Decided on July 02,2013

Babu Toup Appellant


SERVESH KUMAR GUPTA, J. - (1.) THE challenge herein is to the judgment and order dated 17.04.2009 rendered by learned Additional Sessions Judge/First F.T.C., Roorkee in S.T. Nos.81 of 2008 and 82 of 2008, both titled as 'State Vs. Babu Toup'. S.T. No.81/2008 was tried for the offences punishable under Sections 354, 302 IPC whereas S.T. No.82/2008 was tried for the offence punishable u/s 25 of the Arms Act. In all the offences, learned Additional Sessions Judge has found the accused guilty and has passed the sentence appropriately.
(2.) THE case was initiated on the basis of the first information report (Ex.Ka 1), which was lodged by Shyam Lal, the real brother of accused. The genesis of prosecution was that the appellant was the real father in law of Mrs. Santri, W/o Pritam Singh (deceased). The appellant/accused had an evil eye upon Mrs. Santari and to molest her, after consuming liquor, was the order of the day. This was the subject matter of usual quarrel between Pritam Singh and accused Babu Toup. Once resistance was extended by Pritam Singh when Mrs. Santari was molested at about 1 PM on the date of incident i.e. 5.11.2007, which infuriated the accused. Accused took out his gun and opened the fire upon his son Preetam making him shot dead. When Mrs. Santari escaped from the house in order to save herself, accused chased her too for some distance. The incident was seen by villagers Harpal, Harphool, Ram Kumar, Rajesh, Yashpal and several others. The police station was informed and later the report, having been scribed by Mool Chand, was lodged by Shyam Lal on 5.11.2007 itself at 2:30 PM, i.e. within 1 1/2 hours of the incident, on the basis whereof Chik report (Ex.Ka 2) was prepared. Inquest (Ex.Ka 11) commenced on the same day on 5.11.2007, which could be concluded up till 4:50 PM. The opinion expressed by the witnesses of the inquest, as also by the Sub Inspector of the Police, was that the deceased had died on account of gunshot injuries. Autopsy on the dead body was conducted on 06.11.2007 at 1:00 PM., report whereof is Ex.Ka 2. Cause of death was found to be haemorrhage and shock due to ante mortem injuries, whereas the duration of death was opined to be one day old. The following ante mortem injuries were noticed on the dead body during autopsy: "1. Six gunshot wounds of entry in an area of 6 x 4 cm, left side, lower chest and upper abdomen, 14 cm below nipple at 5 o'clock position, each wound measuring 1.0 x 1.0 cm, circular and surrounded by the rim of collar of abrasion. All the six tracks were passing through the abdominal wall. Fire tracks pierced through spleen and were embedded in vertebrae L1, L2 and L3 as shown in x ray (x ray done before starting post mortem examination). Sixth track was passing through abdominal wall rupturing anterior wall of stomach and embedded in right lobe of liver." The accused was arrested on the date of incident itself, and from his possession, a 12 Bore gun and two live cartridges were recovered, recovery memo whereof is Ex.Ka 5. From the place of occurrence, the police also recovered an empty cartridge wherefor the recovery memo Ex.Ka 8 was prepared. Plain and bloodstained soil too was taken into possession from the spot, recovery memo whereof is Ex.Ka 7.
(3.) DURING the course of investigation, the gun along with two live cartridges and one empty cartridge was sent for the purpose of expert opinion. Report given by Forensic Science Laboratory, Uttarakhand is available on record. The investigation, accordingly, culminated into submission of the charge sheets Ex.Ka 10 (U/s 354, 302 IPC) and Ex.Ka 16 (U/s 25 Arms Act) against the appellant/accused.;

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