- (1.) NINE appellants Chhotey Singh A-1, Samai Singh A-2, Bani Singh A-3, Gajendra A-4, Ompal A-5, Nawab Singh A-6, Veer Singh A-7, Prempal Singh A-8 and Hari Raj A-9 have come up to this court challenging their convictions and sentences recorded by IInd Additional Session's Judge, Bulandshahr in S.T. No. 287 of 1980,State Vs. Chhote Singh and others, P.S. Anupshahr, District Bulandshahar. All the appellants but for A-3 and A-5 have been convicted u/s 147 IPC while A-3 & 5 have been convicted u/s 148 IPC. Jointly all the appellants have been convicted u/s 452, 304(II)/ 149 IPC. For the offence under Section 147 IPC 1 ? years RI, u/s 148 I.P.C. 2 years RI, u/s 452 2 years RI and u/s 304(II)/149 10 years RI are the imposed sentences. All the sentences have been ordered to run currently.
(2.) BACKGROUND facts, as was informed to the police through written report Exhibit Ka-1 coupled with Chik FIR Exhibit Ka-2 and statement of fact witnesses during trial, indicate that because of existing enmity between informant Hari Singh and the accused A-1 and A-9 coupled with Makbool Singh (since dead), all the appellants climbed on the roof of informant's house and stepped down from staircase into enclosed courtyard (Aagan). They abused house inmates and challenged that they will play a bloody Holi. Informant and his brother Bharat Singh vainly persuaded them to desist from their such an intention as it was a Holi festival day but their requests went unheeded and trespassers started assaulting house inmates from blunt objects carried by them causing injuries to the informant, his wife Pushpa Devi, his brothers Prem Singh and Bharat Singh and Smt. Maha Devi w/o Prem Singh. Shrieks of beaten victims attracted Mukhtar Singh, Udai Veer, Nanak, Puran Singh at the spot. In the midst of assault, Prem Singh and Bharat Singh, to save their lives climbed on the roof, but they were chased there by Om Pal Singh, Bani Singh both armed with ballam and Hari Singh, Veer Singh and Prem Singh, all armed with lathis and these accused assaulted Bharat Singh and Prem Singh on the roof. Bharat Singh was assaulted with ballam whereas Prem Singh was belaboured by lathi. In retaliation and self defence, Bharat Singh and Prem Pal Singh pelted bricks and stone on the malefactors. On approaching of the witnesses, those accused, who had remained in the enclosed courtyard escape from the front door of the house and those assailants, who were on the roof, escaped from back of the house. Bharat Singh fainted because of the sustained injury by ballam. Informant Hari Singh arranged for a buggi and along with all the injured except his wife Pushpa started for police station Anupshahr. In the way they got a bus and therefore, leaving buggi they boarded the bus and reached Anupshahr Hospital where injured Bharat Singh and Prem Singh were admitted. Hari Singh thereafter dictated FIR to one Ramesh Sharma, a shopkeeper, and after verifying it's correctness signed on it. He thereafter took the said FIR, Ext. Ka-1, to police station Anupshahr, at a distance of 5 miles and lodged it as crime number 66-A under Sections 147, 148, 323, 324, 452, 308 IPC the same day at 4.20 p.m. Head Constable Umesh Chand registered the crime prepared Chik FIR,Ext.Ka-2 and the relevant GD entry Ext. Ka-3. S.I. N.S. Gahlot commenced the investigation copied the Chik FIR & GD entry, recorded 161 Cr.P.C. statement of Head Moharir Umesh Chand and thereafter he came to the hospital where he recorded interrogatory statements of Bharat Singh and Prem Singh. From the hospital P.W.4 returned to the police station and recorded interrogatory statements of Hari Singh and Maha Devi and thereafter copied the medical examination reports of the injured. P.W.4 thereafter interrogated and recorded statements of accused Samai Singh, Bani Singh, Ompal and Hari Raj, who were arrested meanwhile. Following day I.O. interrogated informant's wife Smt. Pushpa Devi and directed her to get herself medically examined. He conducted spot inspection and prepared site plan Ext. Ka-4. On 16.3.79 he was informed regarding death of injured Bharat Singh and therefore, I.O. converted the offence under Section 304 IPC. I.O. thereafter copied postmortem examination report and on 29.3.79 through Constable Wahid Khan of police station Kotwali dispatched blood stained cloths of the deceased for chemical examination. I.O. thereafter interrogated other witnesses and copied supplementary report of injured Prem Singh in which it was mentioned that he had sustained a fractured and therefore, I.O. altered the offence under Section 325 IPC. Concluding investigation I.O. laid charge-sheet Ext. Ka-5 on 11.5.79 against the accused. S.I. R.P. Sharma P.W.6 had conducted inquest on the dead body of the deceased Bharat Singh on 16.3.79 in district hospital Bulandshahar vide Ext. Ka-14. He had prepared inquest report and other relevant papers of challan lash, photo lash, request for post-mortem examination, report to R.I. etc., which papers have been proved and exhibited as Ext. Ka-15 to Ka-18. Sealing dead body he had dispatched it for autopsy purposes through Constable Hari Prakash and Wahid Raza.
(3.) INJURED Hari Singh, Prem Singh, Bharat Singh (expired) Smt. Maha Devi and Smt. Pushpa were medically examined by Dr. Suresh Kumar P.W.5 in Civil Hospital Anupshahr. Bharat Singh deceased were medically examined on 14.3.79 at 4.30 p.m. vide exhibit Ka-6, informant Hari Singh was examined on the same day at 5.25 p.m. vide Ext. Ka-7, injured Prem Singh was examined on the same day at 5.40 p.m. vide Ext. Ka-8, Smt. Maha Devi was examined on the same day vide Ext. Ka-9 at 6.00 p.m. Smt. Pushpa Devi w/o informant was examined on 16.3.79 at 11.00 a.m. vide Ext. Ka-10. Supplementary report in respect of fractured sustained by injured Prem Singh dated 28.3.79 is Ext. Ka-11. The copy of the medical reports in order of its seriatum are reproduced below:- Exhibit Ka-6 Examined Bharat Singh S/o Kalyan Singh aged about 32 years resident of Vill. Hissawati P.S. Anupshahr, Distt. BSR on 14.3.79 at 4.30 p.m. B.B. Pol. Const. C/77 Ram Autar P.S. BSR. M.I. One raised mole on left side face 1 cm away from left nostril. Injuries: (1) Punctured wound 2.5 cm x 1 cm x chest cavity deep on the back of right chest, 13 cm away from back bone, 4 cm below interior angle of right scapula. bleeding present. Surgical emphases present all over right chest. Adv. x-ray. Tailing present at lower end. (2) Lacerated wound 7 cm x 1 cm x scalp deep on right side head, 7 cm above right ear, at 1' O clock bleeding present. U.O. (3) L.W. 5 cm x 1 cm x scalp deep on the right side head, 2.5 cm behind injury no.2 bleeding present. U.O. (4) Contusion 7 cm x 2.5 cm on the left side back 3.5 cm away from back bone. bright red. oblique middle 3rd of back. (5) Incised wound 2 cm x 0.5 cm x 1 cm deep on the outer & upper part of right buttock. Bleeding present, tailing present at upper end. Inj. no.1 U.O. Adv. X-ray, Inj. No.2, 3 U.O. Inj. No.4 & 5 simple caused Inj. No.1 and 5 caused by sharp edged weapon. Inj. no.2, 3 & 4 caused by blunt & hard object. Duration fresh. Exhibit Ka-7 Examined Hari Singh aged about 28 years S/0 Kalyan Singh resident of vill. Hissawati, P.S. Anupshahr, Distt. Bulandshahr on 14.3.79 at 5.25 p.m. B.B. Pol. const. 77/Ram Autar P.S. Anupshahr. M.I. One black mole 3.5 cm away from right angle of mouth. Injuries: (1) L.W. 3 cm x 0.2 cm on the front of chest 5 cm below suprasternal notch, skin deep, bleeding present. Inj. no.1 simple. caused by blunt & hard object. Duration fresh. Exhibit Ka-8 Examined Prem Singh aged about 32 years S/o Kalyan Singh resident of Vill. Hissawati P.S. Anupshahr, Distt. BSR on 14.3.79 at 5.40 p.m. B.B. Pol. Const. C 77/Ram Autar P.S. BSR. M.I. One black mole on right chest, 5.5. cm away from right nipple (towards left). Injuries: (1) L.W. 4.5 cm x 1 cm x scalp deep on the right side forehead, starting from outer end of right eye brow. bleeding present. Clotted blood present around the wound. (2) L.W. 1.5 cm x 0.5 cm x scalp deep on the middle of forehead at hair line. bleeding present. clotted blood present. (3) Lacerated wound 3.5 cm x 0.5 cm x scalp deep 7.5 cm above left ear at 1.0 clock position. bleeding present. (4) Lacerated wound 0.2 cm x 0.2 cm x skin deep with swelling in an area of 3 cm x 2 cm with clinical fracture of left forearm lower 3rd, 4 cm above left wrist joint. U.O. Adv. X-ray. (5) Multiple contusion in an area of 1 cm x 13 cm on the back of middle right. bright red. (6) Contusion 7 cm x 1.3 cm on the right side both lower 3rd bright red. (7) Abraded contusion 3 cm x 2 cm on the medial of right ankle joint. red. injury no.1, 2, 3 & 4 U.O. Adv. X-ray. INJ. no.5 simple Inj. no. 1, 2, 3, 4 & 7 caused by blunt & hard object. Duration fresh. Exhibit Ka-9 Examined Smt. Maha Devi aged about 35 years W/o Prem Singh resident of Vill. Hissawati, P.S. Anupshahr district Bulandshahr on 14.3.79 at 6 p.m. B.B. C/77 Ram Autar P.S. Anupshahr. M.I. One black mole on right side neck (root) outer & front part. Injuries: (1) Swelling with redness an left elbow joint. 12 cm x 6 cm U.O. Adv. X-ray. Mud. around the back of joint. (2) Contusion 4 cm x 2 cm on the top of right shoulder. bright red. (3) Abrasion 3 cm X 2 cm on the front of right knee joint. Inj. no.1 U.O. Adv. X-ray inj. no.2 & 3 simple Inj. no.1, 2 & 3 caused by blunt & hard object. Duration fresh. Exhibit Ka-10 Examined Pushpa Devi aged about 30 years W/o Hari Singh resident of Vill. Hissawati P.S. Anupshahr, Distt. Bulandshahr on 16.3.79 at 11 A.M. B.B. Pol. Const. 557 Mamchand P.S. BSR. M.I. One black on the front & outer part of left forearm, 9 cm below elbow joint. Injuries: (1) Contusion 20 cm x 1.5 cm on the outer & back of left shoulder, upper arm & elbow joint. oblique brownish. (2) Contusion 8 cm x 1.2 cm on the middle of left scapular region. outer part, brownish. oblique. (3) Abrasion 2 cm x 0.3 cm on the front & lower 3rd of right leg. soft to firm 8 cm, brownish. (4) Contusion of 8 cm outer part of right shoulder joint. Inj. no. 1, 2 & 3 simple, caused by blunt & hard object. Duration about 1-1/2 day. Exhibit Ka-11 Supplementary report of Prem Singh S/o Kalyan Singh. Examined on 14.3.79. Inj. 1, 2 & 3 simple. Inj. no.4 forms to be grievous as there is fracture of left radius bone as marked with skiagram. dated 16.3.79 X-ray plate no.9. Autopsy on the dead body of the deceased Bharat Singh was performed on 16.3.79 at 4.30 p.m. vide Ext. Ka-19. In the autopsy report doctor had found his body to be average built and rigor mortis present all over it. No decomposition had started and eyes were closed. Deceased was estimated to be 22 years of age. His right lung was found to be punctured along with pleura. His stomach was empty and gases were present in his intestine. Autopsy doctor has noted followings ante-mortem injuries on deceased body:- 1. stitched wound 2.5 cm long into 1 cm x 6 cm deep on the deep chest cavity on the left side back of chest 13 cm away from back bone 4 cm. below right scapula and surgical emphasis was present. Tailing at the end of the wound was present. 2. stitched wound 2 cm long through stitched on the top of it right side. 3. lacerated wound 3 cm x 1 cm x scalp on middle head. 4. contusion 2 cm x 1 cm on the right shoulder front. 5. stitched wound 2.5 cm long on right side head 3 above ear on temporal bone. Genuineness of autopsy report has been admitted by the defence and hence it's formal proof was dispensed with. After filing of charge-sheet, accused were summoned and their case was committed to Session's Court for trial where it was registered as S.T. No. 287 of 1980, State Vs. Chottay Singh and others. During trial prosecution relied upon oral testimony of six witnesses out of whom informant P.W.1, injured P.W.2 and independent witness P.W.3 were fact witnesses. Formal witnesses included I.O. S.I. N.S. Gahlot, P.W.4,Dr. Suresh Kumar M.O., Civil Hospital, Anupshahar P.W.5 and R.P. Sharma, S.I. P.W.6. ;