- (1.) M. C. Jain, J. Appellant Mulaim Singh has challenged the order of his conviction and sentence passed on 28-2-1989 by Sri P. P. Gupta, the then Sessions Judge, Aligarh in Sessions Trial No. 243 of 1986. He has been convicted under Section 302 I. P. C. and sentenced to life imprisonment. The arguments were advanced in part in the appeal on 31-1-2003 by Sri Gaffur Khan holding brief of Sri B. P. Singh, learned counsel for the appellant. However, on the next day viz. 3-2-2003 the case was adjourned to 11-2-2003 on his request. Again on 11-2-2003 also, a request was made on his behalf to adjourn the case for another two weeks. It was observed by us that the appeal being part heard, there was no justification to adjourn further hearing for the appellant, it was provided that he could give further submissions in writing within two weeks. The arguments of learned A. G. A. were heard. Despite lapse of two weeks, no further submissions came to be submitted by the learned counsel for the appellant. We, therefore, reserved the case for judgment on 27-2- 2003 and the appeal is now being decided on merits.
(2.) THE accused appellant was a P. A. C. Constable and committed murder of a fellow constable at 8 a. m. on 7-3-1986 at P. A. C. Camp within P. S. Bannadevi, District Aligarh. Company of P. A. C. XXVIII Battalion was posted at Aligarh to maintain law and order. Its camp was Exhibition Ground, Aligarh. On the fateful day, at about 8 a. m. , seven sections of the company were getting ready for duty. THE arms and ammunitions of the company were kept in the vacant shops No. 297 and 298 of the Exhibition Ground. Bhanu Pratap Singh Rathore PW 1 was Incharge Company Commander of the said Company. It was in his presence that the arms and ammunitions were being distributed amongst the constables who were to be sent on duty. THE deceased Constable No. 36823 Nehru Singh Yadav was adjusting chains in the rifles, which were to be given to the constables in the presence of Bhanu Pratap Singh Rathor PW 1. THE accused Constable No. 36764 Mulaim Singh Yadav was also given a rifle and after receiving the same, he came out. He, however, returned to the 'koth' (place where arms and ammunitions were kept) and fired on 'koth Munshi', namely, Constable Nehru Singh Yadav from behind who was adjusting chains. THE rifle from which he fired on Nehru Singh Yadav was of 303 bore bearing No. 637 Nehru Singh Yadav was hit on the back and fell down. Bhanu Pratap Singh Rathor PW 1, Constable Vidyapati Tripathi, Guard Commander Head Constable Shyam Singh, Constable Mahesh Chand, Constable Mahavir Singh and Durvijai Singh who were present there, saw the occurrence and overpowered the accused appellant Mulaim Singh. THE rifle and the belt containing cartridges were taken into possession from him. Constable Nehru Singh Yadav who was seriously injured was sent to M. S. Hospital, Aligarh through Constable Sobaran Singh where he succumbed to the injuries. THE written report of the incident was lodged by Incharge Company Commander Bhanu Pratap Singh Rathor PW 1 at 8. 55 a. m. on 7-3-1986 at P. S. Bannadevi. THE case was investigated resulting in submission of the charge-sheeted. THE trial was held culminating into the judgment assailed in this appeal. It may also be related here that the post-mortem over the dead body of the deceased was conducted by Dr. Rajiv Agrawal PW 4 on 7-3-1986 at 4. 35 p. m. He was aged about 42 years and about half day had passed since he died. The following ante-mortem injury was found on his person: 1. Gunshot wound of entry 1 cm x 1 cm on left side back of chest 2 cm out to mid line, 14 cm below to bone of neck, margins inverted and collar abraded continuing with gunshot wound of exit 5 cm x 3 cm on left side collar bone 3 cm out to sterno clavicular joint with external margins and abraded collar. No tattooing, charring and blackening seen, right clavicle bone fractured. The cause of death was shock and haemorrhage resulting from ante-mortem injury.
(3.) AT the trial, in all ten witnesses were examined. The defence was of denial and of false implication at the instance of Bhanu Pratap Singh Rathor PW 1. One Head Constable Dhani Ram was examined as DW 1. To begin with, in this case motive is not at all material. The reason is that in this case of broad day light murder, there is eye-witness account of three uninterested and independent witnesses, namely, Bhanu Pratap Singh Rathor PW 1, Head Constable Shyam Singh PW 2 and Constable Durvijai Singh PW 3, whose presence at the spot was natural and who have clinchingly proved the guilt of the accused, as would be clear from the discussion made hereunder.;