- (1.) AMAR Saran, J. Three appellants Randhir, Ram Babu and Chidda have preferred this criminal appeal against the judgment and order dated 20-11-1980 passed by the VIth Additional Sessions Judge, Agra convicting and sentencing the appellants to undergo imprisonment for life under Sections 302/149 IPC five years rigorous imprisonment under Sections 307/149 IPC and two years rigorous imprisonment under Section 147 IPC. However, all the sentences were to run concurrently.
(2.) AS Randhir and Ram Babu have died, hence the appeal against them has abated by order of this Court dated 4-2-2004. Two other persons Lakhpat and Munshi who were also accused in the initial report had been killed in a police encounter, and did not face trial in this case. Hence only the appeal of Chidda survives. Heard Shri A. N. Mishra, learned Counsel for the appellant and Shri S. S. Yadav, learned Additional Government advocate representing the State. In brief, the case of the prosecution was that around the midnight of 4/5-12-1979, the appellant Chidda, Randhir, Ram Babu, Lakhpat, Munshi and four unknown miscreants arrived at the house of Moti Lal and shouted for Moti Lal to come out as Daroga Ji was standing outside. On hearing the cries, the informant Moti Lal rushed to the proof of his house and flashed his torch recognizing the accused persons named above and raised a cry. After that he jumped from his roof for gathering the villagers. After his departure, the miscreants cut open the door with an axe and entered the house. When his father Gulzari tried to rise up from the cot, on which he was lying, the miscreants fired at him, causing his death. A lantern was burning inside the house and after entering the house, the miscreants again fired resulting in injuries to the informant's wife Smt. Shanti. Inside the house, Lakhpat cried out that Moti has run away on that day, but how long would he escape and that they would kill both the brothers, i. e. Moti Lal and Sarnam. Old enmity of the informant with Lakhpat and Randhir is said to be the motive for the incident because in an earlier case conviction of 4-5 years had been secured of Randhir and his brother Moonga. Randhir and Moonga had absconded and they suspected that informant and his brother Sarnam used to give information to the police about their whereabouts. As a result of the hue and cry having been raised, Rameshwar, Meva Ram and other persons of the village gathered with lathies and axes. The accused Lakhpat was armed with a gun, whereas the other accused were armed with lathies, axes and country made pistols. The report of this case was lodged against five named accused persons and four unknown accused persons by the informant at 8. 30 a. m. on 5-12-1979 (Ext. Ka-15) at police station, Jaipur, district Agra, which was 12 miles from the informant village Dassu Ka Purva.
(3.) THE report was lodged in the presence of PW 4 SI Sarwan Singh Yadav, SO, who immediately took up the investigation of this case. He went to the village alongwith the information accompanied by SI Brij Mohan Udenia, who conducted inquest on the body of Gulzari (Ext. Ka-8) and whose writing was proved by SI Sarwan Singh Yadav. SI Sarwan Singh Yadav also recorded the statements of Moti Lal, Ram Shanker, Meghnath, Smt. Shanti, Smt. Kalawati and other witnesses. After investigation the spot, he prepared site plan, sealed the dead body and thereafter handed over the sealed dead body to constables Rati Ram and Harpal Singh for taking it for post-mortem. He also got prepared photo lash, (Ext. Ka-10), Challan Lash (Ext. Ka-11), letter for R. I. (Ext. Ka-12) through SI Brij Mohan Udenia. From the spot, the blood stained clothes of the deceased were taken into possession by S. I. Brij Mohan Udenia, which were sealed vide Ext. Ka- 13. S. I. Sarwan Singh Yadav, PW 5, can took some pellets from the spot and prepared the recovery memo (Ext. Ka-4 ). He examined the torch, Dibia and lantern of Moti and the memo in respect thereof (Ext. Ka-3) was prepared. He took a piece of the door of the house of Moti in possession and prepared its memo as Ext. Ka- 5. He also examined inquest witnesses Ram Shanker etc. Pw 3 Dr. K. N. Sharma, who was posted as Medical Officer, PHC, BAH, district Agra, conducted medical examination of the injuries of Smt. Shanti, wife of Moti Lal on 6-12-1979 at 11. 00 a. m. He found the following injuries on her person: " (1) Abrasion 9/10 cm x 3/10 cm on left forehead, oblique, crest present (1-1/2 cm above left eyebrow ). (2) Abrasion 2 cm x 3/10 cm on left forehead, oblique, crest present (1-1/2 cm away from injury No. 1 ). (3) Abrasion 1/2 cm x 1/4 cm on right orbital region, oblique, crest present (1/2 cm below the outer angle of right eye ). (4) Abrasion 1/2 cm x 2/10 cm on right lower eyelid, oblique, crest present (outer half ). (5) Abrasion 4/10 cm x 2/10 cm on the right face, oblique, crest present (1 cm below injury No. 3 ).;