- (1.) THIS is an appeal from judgment and order dated 17th of February, 1981 passed by Sri Bramha Kishore II Additional Sessions Judge, Agra in Sessions Trial No. 423 of 1978, State v. Shanti Swarup & Others, convicting accused Shanti Swarup under Sections 148 and 302 IPC and sentencing him to one year's rigorous imprisonment and imprisonment for life respectively thereunder and rest of the accused namely Prakash Chandra alias Pikka, Ram Rakshpal, Rajesh alias Raju and Ashok Kumar under Sections 147 IPC and Section 302 read with Section 149 IPC and sentencing each of them to six months' rigorous imprisonment and imprisonment for life respectively thereunder making both the sentences to run concurrently.
(2.) SINCE accused Shanti Swarup, Prakash Chandra alias Pikka, Ram Rakshpal and Rajesh alias Raju were reported having died their appeal stood abated. Now the only surviving appellant is Ashok Kumar. Brief facts giving rise to this appeal are that at about 11:00 p. m. on 20th of June 1977 Sushil Kumar lodged an FIR at police station Firozabad (North) District Agra that at about 9:00 p. m. on 20th of June, 1977 he alongwith his brother Sudhir Kumar alias Siddhu and Sunil Kumar were going to the temple situate at Mohalla Arya Nagar and as they reached near the shop of Nathhi Halwai Shanti Swarup, Ashok Kumar, Prakash Chandra alias Pikka, Ram Rakshpal and Rajesh alias Raju son of Siya Ram alongwith 3-4 others coming from the front, shouted that they had supported Janta Party and had prevented their supporters from casting votes in the Elections and now they would teach them a lesson and immediately Ashok Kumar and Prakash Chandra alias Pikka caught hold of Sudhir Kumar and at the exhortation of Ram Rakshpal that he should be killed his son Shanti Swarup gave knife blow to him and sustaining the fatal injury Sudhir Kumar fell down and then 2-3 persons accompanying them gave him blows with butt of the guns. On the hue and cry raised by Sushil Kumar one Ram Kishore, Sukhbasi, Kallan and others standing nearby asked the miscreants as to why they were beating him and then Ram Rakshpal who was holding a pistol threatened that they would be shot dead. The persons present there got frightened and left the scene of occurrence. Sunil Kumar shrouded himself in a shop of toffee, biscuits etc. situate nearby. The miscreants took injured Sudhir Kumar dragging him towards their house. The said incident was witnessed by the witnesses in the electric light lighted there. Soon thereafter injured Sudhir Kumar was taken by his brothers. Sushil and Sunil to the Hospital in a rickshaw but by the time they reached the Hospital Sudhir Kumar succumbed to the fatal injuries sustained by him in the said incident. The police registered a crime against the accused on the basis of the written report accordingly and made relevant entry regarding registration of the crime in the general diary (Exts Ka 7 and Ka 12 ). SI C P Dube to whom investigation of the crime was entrusted visited the scene of occurrence and prepared its site plan map (Ext. Ka 2 ). He also collected blood stained and simple earth from the scene of occurrence and prepared their recovery memo (Ext Ka 4 ). He also recorded statements of the witnesses. It appears that the next morning inquest proceedings were drawn on the dead body of Sudhir Kumar and dead body of the deceased in a sealed cover along with necessary papers was handed over to the police constables for being taken to the mortuary for its post mortem. Autopsy on the dead body of Sudhir Kumar was conducted by Dr. S. N. Dubey Medical Officer S. N. M. Hospital Firozabad on 21st of June 1977 at about 10:00 a. m. Autopsy conducted on the dead body revealed one ante mortem lacerated wound scalp deep on left side of head and two ante mortem abraded contusions one on the back of right forearm and the other on left side back lower one third. It also revealed one ante mortem stab wound 3 cm x 2 cm x abdominal cavity deep directing backwards and upwards and two ante mortem incised wounds one 7 cm x 3 cm x thoracic cavity deep on back upper part in between the two scapula at the mid line right side and another 6 cm x 1 cm x muscle deep on left gluteal region lower part. On an internal examination brain was found congested and right pleura ruptured and left pleura punctured. Peritoneum was also found punctured and large intestines and right kidney lacerated. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about half a day ago.
(3.) AFTER completing the investigation the police submitted charge sheet against the accused. The accused pleaded not guilty stating that they were got implicated in the case falsely. Accused Rajesh alias Raju son of Siya Ram stated in his statement recorded under Section 313 of the Code of Criminal Procedure that at about 9:00 p. m. the alleged night he alongwith his sisters was returning back from the market and as they reached near the shop of Natthi Halwai Sunil Kumar and Kaliya met them and started passing indecent remarks on his sisters by way of eve teasing and as he asked them not to persist in the wrong Sunil Kumar gave him a knife blow and then he caused hold of Sunil Kumar and snatched the knife from him; that in the meanwhile his sisters went to their house and immediately Ram Narain and Rajesh Kumar came to the scene of occurrence and in the meanwhile Sudhir Kumar alias Siddhu also reached the scene of occurrence and he gave knife blows to Ram Narain and Rajesh Kumar and that then Rajesh Kumar took the knife from him which he had snatched from Sunil Kumar and gave knife blows to Sudhir Kumar in his self-defence and in their defence and that thereafter Ram Narain, Rajesh Kumar and he got themselves medically examined at the Hospital the same night and an FIR was also lodged at the police station against Sunil and others. Accused Ashok Kumar also stated in his statement recorded under Section 313 of the Code of Criminal Procedure that Sudhir Kumar was extended from the district for a period of six months under the U. P. Control of Goondas Act and in that case his father Ram Gopal stood a surety for him but Sudhir Kumar was not prepared to remain out of the district and on that account his father had asked Sudhir Kumar that since his surety bond might be forfeited as he was not going out of the district he would inform the police and that on that very account he was got implicated in the case falsely.;