- (1.) THE appellants ­ Babu Ram, Jayanti Prasad and Vijay Pal were charge-sheeted and stood trial for having attempted to commit the murder of one Nahar Singh, the injured and were accordingly called upon to answer their charges. They were found guilty as the injured had sustained fire arm injuries and accordingly the appellants ­ Babu Ram and Jayanti Prasad were convicted under Section 307 IPC with a sentence of 5 years R.I. to each of them and the appellant No.3 ­ Vijay Pal under Section 307 read with Section 34 IPC with the same sentence of 5 years R.I. The incident is reported to have occurred at about 12.00 midnight between 21st and 22nd January, 1980 when according to the First Information Report the injured Nahar Singh was sleeping along with his brother Suresh Pal Singh in a Verandah. The F.I.R. Narrates that a lighted lantern was hung in the Verandah when at about 12.00 midnight street dogs started barking that woke up the sleeping brothers. At the time of the incident, the servant of the informant Nasir is also alleged to have woken up, who had witnessed the occurrence. According to the recital in the F.I.R., the appellant ­ Babu Ram was armed with a country-made pistol and the appellant No.2 ­ Jayanti Prasad was armed with a shotgun they fired 2 shots on the exhortation of the third appellant ­ Vijay Pal, who was armed with a "Pharsa" which is a sharp edged weapon. It is alleged that Vijay Pal, who was armed with a Pharsa, exhorted that Nahar Singh purchases a lot of land in the village and, therefore, he should be killed, upon which, the shots were fired that resulted in injuries on the legs of Nahar Singh.
(2.) ON the hue and cry that arose neighbours namely Ram Prasad and Karan Singh ran to the scene with their torches, who also saw the said incident. The F.I.R. was lodged the following day with the Police Station Jalesar, district ­ Etah, which is stated to be about 6 miles North from the place of incident. After the lodging of the F.I.R., the injuries sustained by Nahar Singh were examined by Dr. R.S. Pratihar ­ PW1 and it was reported that one multiple gunshot wound and two fire arm wounds were found which are as follows:- "1. Multiple gunshot wounds in area 9 cm x 5 cm on medial and slightly back of Rt. Leg 9.5 cm above the medial maleolus - size superficial to 2 cm deep and ¼ cm x ¼ cm to 1 1/2 x ¾ cm blackening round the wound see. No wound of exit seen. Advised for X-ray Rt. Leg. 2. Firearm wound 3 cm x 2 1/2 cm x 1 cm deep in front the left leg 15 cm below the left patella, blackening round the wound seen, no wound of exit seen, advise for X-ray. 3. Firearm wound 9.5 cm x 5 cm x 1 1/2 cm deep on left leg below and medial to injury No.2, blackening round the wound seen, no wound of exit seen, underlying bone seems to be fractured. Advise for X- ray left leg. Nature of injury No.1 and 2 simple. Injury No.3 U.O. Duration about - 1/2 day. Weapon fire arm wound." The third injury as noted above also suspected fracture and an X-Ray was advised. The nature of the injury nos. 1 and 2 was stated to be simple. No X-ray report is available or was relied upon by the prosecution. It is to be noted that some blood stained earth and sample was taken from the spot and sealed but no weapon was recovered. The placement of the lantern and the use of a torch for the purpose of light was also noted during investigation where after the accused were charge-sheeted. The prosecution examined 6 witnesses including Suresh Pal Singh- PW2 brother of injured Nahar Singh, Nahar Singh the injured as PW-3, Nasir another eye-witness as referred to in the F.I.R. as PW-4 and 2 formal witnesses, the police constable Mr. Gulam Nabi PW-5 and the Investigating Officer Sobaran Singh as PW-6. The statement of the appellants were recorded on 9.11.1981 under Section 313 Cr.P.C. where after the trial proceeded and on the evidence adduced, all the appellants were convicted. The trial court on the basis of the fire arm injury and the testimony of the witnesses convicted all 3 appellants, the appellant Nos. 1 and 2 for having committed the offence under Section 307 IPC and the appellant No.3 ­ Vijay Pal for the same offence read with Section 34 IPC. During the pendency of the appeal, a report was submitted by the Chief Judicial Magistrate, Etah, dated 13.8.2007 to secure the presence of the appellants and it was found that the appellant No.1 ­ Babu Ram, the father of the appellant No.2 ­ Jayanti Prasad, has been murdered on 22.6.1982. Accordingly, the appeal against appellant No.1 stands abated.
(3.) SRI A.B.L. Gaur and Sri J.S. Pandey have appeared for the appellant No.2 and the appellant No.3. An application has been filed by Dr. Akhilesh Kumar Sharma, Advocate, on behalf of the heirs of Late Nahar Singh - the injured, who also appears to have died during the pendency of the appeal. A request was made to the Court that the matter be allowed to be compromised after recording a finding that the offence does not travel beyond Section 324 IPC which is compoundable and that the heirs of Late Nahar Singh are now peacefully residing with the appellant No.2 ­ Jayanti Prasad with no grudge against the third appellant ­ Vijay Pal. The prayer made is, therefore, to allow the appeal or pass such other orders so as to bring a quietus between the parties. Sri A.B.L. Gaur has commenced his arguments by contending that there was more than 7 to 8 hours of delay in lodging of the F.I.R. for which there is no valid explanation. His argument has commenced with the reading of the F.I.R., the statement of the injured and the other prosecution witnesses to urge that this was a simple case of hit and run with no independent witnesses to identify the assailants and that this raises a very strong probability to record the acquittal of the appellants. He submits that the range of the firing as alleged with blackening and tattooing of the injuries also does not establish the shots having been fired at least from a gun which the appellant No.2 is alleged to have used as a weapon. His submission is that it is not possible to sustain such an injury at such a close range from a gun. He submits that no fire arms have been recovered and in the absence of any such recovery or any charge having been framed in this regard, the entire prosecution story has to fall through.;