- (1.) CHALLENGE in this appeal is to the judgment and order dated 27.07.1982 passed by Sri J. M. Srivastava, the then Special Judge, Lalitpur (U.P.D.A.A. Act) in S.T. No. 18 and 19 of 1979 (State Vs. Surendra Singh and others) and ST No. 23 of 1979 (State Vs. Veer Singh) whereby accused Tej Singh, had been convicted under sections 394/397 IPC, 307 IPC and Section 25 of Arms Act and sentenced to undergo seven years', five years and 6 -month' R.I. respectively and total fine of Rs. 200/ -with default stipulation. Appellant Vir Singh and other co -accused Surendra Singh (non -appellant) have been found guilty for the offence punishable u/s 394/397 IPC and sentenced to five years' rigorous imprisonment and fine of Rs. 100/ - each with default stipulation. Appellant No. 2 Vir Singh has expired during the pendency of the appeal.
(2.) SHORN of details, the prosecution story is that on 9.2.1979 at about 16:30 hours, the first informant Prabhu Dayal son of Har Prasad Yadav, r/o Jeron Khirak Mohalla, PS Prithvipur, District Teekamgarh (M.P.) lodged a report against the accused appellants alleging that today while he was going to hospital at Jhansi along with his bhabhi Parvati wife of Sobha Ram for treatment of her tooth along with his cousin Hallu son of Jarath, at about 11:00 AM, they reached at the Gurraiya Ghat of river Jamni, four miscreants came out from bushes. One was armed with gun, the other with axe and rest two miscreants were having Dandas. The miscreant armed with gun threatened Hallu to assault him with axe and other two miscreants started forcibly taking out silver ornament (Paijana) weighing about 1 kg. from the legs of the first informant's Bhabhi, worth Rs. 1600/ -. On alarm being raised, Asha Ram son of Parmanand Yadav of his village and Ram Sewak son of Manik, r/o Majra Kachar, P.S. Prithivipur, District - Teekamgarh who were bathing in the river came running and seeing them the miscreants took to their heels. It has been further alleged in the FIR that the first informant instructed his Bhabhi to return back and he with others present there chased the miscreants. The miscreants crossed the road near police Chowki at Ugrapur. On the Sukhwa Tukwa road they saw Bus registration No. U.P.I. - 2390 going towards Jhansi from Talbehat, then they shouted to catch up the running miscreants, the driver stopped the Bus. Chief Sahab namely Panna Lal of Chowki Pura and Gopeshwar Mishra, Van Rakshak got down from the Bus and joined them in chasing the miscreants. After covering some distance, one Hallu son of Behari Chamar, r/o Beharipura, and Natthu Ram of village - Sanauri, shouted from their well and chased the miscreants. At a distance of 200 paces, two miscreants were caught by them who disclosed their names as Surendra Singh son of Karan Singh Thakur r/o village Deli, P. S. Raksa, District - Jhansi and Mulayam Singh son of Bhuwani Singh Thakur, r/o vilalge Palinda, P.S. Raksa, District - Jhansi. At the same time, the other miscreant fired from his gun at Hallu who was injured but they again chased the miscreants and Tej Singh was caught by them with unlicensed single barrel country made gun. His friend Vir Singh Thakur resident of village - Batwaha, P. S. War ran away towards Dhaktosiya. On search before Chief Sahab Panna Lal and other witnesses, one danda each from two miscreants and a bag containing looted silver ornament (Paijana) of half kg. wrapped in cloth sheet from right hand of Mulayam Singh were recovered. The three miscreants along with looted article and the gun were taken to police station with the help of injured Hallu Chamar and Chief Sahab Panna Lal. On the basis of the report FIR Ex.Ka -10 on the day of incident i. e. 9.2.1979 the cases were registered at crime no. 15/79 u/s 394/397/412/307 IPC against all accused and a case at crime no. 16/79 was also registered against accused -appellant Tej Singh u/s 25 Arms Act. Memo (Ex.Ka -4) about handing over the silver paijana, gun and two dandas at the police station was prepared. Investigation of the case was entrusted to SI Lakhan Singh. He recorded the statements of witnesses and the accused persons, took the blood stained shirt of injured Hallu (Ex.ka -5) in his possession which had holes due to gun shots. The recovery memo indicates that from the possession of accused Mulayam Singh one broken danda (Ex. -2) and one looted paijana (Ex. -3) weighing half kg. worth Rs. 800/ - were recovered. Further, from the possession of accused Tej Singh (Ex. -4), the police recovered a gun, its barrel was hot and explosive smell was coming out and from the possession of accused Surendra Singh a danda (Ex. -5) was recovered. They disclosed the name of absconding miscreant as Vir Singh and also informed that he had taken the other silver ornament namely Paijana.
(3.) ON 9.2.1979, injured Hallu Lal Harijan and accused persons namely Tej Singh, Surendra Singh and Mulayam Singh (since dead) were sent for medical examination with constable Amar Singh to Primary Health Centre, Talbehat where Dr. H.N. Chaurasiya examined them and he found the injuries on their person: - Injuries of Hallu: - 1. Gunshot wound of entrance 1/2" x 1/4" x depth not prove on the anterior side of appear 1/3rd of left upper arm. Margin irregular, edges inverted eccomosed fresh bleeding present, No. tattooing, No Blackening . 2. Abrasion 1/4" x 1/4" on the front of right shoulder joint oozing present. Remark: Injury No. (1) is under observation, advised x -ray. Injury No. (2) is simple. Injury no. (2) caused by blunt object. Duration fresh, Injury No. (1) caused by gunshot. Injuries of Tej Singh: - 1. Two lacerated wound of 2" x 1/2", 1/2" x 1/4" x Bone deep on the right side of back of scalp just above the occipital protuberance. Margin irregular contused swollen, fresh bleeding present. 2. Lacerated wound 2" x 1/2" x bone deep on the right side of scalp just 1" front to injury no. (1). Margin irregular contused swollen. fresh blood coming out from wound. 3. Abraded contusion 1/2" x 1/4" on middle of upper lid of right eye. Red in colour. 4. Contusion with swelling 1 -1/2" x 1/1/2" on the right side of face just outer to angle of mouth. 5. Contusion with traumatic swelling 3" x 2 -1/2 on the outer side of upper 1/3rd of right forearm. 6. Multiple contusions of varying sizes 4" x 3", 3" x 3" and so an whole of back of chest and both shoulder region placed obliquely. 7. Lacerated wound 1/2" x 1/2" x muscle deep with traumatic swelling on the inner side of dorsum of hand bleeding present. 8. Two lacerated wound 1/2" x 1/4", 1/4" x 1/4" on the dorsum of left hand. Margin irregular contused swollen. Bleeding present. 9. Lacerated wound 1/2" x 1/4" on the back of index finger. Margin irregular, bleeding present. 10. Contusion with traumatic swelling 2" x 1" on the front of right leg redish. 11. Contusion 2" x 1" on the front of left knee joint colour reddish. Remark : - Injury No. (1) (2) and (6) are under observation, advised x -ray and rest of injuries are simple, caused by blunt weapon. Duration fresh. Injuries of Surendra Singh: - 1. Incised wound 1 -1/2" x 1/4" depth not prove with swelling in an area of 3" x 3" on the right side of scalp 2 -1/2" above the right ear margin clean cut, fresh bleeding present. 2. Abraded contusion with swelling in an area of 3"x2 -1/2" on the left side of whole for heard, red in colour. 3. Multiple contusion of 3"x1/1/2", 4"x3" an whole of back of chest and shoulder region both colour red. 4. Contusion 3"x1 -1/2" on the middle of left upper arm outer side obliquely blood red. 5. Contusion 2"x1" on front of upper 1/3rd of left leg colour red obliquely blood red. 6. Multiple abrasion of 1/2"x1/4" 1 -1/4" x 1/4" on the front of upper 1/3rd area of right leg. Remarks - Injury Nos. 1, 2, 3 under observation. Advised X -ray, rest of injuries are simple in nature. Injury No. 1 caused by sharp weapon, rest caused by blunt weapon. Duration fresh. Injuries of Mulayam Singh: - 1. Lacerated wound two of 1"x1/2" x Bone deep on the right side of scalp 3" above the right ear margin irregular contused swollen bleeding present. 2. Lacerated wound two 3/4"x1/4"x bone deep on the right side of fore head 3 -1/2' above the Rt. Eye brow margin irregular contused swollen bleeding present. 3. Lacerated wound with multiple Abraded contusion with swelling of 3"x3" and lacerated wound of 1"x1/4" x muscle deep on the Rt. Side of face and Nose just below the Rt. Eye. Bleeding present from nose. 4. Contusion with traumatic swelling of 2"x1' on wall of lower lip read in colour. 5. Contusion with traumatic swelling of 2 -1/2" x 2 -1/2" on the Rt. Side of face just at Rt. Angle of mandible. 6. Contusion with traumatic swelling 2 -1/2" x 2' on the Lt. side of face just at Lt. Angle of mandible, red in colour. 7. Contusion with traumatic swelling 1 -1/2" x 1 -1/2" on the back of scalp at occipital protubrance. 8. Multiple contusion with traumatic swelling in an area of 8"x 6" on whole of right side of back of chest. Colour redish. 9. Multiple abraded contusion of varying sizes in an area of 4"x 2" in upper half of Rt. Arm and Rt. Shoulder region. Colour red. 10. Contusion with swelling 2"x 2" on the dorsum of Rt. Hand inner side red. 11. Two contusions of 1 -1/2", 1"x1/2" on the back of Ltd. side chest, red. 12. Lacerated wound of 1"x1/4" not prove (depth) with swelling in an area of 3 -1/2" x 2" on back of middle of left forearm. 13. Abraded contusion 2 -1/2"x2" on the middle of front of Rt. Leg red in colour. 14. Abraded contusion 2"x1 -1/2" swelling on front of lower 1/3rd of left leg red in colour. 15. Contusion 1"x1" on the left side front of left thigh lower 1/3rd. 16. Contusion 3"x1" on the outer side of upper 1/3rd of Ltd. thigh. Remarks - Injuries No. 1, 2, 3, 7, 8, 12 were kept under observation and rest were simple in nature. All were caused by blunt weapon. Duration was fresh. The investigating officer S.I. Lakhan Singh, Chowki Sauhara Mau, P. S. Asauha, District - Unnao proceeded with the investigation of the case on 9.2.1979 and recorded statements of witnesses namely Prabhu Dayal (informant), Hallu Yadav, Asharam Yadav, Ram Sewak, Hallu Chamar, H.C. -6 Panna Lal and accused persons. Thereafter on 10.2.1979, the statements of Natthu Ram was also recorded. He inspected the spot, prepared the site plan and recorded the statement of Parwati. Sample of simple and blood stained earth was taken and sealed from the place where blood of witness Hallu Chamar had effused in two different containers through memo Ex.Ka -7 and Ex.Ka -8 respectively. The investigation culminated into charge -sheet against Tej Singh, Surendra Singh and Mulayam Singh under Sections 394/397 IPC. Tej Singh was also charge sheeted under Section 25 of Arms Act (Ex.Ka -16). Investigation against absconding accused Vir Singh was conducted by S.O. Sri Yuvaraj Prasad Shastri, who submitted charge sheet (Ex.Ka -17) against him after his test identification parade was conducted on 16.05.1979 by Sri Raj Bahadur Pathak, the then Sub Divisional Magistrate. He was identified by witnesses Prabhu Dayal, Asha Ram, Ram Sewak and Smt. Parwati.;