- (1.) This appeal is filed by Mahendra Pratap Singh- appellant herein under Section 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the final judgment and order dated 29.07.2005 passed by the High Court of Judicature at Allahabad in Appeal No. 142 of 1981. By the impugned judgment, the High Court has set aside the order of acquittal dated 09.10.1980 of the appellant passed by the Sessions Judge, Jhansi, in Sessions Trial No. A-135 of 1975 under Section 304 Part- II, under Section 307 and Section 324 of the Indian Penal Code (for short the "IPC") and under Section 25 of the Arms Act and as a result thereof he has been sentenced to undergo rigorous imprisonment for 10 years under Section 304 Part-II, 7 years R.I. under Section 307 IPC, 6 months R.I. under Section 324 IPC and 2 years R.I. under Section 25 of the Arms Act.
(2.) 1. The incident leading to the prosecution of the appellant occurred on 12.02.1975 at about 1.00 P.M. at bus stand Lalitpur. According to the prosecution case, on the day of the incident one passenger Bus No. MPR 5393 on its route from Madanpur to Jhansi was stopped by its driver Sukhnandan (CW-3) at bus stand Lalitpur. The departure time of the said bus from the bus stand Lalitpur was 1.00 P.M., but it remained parked till 1.10 P.M. beyond schedule time fixed by the Road Transport Authority. One more Bus No. USG 5519 came from Jammi Dem and reached bus stand Lalitpur at about 1.15 P.M. as per schedule time which was to proceed from Lalitpur bus stand at 1.20 P.M. for Jhansi. Matin Khan (PW-8) driver of Bus No. USG 5519 stopped the vehicle at bus stand Lalitpur at 1.00 P.M. Laxman Dass (PW-4) and his brother Prahlad Babu (PW-9) the owners of the said bus reached at bus stand Lalitpur for settlement of fare accounts with PW-8 Matin Khan-Driver. They noticed some passengers boarding Bus No. MPR 5393 in place of their bus. They asked Sukhnandan (CW-3) driver of Bus No. MPR 5393. to drive his vehicle out of the parking place in order to provide halting place for their bus. The appellant allegedly was standing behind the bus armed with a rifle and was supervising his luggage being unloaded by the conductor from the bus-roof top. PW Prahlad Babu told the appellant that he would lose his passengers and the appellant could get the luggage unloaded after the bus moved ahead of the halting place. On this, the appellant allegedly threatened to shoot PW Prahlad Babu with his rifle if such request would be repeated. PW Prahlad Babu retorted saying that like the appellant, he has seen many shooters in his lifetime. The case of the prosecution further was that the appellant raised his rifle and fired single bullet shot causing injuries to four persons, namely, PW Prahlad Babu, Dhanna Lal (CW-1). Ram Ratan Joshi (CW-2) and Devendra Singh (Deceased) who allegedly were all standing behind PW Prahlad Babu. The appellant tried to re-load the rifle, but was over-powered by the passengers present at the place of occurrence. In the melee, someone hurled a stone which hurt the head of PW Laxman Dass. 2.2. The prosecution proceeded to allege that PW Laxman Dass handed over the appellant on spot to the custody of PW Matin Khan, Vimal Kumar Tewari (PW-10) and Shikhar Chand Naik (PW-13). etc. asking them to wait at the spot till his return. PW Laxman Dass carried injured PW Prahlad Babu, CW-1 Dhanna Lai and Devendra Singh on a Thela to the adjoining District Hospital at Lalitpur. CW-2 injured Ram Ratan Joshi walked himself to the hospital. Dr. S.P. Singh (PW-3) who medically examined the injured persons between 2.00 P.M. and 3.15 P.M. requested Shri B.D. Sharma (PW-19) Sub- Divisional Magistrate of District - Lalitpur to reach at the hospital where PW-19 recorded the statements of the injured. PW Vimal Kumar Tiwari left the place of occurrence and went to the hospital to take PW Laxman Dass with him to the police station. PW Vimal Kumar Tiwari recorded the statement (Ex. Ka-22) of PW Laxman Dass and handed over the same to the Police at Police Station; on the basis of the said statement. First Information Report came to be registered. PW Vimal Kumar Tiwari and other persons took the appellant to the Police Station. Constable Sukhram Singh (PW-15) lodged the appellant in police lock up. He sealed the rifle and four live cartridges found inside it. PW Prahlad Babu and Devendra Singh were taken to the Medical College, Jhansi. but on the way Devendra Singh died. PW Prahlad Babu remained indoor patient in the Medical College for more than three weeks. 2.3. The investigation of the case was conducted by K.P. Singh (PW-17), Station Officer, Police Station Girwar, District Lalitpur. He recorded the statement of PW Constable Sukhram Singh. He also recorded the statement of PW Vimal Kumar Tiwari at the Police Station and then left to the scene of occurrence where statement of PW Laxman Dass was recorded and Site Plan (Ex. K-42) of the spot was prepared. He collected blood-stained earth and plain earth from the spot and sealed them in separate packets (Exs. 16 and 17). He recorded the statements of CW Ram Ratan Joshi and CW Dhanna Lal, injured persons. On 15.02.1975, he handed over the investigation of this case to Shri Chottey Lai Tewari (PW-18) who, at the relevant time was Station Officer at Kotwali, Lalitpur. 2.4. The second Investigating Officer sent the weapon of offence (rifle) and recovered bullets to Ballistic Expert for i examination and comparison. He took the licence of the seized rifle from Raghunath Singh - father of the appellant and later on entrusted the same to him vide supurdarinama (Ex. K-46). He produced ; documents before the District Magistrate for initiating prosecution against the appellant for an offence under Section 25 of Arms Act. The requisite permission was placed on record as Ex. K-47. After; completion of the investigation of the case, he prepared charge sheet against the appellant and filed the same in the Court of Chief Judicial Magistrate, Lalitpur, under Section 304 Part-II, 307 and 324 IPC and. Section 25 of the Arms Act. The learned Chief Judicial Magistrate, Lalitpur, on 07.08.1975 committed the case to the Sessions Judge for trial. The trial of the case has been re-transferred by the High Court of Allahabad to the Court of Sessions Judge of Jhansi. 2.5. The appellant pleaded not guilty to the charges and claimed to be tried. The prosecution, in order to substantiate its case, examined as many as 19 witnesses, out of whom PW Laxman Dass, PW Matin Khan, injured Prahlad Babu, PW Vimal Kumar Tiwari and PW Shikhar Chand Naik are the eyewitnesses. PW Dr. S.P. Singh examined the injured at the Lalitpur Hospital and certified their mental fitness to enable them to make statements to PW Shri B.D. Sharma, Sub-Divisional Magistrate. Kashi Ram (PW-5) and Gaya Singh Chauhan (PW-7) are the formal witnesses who have produced time-table and the way bills dated 12.02.1975 in regard to the route of passenger Bus No. MPR 5393 and Bus No. USG 5519 plying on Lalitpur-Jhansi road. Sh. Radhey Shyam Mishra (PW-11) is the Ballistic Expert of the Forensic Sciences Laboratory; U.P. Dr. Radha Mohan Aggarwal (PW-12) performed the autopsy on the dead body of Devendra Singh. PW K.P. Singh and PW Chottey Lai Tewari are the Investigating Officers. Dr. S.R. Gupta (PW-1). Harnam Singh (PW-2), Dr. Kulbir Singh Handa (PW-6), Head Constable Raghuvansh Singh (PW-14), Head Constable Sukhram Singh (PW-15) and Chandrabhan (PW-16) are the formal witnesses. Besides, the oral evidence of the aforesaid witnesses, formal evidence was also tendered on affidavits of compounder Uma Shanker Tewari (Ex.Ka-54), Head Constable R.S. Gautam (Ex.Ka-55). constable Gyan Singh (Ex. Ka-56). constable Ram Chhabila (Ex.Ka-57), Head Constable Mohammad Sabir Khan (Ex.Ka-58), constable Shyam Deo Upadhya (Ex.Ka-59), Head Constable Virjan Rai (Ex.Ka-60). Dr. Shiv Shanker Lal Agarwal. a reader in surgery at the Medical College. Jhansi (Ex.Ka-65), constable Bhika Prasad (Ex.Ka-68), S.I. Brij Raj Singh (Ex.Ka-69) and retired Head Constable Shital Singh (Ex.Ka-71). Reports of the Chemical Examiner (Ex.Ka-52) and the Serologist (Ex.Ka-53) were also tendered in evidence. The prosecution had given up injured Dhanna Lal on the ground that he had joined hands with the appellant. Ram Ratan Joshi injured and Sukhnandan driver of Bus No. MPR 5393 were also given up being unnecessary witnesses. However, later on, the Court examined Dhanna Lal. Ram Rattan and Sukhanandan as CW-1, CW-2 and CW-3 respectively. 2.6. The appellant in the statement recorded under Section 313 of the Criminal Procedure Code (for short Cr.P.C) denied the incriminating evidence appearing against him. He examined Chandan Singh (DW-1) in his defence. His plea was that he was not present at the scene of occurrence on the alleged day of incident. He pleaded that at the relevant time his father Raghunath Singh was sitting MLA of Jansangh Party who did not have good relations with Shri Maurya the then Superintendent of Police, who was Ex-officio member of Nehru College Committee. He pleaded that two student leaders of Nehru College were got terminated by Shri Maurya the Superintendent of Police and were locked in jail under his order. He stood surety for those persons. Pamphlets of the said incident were also published against Shri Maurya. who was forced to withdraw the case against those boys and due to that reason Shri Maurya has implicated him in : this false case. He pleaded that on the day of incident at about 2.00 or 2.30 P.M., the police arrested him from his house and also seized rifle and four bullets from there. The seized rifle was later on returned to his; father and another rifle (Ex.2) was taken into possession by the Police.
(3.) Before we proceed to deal with the evidence of the witnesses, it would be appropriate to extract the injuries found by Dr. S.P. Singh on the persons of PW Prahlad Babu, deceased Devendra Singh, Dhanna Lal (CW-1) and Ram Ratan Joshi (CW-2) which find recorded in the Statement of Injuries: Prahlad Babu: (1) One gunshot wound 1/2" x 1/4" on the lower part of left side chest, 6-1/2" below the nipple. Wound was bleeding, margins were inverted. There was no blackening and tattooing around the wound. It was a wound of entry. (2) One gunshot wound 3/4" x 1/2" on left side of back, 2" away from the middle line wound was bleeding. Margins were averted no blackening or tattooing around the wound of exit. Devendra Singh: (1) One gunshot wound 3/4" x 1/2" x abdominal cavity deep, on right side of abdomen, 21/2" above the anterior superior iliac spine. Omentum was coming out of the wound. Blood was coming out of the wound. Margins were inverted. There was no blackening or tattooing around the wound. Wound of entry. (2) One wound of gunshot, 11/2" x 3/4", 1" below the anterior superior iliac spine, bleeding. Margins were averted. One piece of metal which was projecting from the wound was taken out and sent to S.P. Lalitpur under seal. This was exit wound. Dhanna Lal: (1) One lacerated wound 71/2" x 21/2" X bone deep on the turn of right upper arm in the upper part with commuted fracture of humerous bone and severance of the blood vessels and nerves of the arm bleeding. (2) A lacerated wound 41/2" x 1 1/2" on the posterior side of the right arm. Wound is through and through and communicating with injury No. 1. Bleeding Ram Ratan Joshi: (1) A gunshot wound 1/4" x 1/8" lower 1/3rd portion on right arm lateral side 1" above the elbow. Margins inverted. Bleeding. Wound of entry. (2) A gunshot wound 1/4" x 1/8" l1/2" ) below the injury No. 1 on the lateral side in the upper l/3rd right fore arm. Bleeding. Margins inverted wound of entry. (3) A gunshot wound 1/4" x 1/8" on the left fore arm middle l/3rd 5" below the elbow in the posterior part lateral side. Margins inverted. Wound of entry. (4) A gunshot wound 1/2" x 1/4", l1/2" above the highly part of iliac crest left side abdomen, margins inverted. Wound of entry.;