ANIL KUMAR SHARMA - (1.) IN both the aforesaid appeals the appellants have challenged the judgment and order dated 3.6.2003 passed by Addl. Sessions Judge, FTC-II, Jalaun at Orai in S.T. no. 117 of 2002 whereby each of the appellant had been convicted for the offence punishable u/s 148, 452, 302/149 Indian Penal Code and sentenced as under: i)u/s 148 IPC One year's R.I. and fine of Rs. 1,000/-. In default of payment of fine two months' simple imprisonment; ii)u/s 452 IPC Three years' RI and fine of Rs. 2,500/-. In default of payment of fine six months' simple imprisonment; and iii)u/s 302/149 IPC Imprisonment for life and fine of Rs. 20,000/-. However, each appellant had been acquitted u/s 147 IPC and DBBL gun of accused Ashok Tiwari had been confiscated to the State. Since both the appeals arise out of same incident, so they are being decided together.
(2.) FACTS of the case in nutshell are that complainant Ashok Kumar Kopra resident of Mohalla Malviya Nagar, Qasba and P.S. Konch District Jalaun at Orai submitted a written report at P.S. Konch on 27.4.2002 at 5.45 p.m. wherein he stated that they have got cases registered against their neighbour Ashok Kumar Tiwari s/o Ram Prakash Tiwari in P.S. Konch and P.S. Quarsi District Aligarh and on account of this fact he and his family members bear enmity with them. Today he along with Tara Chandra, Ravish Chandra, Smt. Ram Kali, Smt. Nirmala Namdeo arrived home from Jhansi, then at about 4.45 p. m. Ashok Tiwari along with his DBBL gun, Kamlesh Tiwari @ Munna Tiwari, Vinod Tiwari and Pradip Tiwari sons of Ram Prakash Tiwari residents of Mohalla Malviya Nagar Qasba and P.S. Konch along with Ram Sewak @ Daddhu Dhimal s/o Ram Swarup r/o Gokhle Nagar, Konch armed with country made pistols barged into his house. His mother was sweeping the court-yard and then Ashok Kumar Tiwari in order to kill her fired shots and she succumbed to the injuries at the spot. The accused also fired shots on them with intention to kill but they bolted the room from inside and accused persons abusing them made their escape good. The complainant got this report scribed from B.K. Johri s/o Pyare Lal r/o Pilkhana House, Sarai Lavaria P.S. Banna Devi Aligarh and submitted the same at 5.45 p.m. on 27.4.2002. On the basis of this report a case at crime no. 142/2002 u/s 147, 148, 453, 302 IPC was registered at P.S. Konch, investigation whereof was entrusted to SI Dinesh Kumar Singh. He reached at the spot recorded statement of complainant, prepared site plan and recovered pellets, tickli, bullet, simple and blood stained earth from the spot and a curtain containing bullet mark in presence of public witnesses through recovery memo Ex. Ka-6. After interrogating the complainant and the scribe he prepared inquest of the dead body of the deceased and along with usual papers sent the same for post-mortem examination. On 29.4.2002 Dr. Mani Ram PW 2 the then Medical Officer of CHC, Konch conducted autopsy and prepared notes thereof. He found rigor mortis over whole body and post-mortem staining on both thighs and lower part of back. He found the following ante-mortem injuries on the person of 60-years' old deceased: Ante mortem injuries: 1.Oval shaped fire arm wound of 13 cm x 5 cm present on dorsum of right hand laterally lateral part of right wrist joint and lower and later part of right fore-arm. Blackening seen near index finger and thumb. Metacarpal bone of thumb and lower end of radius found broken. Muscles are lacerated. Direction of wound is from below upward. Parts of (sic) found in wound. 2.Oval shaped 5 cm x 2 cm entrance wound present on right side of neck 1.5 cm behind the ear. Blackening seen around the wound. Edge of wound inverted. Wound is joining the exit wound. 3.Exit wound of fire arm 12 cm x 0.8 cm present on left side of neck. Margins inverted. Muscles lacerated and first and second cervical vertebra found broken. 4.Oval shaped entrance fire arm amount found on right side of chest 10 cm posterior to nipple in mid axillary line. Blackening seen at margins. Size of wound 4.5 cm x 4 cm . 4th and 5th ribs found broken. Direction of wound is from right to left. 5.Circular exit fire arm wound of 3 cm x 2 cm found on left of side of chest. 11 cm. posterior to left nipple and 7th rib was broken. Wound was joining the entrance wound. On internal examination the doctor found that 5th to 7th ribs of the deceased were broken. Thoracic wall, pleura, lower part of right lung, both lobes of liver, upper part of stomach, and gall bladder were lacerated. The stomach was empty and semi-digested food was found in small intestines while large intestines contained fecal matter and gases. The larynx, trachea, left lung, upper membrane of heart, oesophagus, pancreas, and spleen were pale due to lack of blood. In the opinion of the doctor, the deceased suffered homicidal death 12-24 hours before due to hemorrhage and shock as result of ante-mortem fire arm injuries. On 29.4.2002 the 1st investigating officer interrogated Smt. Nirmala Devi, Ravish Chandra, Smt. Archana Devi, Tara Chandra, Khem Chand, Sunita Devi, Virendra Vijay Kumar, Alkesh Kumar and Lal Bahadur. On 30.4.2002 the investigation of the case was taken over by Inspector Karan Singh. He made efforts to arrest the accused persons and tried to obtain police remand of Ashok Tiwari, which was refused. On 16.5.2002 he got the gun of Ashok Tiwari through Court which was sealed. Thereafter on his transfer the investigation was taken over by Inspector Ram Kripal singh PW 7 and on the basis of investigation carried out by earlier investigating officers, he submitted charge-sheet against the accused persons and also forwarded the report of Forensic Science Laboratory through supplementary case diary. After committal of the case to the Court of Session, the Addl. Sessions Judge (FTC-II) on 5.10.2002 framed charges for the offences punishable u/s 147, 148, 302/149, 452 IPC against all the accused, who abjured their guilt and claimed trial.
(3.) IN order to prove its case the prosecution had examined complainant Ashok Kumar Kopra PW 1, Dr. Mani Ram PW 2, Smt. Nirmala Namdeo PW 3, H.M. Ram Babu PW 4, 2nd I.O. Inspector Karan Singh PW 5, 1st I.O. SI Dinesh Kumar Singh PW 6, 3rd I.O. Inspector Ram Kirpal singh PW 7 and Constable Ram Hind Singh PW 8.;