- (1.) P. P. Gupta, J. This is an appeal filed on behalf of the State of U. P. against the judgment and order dated 17. 8. 77 passed by the III Additional District & Sessions Judge, Saharanpur, in S. T. No. 63 of 1977, acquitting the appellants.
(2.) THE charge against the appellants was that they, in the night between 18th and 19th December 1976, at about 11. 00 p. m. at the house of Bakshish Singh in the jungly of village Kulheri, P. S. Nakur, distriact Saharanpur, formed an unlawful assembly and in prosecution of the common object of such assembly viz. in committing the murder of Gurmail Singh and Kripal Singh, committed the offence of rioting and also committed the murder by intentionally and knowingly causing the death of Gurmail Singh and also intentionally fired shots at Kripal Singh with such intention and knowledge and under such circumstan ces that if by that act they have caused the death of the said Kripal Singh they would have been guilty of murder and that hurt was caused to said Kripal Singh by the said act. The prosecution case, in brief, is that in the night between 18th and 19th Decem ber, 1976 at about 11. 00 p. m. the appellants, variously armed, came to the house of the complainant Bakshish Singh in village Kalheri. The appellants Lamber Singh, Jagdish Singh and Bhajan Singh were armed with their licensed guns, while appellants Chindu Singh, Mahender Singh and Makhan Singh were holding lathis. They knocked at the main door of Bakshish Singh and asked him to come out. However, Bakshish Singh declined to open the door. All the appellants thereupon hurled abuses on him. Sharvan Singh, the real brother of Bakshish Singh, accompanied with his two sons, viz. Kirpal Singh and Gurmail Singh, and servants Manga, Nanga and Persa, who were working on their nearby crusher, on hearing the noise, rushed to the house of Bakshish Singh. On being enquired by Sharvan Singh,the appellants Jagdish Singh said to him that he had come to ask as to why Bakshish Singh had sold his land to Bhajan Lal, an outsider. Recognising the voice of Sharvan Singh, the complainant, Bakshish Singh, and his sons, viz Shalender and Mahender came out of the house, armed with lathis and Gandasa. Sharvan Singh, how ever, warned Bakshish Singh not to come out of the house as the appellants were holding guns. Simultaneously, the appellants Jagdish, Lamber and Bhajan Singh fired their guns and Kirpal Singh and Gurmail Singh fell down injured. The complainant, Bakshish Singh and his companions then attacked the appellants with the arms, which they were carrying and managed to apprehend the appellants Jagdish, Lamber, Chhindu and Mabender on the spot. Jagdish and Lamber Singh were relieved of their guns. Hearing all these hue and cry, the residents of the village also arrived at the spot. Bakshish Singh escorted his injured nephews in a bogie to Nakur. A written report, Ex. Ka-1, scribed by Ved Prakash, Munim, was delivered by Bakshish Singh at P. S. Nakur on the same night at 0. 15 a. m. , S. I. Shivraj Singh, (P. W. 4) investigated the case. He interrogated the injured, Kirpal Singh and Gurmail Singh as also the complainant, Bakshish Singh, at the police station. Both the injured were sent to Civil Hospital at Nakur and were finally taken to District Hospital, Saharanput. The Investigat ing Officer reached the place of occurrence at about 3. 00 a. m. He took into custody the appellants Jagdish, Lamber, Mahinder and Jhandu. He found Jhandu injured. All these four appellants were then sent to the Police Station. The complainant, Bakshish Singh and his brother, Sharvan Singh, handed over two guns and nine live cartridges as also three used cartridges to the I. O. Simple and blood stained earth was collected and other necessary formalities were completed. Thereafter, the Station Officer, P. S. Nakur, Sri Satendra Pal Singh, took up the further investigation of the case himself. The appellant Bhajan Singh was arrested from his house and his licensed gun was taken into custody. The appellant Makkhhan Singh surrendered in court. Meanwhile, the injured Gurmail Singh, died at the District Hospital, Saharanpur on 19. 12. 76 at 2. 30 a. m. Charge-sheet against the accused was submitted on 29. 12. 76.
(3.) ALL the appellants did not plead guilty to the charges. Their defence was that the appellant Jagdish, while on way back to his village in the night of occurrence, met Sharvan Singh, Gurmail and Kirpal, who invited him to their house for tea. Surendra and Mahindra, the two sons of the complainant, Bakshish Singh, were also present there. When they finished with the tea, Sharvan Singh and his family members asked Jagdish to sign a blank document to be converted into an ante dated agreement for sale of his land in their favour. The appellant Jagdish had already entered into an agreement for sale of his land in favour of appellant Bhajan Singh. He, therefore, refused to be a party to such manipulation. Sharvan Singh and his family members then indulged in abused. Jagdish Singh got up and started moving out of the house, but Gurmail Singh inflicted a Bhala blow on his back and his companions surrounded him. It was at that moment Jagdish Singh fired his gun in self defence. He fired two shots whereupon he was overpowered and deprived of his gun and was given further beating. The complainant, Bakshish Singh, brought the police party on the spot and the injured Gurmail and Kirpal were immediately sent for medical treatment. The police party escorted Jagdish Singh to his house and from where his close relation, Chhindu was arrested. Soon after, the appellants Mahender and Lamber were also arrested from their houses situate closely and the licensed gun of Lamber was also taken into custody. The prosecution examined the three persons, viz. P. W. 1, Bakshish Singh, P. W. 2, Kirpal Singh and P. W. 3, Persa Singh, as eye-witnesses of the incident. The only other witness examined at the trial, was S. I. Shivraj Singh (P. W. 4), who conducted the investiga tion. Formal proof of the documents, such as injury report and post-mortem report were dispensed with on behalf of the appellants. Kirpal Singh was examined at the District Hospital, Saharanpur in the night of the occurrence at 2. 00 a. m. One lacerated wound 8 1/2 cm x 4 cm on the right side chest, lower part, bone deep, with multiple gun-shot wounds around was found on his person. The injury report is Ex. Ka 10. Gurmail Singh was examined at 2. 29 a. m. and multiple gun-shot wound on the front of outer side of whole of the thigh and penis, each 1/4 x 1/4 cm, were found on his person. He expired during examination at 2. 30 a. m. His injury report is Ex. Ka-11 on record. The post-mortem on the dead body of Gurmail Singh was performed on 19. 12. 76 at 4. 40 p. m. and the post mortem report is Ex. Ka-13 on record. This document bears out that Gurmail Singh was aged about 19 years and had the average built body. Multiple gun-shot wounds of entrance in an area of 38 cm x 12 cm on the left side of lower part of abdomen, male organ and front of left thigh were found as ante mortem injuries. The cause of death was described as shock and haemorrhage due to the aforesaid injuries.;