R. P. Shukla, J. - (1.) THIS appeal No. 1241 of 1977 has been preferred by the State of U. P. against the judgment and order, dated 24-3- 1977, passed by Sri R. K, Agarwal, the then Fourth Additional District and Sessions Judge, Saharanpur, in Criminal Sessions Trial no. 291 of 1976. The appeal against the acquittal of Jhabra in Sessions Trial No. 341 of 1976 has not been admitted. No notice was issued to him. It has thus been dismissed summarily. 2 Briefly stated the prosecution case is that a case under section 394, IPC was registered at Police-station Gangoh against respondent Noor Hasan and another. Noor Hasan is resident of village Pirmajra, Police Station Gangoh. On April 29, 1976 Mahesh Chandra. Panchabhaiya (PW 1) who was posted as Sub Inspector on the said police-station, took sufficient force from Police Station Gangoh and left the police station to effect the arrest of Noor Hasan in the said robbery case. The relevant entries of his departure (torn the police station were made in General Diary no. 27 and a copy of the same is Ext ka 1. On the way, the Sub Inspector collected witessss namely Maqsood (PW 2), Malkhan (PW 3) Bishambhar and others. Deceased constable Mahipal and constable Bishambai (PW 4) were also in the said party. At about 8.45 P. M. when this police party along with the witnesses reached near the culvert of village Dabri, they saw a group of four persons sitting on the culvert. It was a dark night of Amavashiya. The Sub Inspector flashed his torch at them and interrupted (Toka). On this, one of them fired at the police party. In reply, the Sub Inspector also fired two rounds from his revolver. Constable Mahipal and the Sub-Inspector were a little ahead of others of their party. The persons sitting on the culvert took to their heels after fire by the Sub Inspector, and constable Mahipal rushed to catch hold of them. One of them, who was some-what nearer to Mahipal, turned back and shot at Mahipal from a distance of two to three paces hitting Mahipal in the abdomen. The post mortem report reveals the following two injuries :- 1. Multiple gun shot wounds in an area of 25 x 1O cms in (L) iliac fossa with a central main lacerated, gun shot wound of 3 x 2 cms x abdominal cavity deep with balckening and charring around the wound present, central wound is 8 cms. away frorn unblicus at 2 O'clock position.
(2.) GUN shot wound 1/4 x 1/4 cm x muscle deep in the front and upper part of L. thigh. The face of Mahipal's assailant was seen in the torch light and was recognized before he could fire at Mahipal. Mahipal fell down after the receipt of the injuries, and the Sub Inspector and others succeeded in arresting the man, who fired at and hit Mahipal, after giving him some beating, The rest three, however, escaped. The arrested man gave out his name as Noor Hasan. He was searched and a country made pistol Ext. 1, used cartridge Ext. 2 and live cartridges (Exts 3 to 6) were recovered from him. These articles were taken in possession by the Sub Inspector and were put under sealed cover and a recovery memo (Ext. ka 2) was prepared on the spot. The Sub Inspector kept the cartridges used by him (Exts. 7 and 8) also in sealed cover and prepared memo (Ext. ka 3). Used cartridge (Ext. 2) was found inside the barrel of the country made pistol (Ext. 1) recovered from the possession of respondent Noor Hasan. Constable Mahipal was taken to hospital Gangoh, and while the medical examination was going on, he succumbed to the injuries he had received at the hands of Noor Hasan. Sub Inspector Panchbhiay and other police personnel thereafter went to Police Station Gangoh along with . respondent Noor Hasan. The Fir.it; Information Report (Ext. ka 4) was lodged at the police station by the Sub inspector and a case was registered on its basis vide general diary No. 33 at 10.4S P. M. Copy of the said General Diary is Ext. ka 5. Noor Hasan was then Jaken back to the Primary Health Centre, Gangab, and was medically examined by Dr. R. C. Sharma (PW 8) at 11.10 p.m. Eleven contusions, one traumatic swelling and a contused abrasion where found on his person. All the injuries were found to be simple in nature and caused by hard and blunt objext. Station Officer, D. P. Sharma (PW 10) of Police Station Gangoh, took up the investigation of the case, and, after completion of the investigation, submitted charge sheet (Ext. ka 19) on 10-5-1976. Noor Hasan was charged under section 302/34, IPC and under section 25 of the Indian Arms Act and was tried by the aforesaid Fourth Additional District and Sessions Judge, Saharanpur, vide Sessions Trial no. 291 of 1976.
(3.) THE prosecution examined Sub kspector Mahesh Chandra (PW 1) Maqsood (PW 21, Malkhan PW 3) and constable Bishambhar (PW 4) as eye witnesses of the occurrence. Sab Inspector Mahesh Chandra (PW 1) has narrated the whole prosecution story right from his departure from Police station Gangoh along with constables and that he collected witnesses on the way ana the occurrence that took police on the culvert of village Dabri. He has stated that he flashed torch on the group of four persons sitting on the culvert and interrupted them ana the same was replied by a bullet. He has also narrated that Noor Hasan was apprehended with the help of constable and witnesses after giving him some beating and was starched and recoveries were made as aforesaid. He has also stated that he took injured Mahipal to the hospital where he breathed his last while he was being medically examined. THE Sub Inspector left the dead body of constable Mahipal in the supervision of constable no. 934 Ram Autar and constable no. 930 Satyapal and went to Police Station Gangoh along with respondent Noor Hasan and the articles recovered from him where he lodged the first information report of the occurrence. It has been pointed out that General Diary no. 27, which relates to the departure of this Sub Inspector and police constable does not disclose that they had taken torches with them. It is in evidence that it was Amawashiya night (dark night). THE Sub Inspector and the constables were going to apprehend an accused m a case under section 394, IPC registered at Police station Gangoh. Alt the witnesses have stated that the Sub Inspector and some constables had torches. THE Investigating Officer inspected their torches and found them in working condition and prepared their memos (Exts. ka 14 to 17). In view of this definite evidence that they bad torches, the omission in General Diary no. 27 is not material. He has further stated that he could see the lace of Noor Hasan in the light of torch when Noor Hasan fired at constable Mahipal. Maqsood (PW 2) pointed out at Noor Hasan who was present in court during the trial as the man who fired at constable Mahipal. He has deposed the whole prosecution story. He has no axe to grind against the accused nor there is any thing on the record to show that he is, in any way, under the thumb of the police. He is resident of Gangoh and respondent Noor Hasan belongs to Pirmajra a distant village. In our opinion, he is an independent and reliable witness. Malkhan (PW 3) is resident of village Bargaon. He has agricultural plots adjoining to that of Noor Hasan and he has admitted in a very straight forward manner that he and Noor Hasan had some quarrel over doll. Such trifling quarrels, in our opinion, do not provide motive for false implication in a murder case. Constable Bishambbar Singh (PW 4) also left the police station along with Sub Inspector Mahesh Chandra (PW 1) General diary no. 27 copy of which is Ext. ka 1, shows his departure along with Sub Inspector Mahesh Chandra. He has deposed the whole prosecution story and we do not find any thing that may discredit his testimony. AH the four eye vitnesses have deposed that, when they reached near the Dabri culvert, they saw four persons sitting on the culvert. Sub Inspector Mahesh Chandra flashed torch on them and asked as to who were sitting. At this, one of them fired at the police party, and, when constable Mahipal Singh (deceased) rushed ahead, respondent Noor Hassan fired at him which resulted in bis death. THEy have also deposed that the Sub Inspector Mahesh Chandra also fired two rounds after the first fire from one of the four sitting on the culvert. THEy have also deposed that Noor Hasan was apprehended on the spot whom they had seen in the light of the torches firing at Mahipal Singh. THE trial Judge has dealt with their evidence in detail and we find that he has rightly believed all the eye witnesses and as a result he has believed the prosecution story too. Mahendra Singh (PW 5) is a formal witness. Dr. Batra (PW 6) conducted the post mortem on the dead body of Mahipal Singh. Dr. Kamesh Chandra Sharma, medical officer in charge, Primary Health Centre, Gangoh (PW 8) examined the injuries of Noor Hasan and Mahipal succumbed to his injuries while Dr. Kamesh Chandra Sharma was examining him.;