- (1.) AMAR Saran, J. This Criminal Appeal arises from a judgment and order dated 1-9-1981, passed by the IVth Additional Sessions Judge, Agra in Sessions Trial No. 429 of 1980, whereby the appellants Mathura Prasad, Bhagwan Singh alias Dhurra, Ashok, Kamla alias Kamal Singh, Ramesh, Jamuna Das and Shripal had been convicted and sentenced to undergo imprisonment for life under Section 302/149 IPC. The appellants, Jamuna Das, Bhagwan Singh, Mathura Prasad, Ramesh, Kamal Singh and Ashok had further been convicted under Section 148 IPC and sentenced to two years' rigorous imprisonment and a fine of Rs. 500 each, and in default, to further undergo rigorous imprisonment for a period of six months each. The appellant, Shripal had been convicted under Section 147 IPC and sentenced to one year's rigorous imprisonment and an additional fine of Rs. 500 and, in default of payment of fine, he was to undergo rigorous imprisonment for a period of six months. The sentences were to run concurrently.
(2.) WE have heard Shri P. N. Mishra, senior Counsel, assisted by Shri Nasiruzzaman and Shri Rakesh Chandra, (who appeared with him for appellants Bhagwan Singh, Kamal Singh and Ashok ). WE have also heard the learned AGA for the State. WE have perused the judgment of the trial Court and also the entire evidence on record. As the appellant No. 1 Jamuna Das, appellant No. 4 Ramesh and appellant No. 7 Shripal have died during the pendency of this Criminal Appeal, hence, their appeal has already abated by order of this Hon'ble Court dated 19-11-2003. The prosecution case was that the deceased Mohd. Umar, the informant Majjo PW 1, who is also an eye-witness, Ajjo PW 3 and Rashid PW 5, the other two eye-witnesses, were returning from a cattle fair in Kundol and proceeding towards their residence in Mohalla Pakki Sarai, PS Tajganj, District Agra on 18- 6-1980. The deceased and the witnesses had disembarked from the track, which had carried them from Kundol at the nursery near Basai, and at the fateful time, they were walking towards their homes. A little ahead of the Gobar Chauki crossing, en route to Pakki Sarai, at about 6. 30 p. m. the deceased and the witnesses were accosted by the accused Jamuna Das and Ramesh residents of Gobar Chauki, Kamla, Shripal, Dhurra, Ashok residents of Bagrajpur and Mathura Prasad resident of Anand Nagar. The accused Jamuina Das, and Ashok were armed with ranpis (weapons used for cutting leather), the accused Kamla, Mathura Prasad and Dhurra were armed with chura (daggers), the accused Ramesh, was armed with a knife and the accused Shripal carried a lathi. The accused Jamuna Das is said to have cried out on seeing the deceased and the witnesses that all these 'salas' are 'kasais' of Pakki Sarai and they should be surrounded and beaten. Thereupon, all the seven accused persons fell upon the party of the deceased. The witnesses ran away from the spot, however, the accused succeeded in surrounding and catching hold of the deceased Mohd. Umar and they began to assault him. The witnesses reached their village, and on their alarm, other villagers arrived who were told about this incident. On return to the spot with the villagers, they found Mohd. Umar lying dead there in a pool of blood. Majjo PW 1, thereafter, proceeded to the Police Station for lodging the report, whilst the villagers remained with the dead body. The report of this incident (Ex. Ka-1) was lodged as aforesaid by Majjo at P. S. Tajganj, Agra on 18-6-1980 at about 8. 00 p. m. and on that basis, a case at crime No. 176 under Sections 147, 148, 302 and 149 IPC was registered against the accused persons, by HC Arjun Singh, PW 4 in the absence of the investigating officer, PW 6, SI Rangla Yadav. According to PW 6, SI Ranglal Yadav, he was already present at Pakki Sarai in connection with investigation of another case at Case Crime No. 175 of 1980 alongwith the SHO, where the C. C. Chandrabhan brought him the papers of this case for commencing with the investigation. He thereafter, proceeded to the place of incident of the present case, prepared the inquest (Ext. Ka-11), Khaka Nash (Ext. Ka-12) and Challan Nash (Ext. Ka-13) with the help of a petromax light. He sent the dead body after sealing it for post- mortem through Constables Ram Laraite Mishra and Keshav Prasad for post-mortem at the District Hospital, Agra, alongwith the letters for post-mortem (Exts. Ka-14, Ka-15 and Ka-16 ). He also collected blood stained and plain earth from the place of incident and sealed them separately, and prepared a Fard (Ext. Ka-17 ). A 'potli' with some food items was lying near the dead body, which was given in the custody of Babu, the deceased's elder brother. Its Fard is marked as Ext. Ka-18. Majjo PW 1's statement was recorded at the spot. Due to dearth of light, as the petromax was not functioning properly, hence, the site plan (Ext. Ka-19) was prepared the next day, i. e. on 19-6-1980 on the pointing out of the informant. The chemical examiner and serologist's reports have been received which were marked Ext. Ka-20 and Ext. Ka-21. After completion of investigation, PW 6 submitted a charge-sheet on 2-7-1980. (Ext. Ka-22 ). The case was committed to the Court of Sessions by the CJM, Agra on 8-8-1980.
(3.) CHARGES under Sections 148, 302, 149 IPC were framed against accused Mathura Prasad, Dhurra @ Bhagwan Singh, Kamla @ Kamal Singh, Ashok, Ramesh and Jamuna Das, and a charge under Sections 147, 302, 149 was framed against accused Shripal. The plea of all the accused was denial. All the accused pleaded not guilty to the charge, they stated that they had been falsely, implicated due to enmity and claimed trial. Accused Mathura Prasad has also pleaded alibi, and claimed to be present in a meeting of the Ministerial Staff Association of the S. N. Medical College where he worked as a clerk at the time of incident. The appellant, Kamal Singh, further asserted that on the date of occurrence, i. e. on 18-6-1980 at about 4. 00 p. m. he had gone to lodge a report at P. S. Tajganj as his elder brother, Pratap Singh Jatav was stabbed by one Bengali Musalman and he returned from the police station only at 9. 00 or 9. 30 p. m. on that day. The accused have even filed a copy of the G. D. Report No. 44, dated 18-6-1980 regarding registration of the case at Case Crime No. 175. (Ext. Kha-1 ).;