- (1.) This appeal has been preferred against the judgment and order dated 23.8.2007 passed by the High Court of Allahabad in Criminal Appeal No. 1096 of 1982, qua the appellants by which the judgment and order of the Trial Court dated 16.4.1982 in Sessions Trial No. 277 of 1980, of their conviction under Section 302/149; 307 read with Section 149 and Section 452 of Indian Penal Code, 1860 (hereinafter called 'IPC') has been upheld and sentence awarded by the Trial Court for life imprisonment for the offence under Section 302/149; seven years for the offence under Section 307/149; andthree years' rigorous imprisonment under Section 452 IPC has been maintained.
(2.) Facts and circumstances giving rise to this appeal are as under: A. An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about 12 O'clock, Jalsur (PW.2) complainant and his Uncle Onkar Singh (deceased) were sleeping on the roof of their house in their village Kidhara. The appellants came to the house of complainant alongwith other accused persons. One Jagdish who was having a shop in the outer room of the complainant's house, woke up after hearing the sound of the movement of appellants and accused persons and raised alarm and took to his heels. Jalsur (PW.2) and his uncle Onkar Singh (deceased) also woke up. Onkar Singh (deceased) climbed down from the roof towards Chabutara while Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a "chappar" in front of his own house. It was in the light of the fire made on account of burning of "Chappar", that Jalsur (PW.2) saw the accused Bira, Tara, Onkar, Rati Ram and some 7-8 unknown persons. The appellants were armed with country made pistols and other assailants were armed with lathi, bhala and other lethal weapons. A scuffle took place between the assailants and Onkar Singh (deceased) and he received a gun shot injury on his chest and died. Some of the assailants climbed down into the house of the informant and tried to break open the doors of the rooms but on their failure to do so, they opened fire on the doors and some of them entered the rooms through ventilators. The firing caused injuries to the informant's son Chandra Bose and daughter Tarwati. On seeing pressure mounting, the culprits pushed the deceased (Onkar) into the fire of the "Chappar" which had been set ablaze by the informant. B. On the basis of the said FIR, investigation commenced and I.O. N.P. Singh (PW.6) came at the place of occurrence and collected seven empty shells of 12 bore cartridges alleged to have been fired by the miscreants. He also recorded the statement of witnesses. Site plan was prepared. Blood stained earth and sample of ash of burnt Chappar was collected. The injured persons were sent for medical examination and treatment. Dead body of Onkar Singh was sent for post-mortem. The Investigating Officer arrested Mohd. Shafi, Ahmad Syeed and Suresh on 25.3.1980 and other accused persons subsequently. The Test Identification parade of four accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd. Shafi was conducted and the accused were identified by the witnesses, namely, Roshan Singh, Shishu Pal, Hukam Singh and Jalsur on 17.5.1980. The Investigating Officer filed chargesheet dated 14.1.1981 against 7 accused persons, namely, Bira, Tara, Onkar, Mohd. Shafi, Omveer, Ahmad Sayeed and Suresh. C. The Trial Court framed the charges on 14.1.1981 against all the 7 accused persons under Sections 147, 302/149, 307/149 and 452 IPC. So far as the present appellants and accused Bira are concerned, an additional charge was framed against them under Section 148 IPC. To prove the case, prosecution examined large number of witnesses including Jalsur (PW.2), Shishu Pal (PW.3) and Bani Singh (PW.4) as eye-witnesses of the occurrence. D. The accused persons, namely, Bira, Tara, Onkar and Omveer when examined under Section 313 of the Code of Criminal Procedure (hereinafter called Cr.P.C.) took the plea that they had falsely been implicated because of their previous enmity as 5-6 years prior to the incident, an attempt was made on the life of Shishupal, uncle of the complainant Jalsur (PW.2) and in that case accused Tara, his brother Mahabir and father Munshi faced trial and stood convicted under Section 307 IPC and they served the sentence. It was further submitted that Tara, Bira and Onkar were closely related to each other. In respect of another incident, Jalsur (PW.2) had filed a complaint against Tara and Mahabir under Section 395 IPC but the said case ended in acquittal. The other accused persons took the defence that they had enmity with the police and had falsely been implicated in the case. E. After appreciating the evidence on record and considering all other facts and circumstances of the case, the Trial Court vide judgment and order dated 16.4.1982 convicted all the 7 accused persons and awarded the sentence as mentioned hereinabove in S.T. Case No.277 of 1980. Aggrieved, all the 7 convicts preferred Criminal Appeal No.1096 of 1982 before the High Court of Allahabad. F. During the pendency of the said appeal, Omveer, Ahmad Sayeed and Suresh died and thus, their appeal stood abated. At the time of hearing the appeal, it stood established that Bira was a child on the date of occurrence and therefore, his conviction was maintained but sentence was set aside giving benefit under the provisions of Section 2(4) of the U.P. Children Act, 1951. The appeal of remaining three convicts, namely, Tara, Onkar and Mohd. Shafi stood dismissed vide impugned judgment. Mohd. Shafi did not prefer any appeal. Hence, this appeal only by two convicts.
(3.) Shri S.B. Upadhyay, learned Senior counsel appearing for the appellants has submitted that injured witnesses, namely, Tarawati and Chandra Bose have not been examined. Similarly, independent eye-witnesses, namely, Roshan Singh and Hukum Singh whose presence at the scene of occurrence had been witnessed by Jalsur (PW.2) himself were not examined. Jagdish who had raised hue and cry immediately after hearing the sound of coming of the accused persons on the spot has also not been examined. Only close relatives of Onkar Singh (deceased) have been examined. Therefore, the prosecution withheld the material evidence in its possession. In the facts and circumstances of the case, the provisions of Section 149 IPC were not attracted. The prosecution miserably failed to prove that there was unlawful assembly constituted for the purpose of executing a common object. The prosecution case itself had been that the prime object was to commit dacoity and not murder of Onkar Singh (deceased). In the deposition, Jalsur (PW.2) had made a statement in the court that Rati Ram was involved in the killing of Onkar Singh (deceased) and his name also finds place in the FIR lodged by Jalsur (PW.2) but no chargesheet has been filed against him. In view of the above, the appeal deserves to be allowed.;