- (1.) THIS criminal appeal filed by the appellant Thakur Das is directed against the judgment and order of the Additional District & Sessions Judge, Etah dated 28.03.1984 passed in Sessions Trial No. 332 of 1981; State vs. Thakur Das and others. In the judgment under appeal, the appellant Thakur Das has been convicted for an offence punishable under Section 302 I.P.C. and has been sentenced to life imprisonment.
(2.) THE case of the prosecution in short is that Moti Ram father of the informant Bhagwati Prasad resident of village BorraKhurd, under Police Circle Awagarh, was returning from his agricultural field on 19.03.1981 at around 6:00 p.m. towards his home. One Ganga Prasad s/o. Ishwari Prasad of the same village was similarly moving from the opposite directions towards his own field. When Moti Ram reached near the field of Jagdish Chandra, Thakur Das s/o. Ishwari Prasad who was armed with single barrel gun, Har Prasad s/o. Ishwari Prasad and Chandra Pal s/o. Khacheru, both of whom armed with country made pistol came out of the adjoining fields. At this juncture Ganga Prasad is stated to have exhorted to kill Moti Ram by opening fire upon him. Moti Ram is stated to have asked as to why the accused wants to do so and apprehending danger to his life, he turn around and started to run. At this point of time on the asking of the Ganga Prasad, Thakur Das opened fire from his single barrel gun. The gun shot hit Moti Ram at his back. He immediately fell down on the ground. All the accused ran away from the site. It was further stated that Ramvir Singh s/o. Mewa Ram and Man Singh s/o. Karan Singh, on hearing the aforesaid had reached the place of incident. Thereafter the injured Moti Ram was brought to the police station with the help of Ramvir Singh and Man Singh. The written report was lodged with the police station at about 8:30 p.m. the same day, on the basis whereof the First Information Report was prepared by Constable Clerk Fulwari Singh and an entry in the G.D. was also made at serial no. 27. The injured Moti Ram was sent to P.H.C. Awagarh on the same day at 8:45 p.m. Dr. K.K. Agrawal, Medical Officer/Incharge P.H.C. examined the injured Moti Ram. His injury report is marked as Exhibit Ka-2. According to the prosecution M.C.Sharma, Sub-Inspector (P.W.-8) Police Station Awagarh was present when the case was lodged. He reached P.H.C. where the statement of complainant Bhagwati Prasad and injured Moti Ram under Section 161 Cr.P.C. was recorded. The statement of Man Singh P.W.-2, Kali Charan and Nar Singh Pal was also recorded at the P.H.C. The attending doctor recommended Moti Ram for treatment to the District Hospital at Etah. At the District Hospital his condition was found to be serious and at 11:30 p.m., he was advised to be shifted to Agra for further treatment. Moti Ram along with one other patient was taken from District Hospital Etah in Ambulance on the way near village Tajapur he succumbed to his injury in the Ambulance at around 12:30 a.m. The dead body of Moti Ram was brought down from the Ambulance as the Ambulance had to proceed with the other patient to Agra. The same Ambulance returned from Agra at about 4:00 a.m. The dead body was brought to District Hospital at Etah by the complainant Bhagwati Prasad. The information of the death of Moti Ram was sent to Kotwali Etah by the Medical Officer of the District Hospital Etah through Sweeper Ram Niwas. The Constable Clerk Sada Behari made an entry in the G.D. at serial no. 9 at Kotwali Etah at 5:50 a.m. of the death of Moti Ram. On the basis of this information Shri Rama Shankar Sharma, Sub Inspector was instructed to prepare the inquest report who reached the District Hospital, Etah at about 6:00 a.m. He prepared photo-lash (Ext. Ka-5) and Challan lash as (Ext. Ka-6). He sealed the dead body and prepared a letter for M.O. Etah. The dead body was handed over to Constable Sarnam Singh for being carried to the mortuary. On 20.03.1981 at 11:40 a.m., Dr. R.P. Dixit (PW-4) the then Medical Officer, District Hospital, Etah performed autopsy and submitted his postmortem report (Ext. Ka-3). Investigating Officer reached the place of incident and prepared a site plan (Ext. Ka-14) of the place of occurrence at the pointing out by witness Mewa Ram. He also collected the earth with blood stains. Subsequently the investigation was taken over by Shri Parashar PW-5 of the police station and then investigation was transferred to Sri Ram Lal Verma, S.O. who completed the investigation and submitted the charge-sheet against the accused. The prosecution examined Bhagwati Prasad as PW-1 who was a witness of the occurrence and who proved his written report (Ext. Ka-1). Shri Man Singh another eye witness was examined as PW-2. Dr. K.K.Agrawal who had examined the injuries of Moti Ram for the first time was examined as PW-3. He proved injury report Ext. Ka-2. Dr. R.P. Dixit (PW-4) proved postmortem report (Ext. Ka-3). Shri R.K. Parashar, the second I.O. in the case was examined as PW-5. Shri Rama Shanker Sharma was examined as PW-6 who proved the inquest report, photo lash, challan lash, letter to M.O. as well as the letter sent to the R.I. and the copy of the G.D., Constable Clerk Fulwari Singh was examined as PW-7 who had proved the F.I.R. on the basis of the written report and the copy of the G.D. No. 27 (Ext. Ka 11). He also proved another copy of the G.D. No. 24 (Ext. Ka 12) amending the case under Sections 302 IPC after receiving the information of the death of Moti Ram. Copy of the statement of Moti Ram recorded by him in G.D. was proved by Shri M.C.Sharma, PW-8, the first investigating officer. He also proved site plan of the place of occurrence and the memos prepared by him as well as the charge-sheet given by the other Investigating Officer against the accused was also proved.
(3.) THE accused were examined under Section 313 Cr.P.C. They stated that they have been falsely implicated due to enmity and the statement made by witnesses were incorrect. In defence the accused produced Head Constable Badri Prasad as DW-1 who brought Crime Register of the year 1981 from the Police Station, Awagarh in support of the fact that the serial number of the G.D. was not properly maintained.;