallu Ram stated that on the date of occurrence it was dark night of Amavashya. He has no enmity with accused person. Between the house of accused and the house of him, there are 6 to 7 houses. He had come to know from the ladies of his house that deceased Indersen had illicit relations with the wife of accused Amar Singh and he cannot tell the name of ladies, who told him in this regard. He did not get the acknowledgment of the application sent to Superintendent of Police Ext. Ka-2 dated 25.07.2007. He did not tell in regard to illicit relations of deceased with the wife of Amar Singh to the Investigating Officer. In regard to the fact that Amar Singh was bearing torch he had mentioned in the second application but nothing was mentioned in the first application. He did not tell to Darogaji that Amar Singh was bearing torch in his hand at the time of occurrence. He was in the courtyard of house of Amar Singh when he heard the sound opening fire. It is wrong to say that on the date of occurrence Amar Singh and his father Gaya Prasad both were not at their house. It is further wrong to say that in absence of accused Amar Singh and his father Gaya Prasad, deceased had intruded in the house in the night and the ladies of he house of Amar Singh made noise of the same and some neighbour had opened fire causing death of Indersen.

15. P.W.2-Surya Pal also corroborates the prosecution story and deposed that he had seen Amar Singh opening fire from his own eyes. He came to know in regard to illicit relations of deceased with the wife of Amar Singh, with the wife of Ram Milan. He has no personal knowledge of the same. P.W.1-Kallu Ram had lodged the FIR about the occurrence told to him by Amar Singh and his father. He did not tell to the Investigating Officer in regard to the illicit relation of deceased with the wife of accused Amar Singh and also in regard to torch that was borne by the accused at the time of occurrence.

16. P.W.3-Bhola Nath proved the recovery in regard to blood stained and plain clay Ext. Ka-7 and also the recovery memo of two cartridges and one bullet Ext. Ka-8 and also two spent cartridge material Ext.1 and 2 and one bullet Ext.3. P.W.3 in his cross-examination by the court deposed that he had no personal knowledge in regard to the illicit relations of the deceased with the wife of accused Amar Singh. He is deposing in this regard only on the basis of rumour spread in the village. The occurrence is of 1.30 O'clock in the night.

17. From the statement of P.W.1-Kallu Ram and P.W.2-Surya Pal it is established that both the witnesses for the first time told in regard to the illicit relations of deceased with the wife of accused Amar Singh and source of knowledge of the same is hearsay. Both the witnesses admit that during investigation they did not depose in this regard to the Investigating Officer and for the first time they are giving statement in this regard before the trial court. Likewise both the witnesses also admit that they did not depose to the Investigating Officer that Amar Singh was bearing torch in his hand at the time of opening fire at the deceased.

18. As such improvement made by the prosecution witnesses during trial court in regard to the illicit relations of deceased with the wife of accused Amar Singh and also that Amar Singh was bearing torch in his hand at the time of opening fire and the same was never told by these witnesses in their statement recorded under Section 161 Cr.P.C. to the Investigating Officer; to that extent the testimony of this witnesses cannot be relied upon.

The Hon'ble Apex Court in Sampath Kumar Vs. Inspector of Police, 2012(77) ACC 251 (SC) held that in criminal trial testimony of a witness in the court that when he woke up, he saw the appellant standing near the head of the deceased - no such statement was given by the witness to the police under Section 161 of Cr.P.C. is wholly unsafe to base the conviction on such testimony in absence of independent witness.

19. From the statement of witness of fact, it is established that the accused Amar Singh opened fire with the licensee gun of his father to the deceased under misconception that the deceased was the miscreant, who had intruded in his house at 1.30 O'clock in dark hours of night and hidden himself in the Attari of the house.

20. This ocular evidence is also corroborated with the medical evidence. P.W.4 Dr. A.K. Mohan deposed that on 15.07.2007 he conducted the postmortem of the deceased Indersen and during examination, there were following ante mortem injuries.

1. Gunshot entry wound present inferior bordering of right Axilla at lateral aspect size 3 cm in diameter. Gunshot tattooing mark present inferior size 15 cm x 6 cm. Margin of wound inverted. Direction downward & towards left side of chest at 6-7 interverted space was fracture of 3rd and 4th ribs of lt. Side. Margin burned and bloodish.

2. Gunshot exit wound present on left side of chest at lateral aspect at 6-7 interverted space. Margin excluded. Soft tissue extruded. Size of wound is 2 ½ cm x 2 cm.

This witness opined that the cause of death was shock and haemorrhage as a result of gunshot injuries. He proved the postmortem report of the deceased as Ext. Ka-9.

21. P.W.5 Sub Inspector Jagjeevan Ram deposed that he took over the investigation of the case and during investigation he recorded the statement of witnesses of fact and also the witness of panchayatnama. He prepared the site plan of the occurrence. He collected the blood stained and plain clay of the place of occurrence. He also took in his possession the licensee DBBL Gun used in the offence and the recovery memo of the same was also prepared by him. He also prepared the site plan, recovery memo of bullet and spent cartridges recovered from the place of occurrence and the witness told him that accused Amar Singh opened fire resulting death of deceased Indersen under misconception that he was miscreant.

22. The Forensic Science Laboratory (in short FSL) report is also on record as paper no.123Ka/6. This FSL report is admissible in evidence under Section 293 of Cr.P.C. As per FSL report, the disputed cartridge was found to be opened with the right barrel of the DBBL Gun No. 8722.

23. Therefore, from the ocular evidence as well as medical and the FSL report this fact is proved that gunshot injury was caused by the licensed DBBL Gun of Gaya Prasad by his son Amar Singh.

24. The trial court held guilty to the appellant for culpable homicide not amounting to murder under Section 304 of IPC with the finding that the appellant/convict exceeded the right of private defence.

25. The Hon'ble Apex Court in Darshan Singh Vs. State of Punjab and another, 2010 (2) SCC 333 held in para-15 that the following principles emerge on scrutiny in regard to private defence of person and property :

"(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

26. The Hon'ble Apex Court held in Satya Narayan Yadav Vs. Gajanand, AIR 2008 SC 2384, right of private defence-accused need not raise specific plea, court can consider its availability even in absence of the plea raised by the accused.

27. Here it would be relevant to produce the following case law on Section 105 of the Evidence Act while dealing with the contentions made by learned counsel for rival parties.

28. The Hon'ble Apex Court in Laxman Singh Vs. Poonam Singh and others, 2004(10) SCC 94 in para-6 held as under:

"The burden of proof is on the accused, who sets off the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused."

29. The Hon'ble Full Bench of Nine Judges of Allahabad High Court in Rishikesh Singh Vs. State, AIR 1970 Alld 51, the dictum of the majority of learned Judges of this Court in Parbhoo v. Emperor, AIR 1941 All 402 (FB) is still good law. But, it may be elucidated that in a case in which any general Exception in the Indian Penal Code is pleaded by an accused and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively that the accused has fully established his plea of the claimed Exception, he will still be entitled to an acquittal, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general Exception), a reasonable consequential doubt is created in the mind of the Court as to whether the accused is really guilty of the offence with which he is charged.

30. The Hon'ble Full Bench of Allahabad High Court held in Parbhoo Vs. Emperor, AIR 1941 All 402 (FB), Section 105 of Evidence Act does not prevent the Court from giving benefit of doubt altogether to an accused under general exceptions. It makes possible both kinds of acquittal (i) by proving his plea fully and another by raising genuine doubt in the case. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy,, or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to "separate the chaff from the grain.

31. In the present case certainly on behalf of appellant/convict this plea of self defence in general exceptions of IPC is neither raised in the statement under Section 313 of Cr.P.C. of the accused, nor the same has been elucidated to the prosecution witnesses during cross-examination on behalf of accused by the defence counsel. Even no evidence has been adduced on behalf of accused to prove the plea of self defence of general exceptions of IPC.

32. In view of case law Laxman Singh (Supra) and also the full Bench judgment of this Court in Rishi Kesh Singh (Supra), if from the evidence on record as a whole a reasonable consequential doubt is created in the mind of the court whether the accused is really guilty of the offence; the plea of self defence in general exceptions of IPC can be considered. Certainly this reasonable doubt must be genuine and a doubt of prudent man.

From the prosecution evidence on record, it is found that the deceased Indersen had intruded in the house of accused at 1.30 O'clock in the intervening night of 14/15.07.2007 (Amavashya), the entry at the wee hours is certainly criminal house-trespass.

33. Section 103 of IPC, 1860 provides when the right of private defence of property extends to causing death if the theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

34. In the present case from the evidence on record, it is proved that the deceased Indersen had intruded in the house of accused at 1.30 O'clock in wee hours of Amavashya night which caused reasonable apprehension in the mind of inmates of the house that some miscreant had intruded in their house. Consequently the inmates of the house of accused raised alarm. P.W.1-Kallu Ram (informant of this case) and P.W.2-Surya Pal also attracted immediately at the place of occurrence. The so called miscreant had hidden himself in the Attari of the house and despite raising alarm even in presence of prosecution witnesses P.W.1 and P.W.2, he did not appear to disclose his identity. The appellant Amar Singh who was armed with licensee gun of his father, also raised alarm, when so called miscreant did not come out from the Attari, he under the misconception opened fire to avoid any mishappening.

This reasonable apprehension in the mind of the appellant seems to be the reasonable consequential apprehension of a prudent man, who in the similar circumstances would take such a decision more so; if he had any licensee gun in his house to protect his person and property as well.

35. Certainly the deceased Indersen was not armed with any weapon, he had not made any threatening and had not made any assault but by hiding himself in the Attari would raise apprehension in the mind of a prudent man that his presence inside the house may cause any mishappening to any inmate of the house or property as well.

36. In view of the evidence on record a genuine doubt is created in the mind of the Court to hold whether the appellant is guilty of the offence of culpable homicide not amounting to murder.

37. On behalf of prosecution during trial for the first time this plea was raised by the prosecution witness that accused was bearing torch in his hand and in the light of torch he had verified the identity of the deceased to be Indersen and he opened fire with the licensee gun on account of illicit relations of deceased with the wife of accused Amar Singh. This plea was never raised by P.W.1-Kallu Ram, who is the informant of the case and P.W.2-Surya Pal, during investigation. But for the first time the informant stated during cross-examination in trial that he had given an application to that effect to the Superintendent of Police concerned; but the same was never made part of the case diary. Even there is no entry in this regard made by the Investigating Officer in the case diary. Not only this even none of the witnesses, who were interrogated by the Investigating Officer under Section 161 of Cr.P.C. did not tell to the Investigating Officer that accused Amar Singh was bearing torch in his hand and he after having verified the identity of the deceased in the light of torch opened fire with intention to cause death of Indersen. This story was developed later on and same cannot be relied upon more so when the prosecution case is not based upon the same.

38. In view of re-appreciation of evidence on record, this Court finds that the finding recorded by the trial court holding appellant Amar Singh guilty for the offence under Section 304-I of IPC and Section 25/27 of Arms Act deserves to be set aside and this appeal deserves to be allowed.

39. Accordingly, the present criminal appeal is allowed. The judgment and order dated 01.03.2019 passed by 3rd Additional Sessions Judge, Chitrakoot, in Sessions Trial No. 2 of 2008, State vs. Amar Singh and another & Sessions Trial No. 3 of 2008 (State Vs. Amar Singh), under Sections 304 IPC and 25/27 Arms Act, respectively, P.S. Rajapur, District Chitrakoot is set aside. The appellant is acquitted from the charges leveled against him. The appellant is in jail. He be released forthwith, in case, he is not wanted in any other case provided the appellant files a personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance of section 437-A of Code of Criminal Procedure.

40. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further send back the lower court record.

(Subhash Chand,J.)

Order Date :- 26.03.2021

Prajapati/-