VINOD PRASAD, J. - (1.) APPELLANT Onkar has filed instant appeal challenging his conviction under section 394/397 IPC and imposed sentence of seven years RI therefor passed by Ilnd Additional Session's Judge, Badaun in S.T. No. 358. of 1979, State v. Onkar, vide impugned judgment and order dated 9.2.1981.
(2.) UNFOLDED prosecution allegations against the appellant, as was scribed by Kishori Singh, at the dictation of informant Nattho Lal, PW-1, in written F.I.R. Ex. Ka.1, were that on 14.8.1977 informant Nattho Lal P.W.1 along with his maternal uncle Itwari and Sohan Pal were returning to their house from Gauri Shanker Festival, which was organized near village Aonla in District Bareilly and when they reached near culvert No. 2 in village Katya, at a distance of one and a quarter miles from village Bichaula under police circle Ujhani at 8 pm, they saw three persons sitting on the culvert. One of the miscreants pointed his country made pistol at them and asked them to hand over their entire properties otherwise they will be shot at. PW-1 flashed his torch on the miscreants, on which one of the robbers brandished his country made pistol and instigated his associates to assault the Informant and his associates on which second robber assaulted P.W.1 with knife and the third one started belaboring Sohanpal and Itwari with Lathi. Informant and his associates with folded hands requested to spare them and take whatever they want. On this, miscreants robbed them of their wrist watch, Saree, cash money, other apparels and towels etc. Being terrorised, Itwari sprinted from the spot and was chased by two robbers but could not be apprehended. One of the robbers wielding country made pistol remained with the informant and Sohanpal. He asked the informant to disclose what ever is left with him on which informant replied that he had a change of one rupee. While handing over the change to the said robber, informant and Sohanpal snatched away the country made pistol with a cartridge embedded in it's barrel and pushed the said robber on the ground and assaulted him with the butt of country made pistol and Danda. On his shrieks, other two miscreants rushed towards the informant and Sohanpal but they were threatened by the informant that they have snatched away the country made pistol and cartridge and that they have annihilated their associate and if they will make any misadventure, they will also be done to death. On this, the other two miscreants ran away from the spot, but they were clearly identified by the informant and other witnesses. The apprehended accused disclosed his identity as Onkar, the present appellant. While apprehended accused was being brought to the police out post Majhauli, a head constable along with other police persons met the informant and witnesses in the way and with their help, the apprehended accused was brought to the police station. In the way, informant Nattho Lal had dictated F.I.R., Ex. ka.-1, to Kishori Singh who had scribed it and after reaching the police station, it was lodged the same day at 9:30 p.m., after one and half hours of the incident, which was registered for offence under section 394 IPC at P.S. Sahswan, District Badaun. Head Constable Rameshwar Dayal Sharma, PW-8 had registered the crime and prepared chik F.I.R. Ex. Ka-9 and corresponding G.D. Entry Ex. Ka- 10. He had also prepared the recovery memo of the country made pistol and cartridge along with blood stained apparel of the informant by preparing Ex. Ka-2 and 3. S.O. Prem Shanker Sharma, PW- 6 commenced investigation into the crime, interrogated informant and other two witnesses Sohanpal and Itwari and thereafter interrogated appellant Onkar. Following usual investigatory steps PW- 6 came to the spot and prepared site- plan map Ex. Ka-11. Thereafter, investigation was transferred to P.S. Ujhani, as the crime was committed within it's jurisdiction. S.I Gauri Singh, PW-7 of P.S. Ujhani commenced further investigation and concluding it had charge-sheeted the appellant on 21.9.1977 vide Ex. Ka- 12.
(3.) INFORMANT, injured and apprehended accused Onkar were medically examined on the date of the incident at 10:05, 10:25, 10:50 and 1:15 pm vide Ex. Ka. 4,5, 6 and 7. Following injuries were noted by the doctor on their persons:- "Ex. Ka.-4 Examined Sri Nathoo Lal aged about thirty years S/o Naubat Singh R/s Chaturi Nagla village Khukhunia Jo Jo P.S. Ujhani Distt. Budaun on 14.8.1977 at 10.05 p.m. (Night) brough by CP. 239 Shiv Kumar of P.S. Saharwan. M.I.: 1. Old scar 1 1/2 cm x 1/4 cm on outher side Lt. Eye 1 cm. Away from Lt. Eye. Injuries: 1. Incised wound 3/4 cm x 1/3 cm x 1/2 cm Deep on left shoulder joint back upper third portion. Injury is simple and has been caused by some sharp edged weapon. Duration of injury is fresh. Ex. Ka.5 Examined Shri Itwari Lal aged about twenty five years S/o Khem karan R/s Dharampur P.S. Ujhani Distt. Budaun on 14.8.77 at 10.25 P.M. (Night) brought by CP. 239 Shiv Kumar of P.S. Sahaswas. Mi.:-Mole on left side chest 3-1/2 cm. Below Lt clevicle. Injuries:- 1. Incised wound 1 cm x 1/4 cm x 1/2 cm deep oblique on right side forehead extending from inner third of Rt. Eye brow. Injury is simple and has been caused by some sharp edged weapon. Duration of injury is fresh. 2. Contusion 3-1/2 cm x 2 cm oblique on back of left forearm 7 cm. Above left wrist joint. Odema present at the site of injury. Suspected fracture of underlying bone. Advised X. Ray left forearm for confirmation of fracture injuries has been caused by hard blunt weapon. Duration of injury is fresh. Ex. Ka. 6 Examined Shri Sohan Pal aged about twenty two years S/o Shri Sardar Singh R/o Bagula Nagla P.S. Ujhani Distt. Budaun on 14.8.77 at 10.50 P.M. (Night) brought by CP. 239 Shiv Kumar of P.S. Sahaswan. MI:- 1. Mole on right shoulder middle back. Injuries: 1. Contusion 3 cm x 2 cm oblique on outer side of back left forearm 5 cm below elbow joint. Injury is simple and has been caused by some hard blunt object. Duration is fresh. Ex. Ka. 7 Examined Shri Onkar aged about twenty five years S/o Sri Hem Raj R/o Naithua P.S. Bilsi Distt. Budaun on 14.8.77 at 11.15 P.M. (Night) brought by CP. 160 Rajveer Singh of P.S. Shaswan. M.I.:- Mole on right side chest 7 cm. Below outer third of Rt. Clevicle. 2. Mole on right side front outer side Rt. Arm 121/2 cm below Rt. Shoulder joint. Injuries :- 1. Lacerated wound 1-1/2 cm x 1/4 cm x muscle deep verticle 11 cm above Rt. Ear. 2. Lacerated wound 2 cm x 1/4 cm x muscle deep 1-1/2 cm below injury No. 1. 3. Lacerated wound 1 cm. x 1/4 cm x muscle deep on right prominance of the face. 4. Contusion 3-1/2 cm. 1 cm. Horizontal on right side face 1/2 cm below Rt. Lower lid. 5. Abrasion 1-1/2 cm x 1/2 on left side face 3-1/2 cm. Below left side face prominance. 6. Contusion 5 cm x 2 cm horizontal on front of left arm 26 cm. Below left shoulder joint. Odema present at the side of injury Suspected fracture of underlying bone. 7. Contusion 3-1/2 cm x 2 cm with abrasion middle 1/2 x 1/4 cm. On back of left forearm 9 cm. Below left elbow joint. 8. Contusion 3 cm. x 1-1/2 cm Horizontal on back of left forearm 7 cm. Above left wrist joint. 9. Contusion 3 cm. x 1-1/2 cm oblique on lower part left thigh 5 cm. Above left knee joint. 10. Contusion 3-1/2. cm x 1-1/2 cm oblique on left thigh 3 cm. Below injury No. 9. 11. Contusion 7 cm x 2 cm. Oblique on outer side left leg 19 cm. Below Lt. Knee joint. All injuries are simple except Nos. 6 & 7 for which X-Ray is advised for confirmation of fracture. All injuries have been caused by hard blunt weapon. Duration of all injuries is fresh." Charge-sheeting of the accused resulted in his summoning and finding his case triable by the Session's Court, it was committed to the Court of Session's for trial where it was registered as S.T. No. 358 of 1979, State v. Onkar on 8.10.1979.;