- (1.) PALOK Basu and B. P. Singh, JJ. These two connected criminal appeals have been filed against the judgment and order dated 27. 2. 90/28. 2. 90 passed by II Addl. Sessions Judge, Etawah in Sessions Trial No. 55 of 1982.
(2.) BY the said judgment appellant Virendra has been convicted under Section 302 I. P. C. for the murders of Sudershan and Ram Saran sentenced to death thereunder. Appellant Subhash has been convicted under Section 302 I. P. C. for the murder of Sudershan and convicted under Sections 302/1491. P. C. for the murder of Ram Saran alias Bhaiya Lal and sentenced to imprisonment for life on those two counts. Rest all the appellants namely Dujja, Vidhya, Ram Autar S/o Naram, Ram Autar S/o Lallu, and Surendra have also been convicted under Sections 302/149 I. P. C. for the murders of Ram Saran and Sudershan and sentenced to imprisonment for life. Appellant Virendra, Subhash, Dujja, Vidhya have been further convicted and sentenced under Section 148 I. P. C. to three year's R. I. whereas appellants Ram Autar S/o Narain, Ram Autar S/o Lallu and Surendra have been further convicted and sentenced under Section 147 I. P. C. two year's R. I. All the sentences were directed to run concurrently. Sri A. D. Giri, Senior Advocate and Sri Dileep Kumar learned Counsel for the apnlteiits in both the appeals and Sri R. C. Deepak, learned A. G. A. on behalf of the State or U. P. have been heard at lenght and the entire record have been examined. According to the prosecution allegations an incident happened in village Dhasera regarding a quarrel over a Chabutara between Ram Lal Lodhi and Nalhu Ram Kahar. Police arrested both the parlies under Section 151, Cr. P. C. Sudershan (deceased) was in the party of Nathu Ram Kahar. For that reason Ram Lal was having enmity with Suder shan. On the incident date i. e. 1. 6. 1981 at 6. 30 a. m. when Sudershan was coming to his house from Khalihan of Anand Babu and had reached Ram Lal's house, appellants Virendra and Subhash both sons of said Ram Lal, armed with country made pistols, Ram Lal (dead during trial) armed with Tanchia, Dujja and Vidhya appellants armed with Dharia, Ram Autar S/o Narain, Ram Autar S/o Lallu, Surendra and Mauji Lal (dead during trial) armed with lathis apprehended Sudershan and Virendra fired upon him at which Sudershan ran and reached infront of the house of the informant Ram Shanker, P. W. 1 and entered into the room. Informant's brother Ram Saran closed the door to save Sadarshan and reprimanded all the appellants not to beat (Ab Mat Marana ). In the mean time because of hue and cry, many witnesses had arrived. At this appellant Virendra fired two shots upon Ram Saran, as a result of which Ram Saran fell dead. Simultaneously Subhash entered into the room and fired two shots upon Sudershan, who fell down on the Chaff, kept inside the room. Virendra and Subhash hit Sudershan by the barrel of pistols also, whereafter on being threatened by the witnesses, the appellants ran away. The informant Rain Shanker found his brother Ram Saran and Sudershan dead, he took out the body of Sudershan and placed it near the body of Ram Saran. This incident was narrated, as noted above, in the F. I. R. lodged by Ram Shanker at 9. 30 a. m. at police station Phaphund, District Etawah.
(3.) IT may be mentioned here that the F. I. R. was duly proved during the trial as Ext. K. a-1. AJ a later siage the appellants wanted to challenge the signature and handwriting of Ram Shanker and therefore, the said witness Ram Shanker, P. W. 1 was recalled and had replied to a quesiion that he had written out the F. I. R. in his own handwriting and had lodged it himself. After this, the trial Judge had, for the reasons best known to him, on an application of the accused, permitted the original F. I. R. to be sent to the handwriting expert. At this, the handwriting expert, P. W 8 Prakash Chandra Pathak has given an opinion that the original F. I. R. Ext. Ka-1 was in the handwriting of P. W. 1. He has further deposed that he had despatched the original F. I. R. by Post, addressed to the trial Judge. But this letter was refused by the office of the trial Judge, which refusal has been duly proved by Bhagwati Prasad, P. W. 7 who was Dy. Manager, Post & Telegraphs department. During the trial, the photostat copy of the original F. I. R. as photographed by the Expert was proved as Ext. Ka-21 and is on record. Suffice it to say for the time being that after the alleged refusal of the office of trial Judge to accept the envelop from the Expert, the said envelop was weeded out. The fact thus remains that the original F. I. R. is no more avail able. But for the reasons stated in the discussion herein below, it will not affect the prosecution case at all and the eye-witness account furnished by the prosecution in the instant case if believed can be the safe basis for upholding the judgment of the trial Judge. To complete the chronology of the case, after the F. I. R. was lodged a case was registered under Sections 147,148,149 and 3021. P. C. at report No. 15 in the G. D. dated 1. 6. 1981 at 9. 45 a. m. Paras Ram Verma, P. W 6 was the Investigating Officer. The copy of the G. D. and chick F. I. R. have been filed and proved on the record as Ext. Ka-16 and Ext. Ka-17 respectively. These two documents are exactly in the nature of true copies of the Ext. Ka-1, photocopy of which has been proved as Ext. Ka-21. The Investigation officer reached the spot the same day and prepared inquest report on the dead bodies of Ram Saran and Sudershan (Ext. Ka-4 and Ka-5 ). He prepared the photonash of Ram Saran and Sudershan (Ext. Ka 7 and Ka-ll-B) and then prepared challan nash (Ext. Ka-6 and Ka-ll-A ). A letter of request was written for post-mortem examination which was per formed by P. W. 5 Dr. P. K. Shrama on 3. 6. 1981 at 10 a. m. and 11 a. m. respectively. The Investigating Officer also collected blood stained earth and simple earth, blood stained chaff and simple chaff and also prepared site plan, Ext. Ka-11.;