Decided on November 22,2012



- (1.) One Ashok Kumar addressed a complaint to Station Officer, Police Station Gadarpur, District Udham Singh Nagar, on 27.06.1999, enumerating the facts therein that on the selfsame day, i.e., 27.06.1999, when the informant was harvesting his field, situated in Shyamnagar and the tractor was being driven by Bikau Miyan, then informant's brother Rajendra Kumar (appellant) armed with licensed rifle came along with his father Hemraj (appellant) on the field. A dispute was going on between them (informant and appellants) regarding the partition of agricultural land. Accused-appellants started abusing informant Ashok Kumar. Hemraj exhorted Rajendra to kill the informant. Rajendra Kumar fired twice upon the informant with his licensed rifle with the intention to kill him (Ashok Kumar). One bullet hit the right arm of driver Bikau Miyan and the other bullet hit the mudguard of tractor. Ashok Kumar escaped unhurt. Many a people working in the field came. Accused-appellants went away after threatening them with dire consequences. The incident took place at 6:30 p.m. Driver/injured was taken to hospital. The incident was reported to PS Gadarpur on the self-same day, at 7:30 p.m., in relation to the offences punishable under Sections 307/506 IPC. On the basis of said First Information Report, investigation began. Investigating Officer SI Mahipal Singh Tomar (PW 6) took the statements of the informant and the injured. I.O. inspected the place of occurrence and prepared site plan (Ext. Ka-8). PW 6 affected the arrest of Hemraj and recorded the statements of eyewitnesses. PW 9 ASI Ganga Sahai Satsangi was the Investigating Officer of the case, which was registered against Rajendra Kumar in relation to the offence punishable under Sections 25/27 Arms Act. PW 9 prepared site plan (Ext. Ka-11) and sought the permission (Ext. Ka-12) of the District Magistrate to prosecute Rajendra Kumar. Rifle was given in the supurdagi of Rajendra Kumar as per court's order. When the investigation was completed, two charge-sheets were submitted, one against both the accused-appellants for the offences punishable under Sections 307/506 IPC and the other against accused-appellant Rajendra Kumar in relation to the offence punishable under Sections 25/27 Arms Act. When prosecution opened it's case before the trial court, charges for the offences punishable under Sections 307/506 (II) IPC, as also under Sections 25/27 Arms Act, were framed against the accused-appellant Rajendra Kumar. Charges for the offences punishable under Section 307 IPC read with Section 34 IPC and Section 506 (II) IPC were framed against accused-appellant Hemraj. Both the accused pleaded not guilty to the charges framed against them and claimed trial. Nine prosecution witnesses, viz., PW 1 Ashok Kumar, PW 2 Bikau Miyan, PW 3 HC Ashok Kumar, PW 4 Dr. J.C.Mondal, PW 5 Dr. P.C.Saxena, PW 6 SI (retd.) Mahipal Singh Tomar, PW 7 Dr. D.K.Gupta, PW 8 Surendra Kumar and PW 9 ASI Ganga Sahai Satsangi were examined on behalf of the prosecution. Incriminating evidence was put to the accused-appellants under Section 313 Cr.P.C., in which they said that they were falsely implicated in the case because of enmity. Four witnesses, namely, DW 1 Pharmacist D.K.Joshi, DW 2 Const. Jagat Singh, DW 3 Dr. Jagdish Mondal, Medical Officer and DW 4 Dr. D. K. Vajpayee, Superintendent of Community Health Centre, Nawabganj, Bareilly, were examined in defence. After considering the evidence on record, learned trial court convicted both the accused-appellants in relation to the charges levelled against them and sentenced them appropriately. Aggrieved against the said judgment & order, present criminal appeals were preferred, which are being discussed and disposed of by this common judgment.
(2.) PW 1 Ashok Kumar said that on 27.06.1999, at 6:30 p.m., when he was harvesting his field through the tractor, which was being driven by PW 2 Bikau Miyan, and PW 1 was sitting on the right mudguard of the tractor, his father Hemraj (appellant) and younger brother Rajendra Kumar (appellant) came on the field situated in Shyamnagar. Rajendra Kumar was carrying rifle. The appellants started abusing the informant and also asked him to vacate the field. When he did not oblige them by leaving the field, the appellant Hemraj instructed appellant Rajendra Kumar to kill PW 1 and PW 2. Appellant Rajendra Kumar fired upon PW 1 Ashok Kumar, but he escaped unhurt. The fire struck the driver of the tractor (Bikau Miyan) in his forearm. The second fire hit the mudguard of the tractor in which PW 1 was sitting. The incident was seen by him (PW1 Ashok Kumar) and PW 8 Surendra Kumar. Accused-appellants fled away. Injured Bikau Miyan was taken to PS Gadarpur, where the report was lodged. PW 1 identified his signatures on the complaint (Ext. Ka-1). He also said that the injured was taken to Government Hospital, Rudrapur where he was given treatment. PW 1 also said that a dispute of land was going on between him, on the one hand and his father and brother, on the other hand.
(3.) PW 2 Bikau Miyan was the injured, who said that, on 27.06.1996, at 6:30 p.m., when he was ploughing the field of Ashok Kumar with tractor and PW 1 Ashok Kumar was sitting on the (mudguard of the) tractor, appellants Rajendra Kumar and Hemraj came on the field. Appellant Rajendra Kumar was carrying licensed rifle in his hand. Both of them started abusing them. Appellant Hemraj, who was father of PW 1 Ashok Kumar, instructed appellant Rajendra Kumar to kill PW 1 and PW 2. Appellant Rajendra Kumar fired upon PW 1 Ashok Kumar with the intention to kill him, but he escaped unhurt and the bullet hit PW 2's forearm. PW 2 sustained injury in his forearm. The second fire hit the mudguard of the tractor, where PW 1 was sitting. PW 2 was taken to Government Hospital, Gadarpur, whereupon the Medical Officer referred him to Rurdrapur. He was also given treatment in Bareilly.;

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