- (1.) M. C. Jain, J. The State is in appeal against nine accused-respondents who have been acquitted by judgment dated 17-9-1980 passed by Sri A. B. Hajela the then III Addl. Sessions Judge, Etah in Sessions Trial No. 139 of 1980. Out of them, Military faced trial under Sections 148 and 302 IPC and the rest for the offences under Sections 148 and 302 read with Section 149 IPC. The deceased was one Deshraj. The incident occurred on 17-10-1979 at about 9 p. m. in village Kelta, PS Aliganj, District Etah and the report was lodged by Shishpal Singh (brother of the deceased) PW 1, the same night at 10 p. m. the distance of the police station from the place of occurrence being six miles.
(2.) THE relevant facts may be taken note of. THE accused-respondents Military, Natthu and Latoori are real brothers while the rest are said to be their friends and acquaintances. THE accused-respondent Roshan had a criminal background. As per suggestion made to Shishpal Singh PW 1 in his cross- examination, the deceased was an informant of the police and he too allegedly had criminal antecedents. Before the incident, the electric motor of one shepherd of village Harsari had allegedly been stolen by Military and Roshan but at the intervention of the deceased the same had been returned. On the fateful date and time, Deshraj was taking dinner not he Chabutra of his house. Upon the cots lying there, Shishpal PW 1, Nayab Singh PW 2, Mahendra PW 3 and Ramvir alias Jabbar Singh PW 6 were seated. A lantern was glowing at at that Chabutra as well as that of Kashi Ram on the front side. All the accused-respondents appeared there from the north of the street. Mahendra and Nekram had pistols whereas the rest were armed with guns. THE deceased looked back and enquired as to who there was. But the accused- respondent Military shot a five on him as a result of which he fell down from the wall in the street. THE accused-respondents ran away. The deceased then in an injured state, was taken to PHC Aliganj via police station where the FIR was lodged by Shishpal PW 1. The medical examination was conducted by Dr. G. C. Agarwal PW 9 at 10. 15 p. m. Apart from eight abrasions, fatal injury was in the form of seven gunshot wounds of entry in an area of 5 cm x 4 cm average size. 3/4 cm x 3/4 cm and one being larger in size 1 cm x 1 cm x (depth not probed) on middle back, 14 cm above upper border of hip bone. Margins were lacerated, inverted and ecchymosed. There was no blackening, tattooing or scorching. That injury was kept under observation and it was of firearm. It was fresh. After the fitness certificate Ext. Ka 17 given by the same Doctor, the dying declaration Ext. Ka-18 of the victim was also recorded in which named the culprits as Military, Nekram, Natthu and Roshan, besides one Peshkar and other Kesari's son. Because of serious condition of the injured he was taken to S. N. Hospital, Agra where he died on 18th October, 1979 at 12. 45 p. m. After the necessary formalities, the dead body was subjected to post-mortem which was conducted by Dr. S. C. Sharma PW 5 on 20-10-1979 at 5 p. m. The ante-mortem injury responsible for his death was of firearm which has been made mention of earlier. The investigation was conducted by Rama Shankar Sharma PW 8. The defence was of false implication owing to enmity and party faction of the village.
(3.) APART from the formal evidence including of medical and investigation aspects, the prosecution relied on the testimony of Shishpal Singh PW 1, Nayab Singh PW 2, Mahendra PW 3 and Ramveer PW 6 as eye- witnesses the incident as also on the dying declaration of the deceased. Learned trial Judge did not believe the prosecution evidence. According to him, there was contradiction in the dying declaration and the testimony of the witnesses as to time of the incident and as to where the victim actually was at the time of the incident as also about the particulars of the crime. All those named in the FIR and implicated by the eye-witnesses were not named by the victim himself in dying declaration. The learned trial Judge was of the view that the testimony of the eye- witnesses as also dying declaration were under cloud of doubt and could not be made basis for the conviction. He accordingly passed the impugned judgment which has been assailed by the State through this appeal.;