- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr. PC.) is di rected against the judgment and order dated 15-03-1985, passed in Sessions Trial No. 78 of 1980, by the then learned 1st Additional Sessions Judge, Nainital, whereby appellants Kundan Singh, Dara Singh, Dalip Singh and Daljit Singh, have been convicted under Section 302/ 149, 324/149, 323/149 and under Sec tion 148 I. P. C. and each one of them has been sentenced to undergo impris onment for life under Section 302/149 I. PC. , rigorous imprisonment for two years under Section 324/149 I. PC. , rig orous imprisonment for six months un der Section 323/149 I. P. C. and rigorous imprisonment for one year under Sec tion 148 I. P. C. Appellant Massa Singh has been convicted and sentenced to im prisonment for life under Section 302/ 149 I. PC. , rigorous imprisonment for two years under Section 324/149 I. P. C. , rigorous imprisonment for six months under Section 323/149 I. P. C. and rigor ous imprisonment for further six months under Section 147 I. P. C. Appellant Daljit Singh is further convicted and sentenced to undergo rigorous imprisonment for five years under Section 394 I. P. C. and appellant Jiwan Singh is convicted and ' sentenced to undergo rigorous imprison ment for three years under Section 411 of I. P. C.
(2.) WE heard learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that Smt. Lakhi Mandal R/o village Rambagh within the limits of police Out Post Dineshpur, RS. Rudrapur, was op posed to the proposal of her sister-in-1aw Smt. Jaimani to sell her land to Massa Singh (appellant ). On 26-12-1979, Jaimani, Krishna Pad and Bhudhar, took her husband Sudhir Mandal with them who did not return back. On 28-12-1979, Sudhir Mandal's wife Smt. Lakhi Mandal, made a report (Ext. A-2) of that incident at Police Out Post Dineshpur. On said report, Head Con stable Gopal Datt (P. W. 2) sent Consta ble Janardan Bhatt (P. W. 3) and Consta ble Abbal Singh (P. W. 8) to village Rambagh to enquire into the matter. On said date, i. e. 28-12-1979 at 6:30 RM. when the said two constables reached the village, they could not find Krishna Pad who was accused in said matter, there. While the policemen were on their return from the village, Smt. Lakhi Mandal, informed that Krishna Pad has now reached in his house. On this, they went back again to village Rambagh and brought Krishna Pad to Out Post Dineshpur at about 9:00 RM. for inter rogation. But at 9:30 RM. on the same day i. e. 28-12-1979, Smt. Lakhi Mandal along with one Kishore Kumar and Jagdeesh Lal (P. W. 4), again came to Police Out Post Dineshpur and reported that appellant Massa Singh alongwith his five sons namely, Kundan Singh, Dalip Singh, Daljit Singh, Dara Singh (all appellants) and Jagdish Singh (who died in encounter) along with other 4-5 bandits, armed with lethal weapons have reached in the village to kill her (Smt. Lakhi Mandal ). On this complaint, Con stable Janardan Bhatt (P. W. 3), armed with a fire arm Musket No. 97383 and 20 live cartridges, Constable Abbal Singh (P. W. 8) armed with Musket No. 99552 and 20 live cartridges, Constable Narendra Singh and Home Guard Anil Dhali (deceased), both armed, with 'lathies' (sticks), were sent to village Rambagh. At about 10:00 RM. on 28-12-1979 when the police personnel along with Lakhi Mandal, Kishore Kumar and Jagdeesh Lal (P. W. 4), reached near cul vert, they saw appellant Massa Singh along with his five sons and 4-5 other bandits coming towards them through the field. When the policemen flashed torches and asked the miscreants why they have come there, first, appellants overpowered Constable Abbal Singh, who fell down. Appellant Daljit Singh snatched his Musket (No. 99552 ). Con stable Anil Dhali (deceased) in an at tempt to rescue Abbal Singh, was also assaulted by the appellants who suffered injuries. Seeing, compelling circum stances, Constable Janardan Bhatt (P. W. 3) opened fire at the miscreants. Ac cused persons including appellants, leav ing the injured at the site, fled from the village along with the looted Musket. Hearing the noise of firing, villagers Ranjan, Mukund and Jitendra also reached at the place of occurrence. Constable Janardan Bhatt with the help of others, took injured Constable Abbal Singh and injured Home Guard Anil Dhali to hospital at Dineshpur. Anil Dhali succumbed to the injuries on way to hospital. Constable Janardan Bhatt (P. W. 3) thereafter went to Police Out Post Dineshpur and lodged First Informa tion Report (Ext. A-5) against accused persons including the appellants. Report was recorded by Head Constable Gopal Dart (P. W. 2) who made necessary entry in the general diary (extract of which is Ext. A-6 ). Head Constable Gopal Datt went thereafter to RS. Rudrapur by then it was 00. 05 of 29-12-1979. Meanwhile, Dr. Pramod Kumar (P. W. I) medically examined injury of Constable Abbal Singh on 28-12-1979 at 11:20 P. M. at hospital Dineshpur and prepared injury report (Ext. A-1 ). After the inquest re port (Ext. A-17) and other papers pre pared, Constable Lallu Lal (P. W. 9) along with another Constable took the dead body of Home Guard Anil Dhali in a sealed cover to civil hospital, Haldwani for postmortem examination. On 30- 12-1979, Dr. Mohan Singh Laspal (P. W. 7) conducted autopsy on the dead body of Constable Anil Dhali and prepared report (Ext. A-10 ). The Medical Officer opined that cause of death of the deceased (Anil Dhali) was shock and haemorrahage due to ante mortem injuries. In the incident, Jagdeesh Singh S/o appellant Massa Singh also suffered injuries and died on 04-01-1980. His dead body was also taken into custody by the police and inquest report (Ext. A-1l) was prepared. The same was sent for post mortem examination. The post mortem exami nation on the dead body of Jagdeesh Singh was conducted by Dr. S. Tandon (P. W. 10) on 05-01-1980. The said Medi cal Officer opined that deceased (Jagdeesh Singh) died of shock and peri tonitis due to ante mortem injuries. The crime was investigated by Inspector Kishan Singh (P. W. 12), who inspected the place of incident on 29-12-1979, prepared site plan (Ext. A- 16), took the simple soil and blood stained soil and prepared memo (Ext. A-7 ). The Investi gating Officer on 05-01-1980, prepared site plan (Ext. A-23) and from the place of occurrence, swords used in the crime, were recovered and prepared memo (Ext. A-9 ). After recording the state ments of the witnesses, the Investigating Officer submitted charge sheet (Ext. A-24) against seven accused persons namely, Massa Singh, Kundan Singh, Dalip Singh, Daljit Singh, Dara Singh, Jiwan Singh and Krishna Pad. The Magistrate, on receipt of the charge sheet, it appears after giving nec essary copies to the accused persons, committed the case to the Court of Ses sions, for trial of the accused persons. Learned trial court, after hearing the prosecution and the defence, framed charge of two heads against appellants Massa Singh, Kundan Singh, Dalip Singh, Daljit Singh and Dara Singh, for the offences allegedly committed by them, punishable under Section 302 read with 149 I. P. C. and that of one punishable under Section 307 read with Section 149 I. P. C. Appellants Kundan Singh, Dalip Singh, Daljit Singh and Dara Singh were further charged of of fence punishable under Section 148 I. P. C. Appellant Daljit Singh was further charged under Section 394 I. P. C. Appel lant Massa Singh was further charged under Section 147 I. P. C. Appellant Jiwan Singh was charged under Section 411 I. P. C. And charge of offence, pun ishable under Section 120 B read with Section 302 I. P. C. and under Section 120 B read with Section 307 I. P. C. was framed against accused Krishna Pad. All the accused persons, pleaded not guilty and claimed to be tried. On this, pros ecution got examined P. W. 1 Dr. Pramod Kumar who recorded the inju ries of injured Constable Abbal Singh (P. W. 8), P. W. 2 Head Constable Gopal Datt, who made entries in the general diary of the report, received from Smt. Lakhi Mandal on 28-12-1979 and made necessary entry in the general diary re garding the report and movement of the constables from and to the Out Post Dineshpur, P. W. 3 Constable Janardan Bhatt, an eye-witness of the incident, P. W. 4 Jagdeesh Lal, an eye-witness (de clared hostile), P. W. 5 Bhajan Lal, wit ness of taking simple soil and blood stained soil from the place of occur rence, P. W. 6 Makhan Sarkar, witness of the same fact (i. e. taking simple soil and blood stained soil), P. W. 7 Dr. Mohan Singh Laspal, conducted autopsy on the dead body of Anil Dhali, Home Guard, P. W. 8 Constable Abbal Singh (injured eye-witness), P. W. 10 Dr. S. Tandon, who recorded injuries on the person of Jagdeesh Singh, S/o Massa Singh, who later succumbed to the injuries and his post mortem examination was conducted by same Medical Officer, P. W. 11 Sub- Inspector Balvir Singh, a witness of recovery of Musket from Jiwan Singh (appellant), P. W. 12 Inspector Kishan Singh, the Investigating Officer and P. W. 13 Sub-Inspector Dinesh Chandra Singh Rawat (witness of recovery of blood stained sword ). Apart from this, affida vit of P. W. 9 formal witness was taken on record, who took the dead body of Anil Dhali in sealed cover for post mortem examination. Cross- examination of this witness was dispensed with by the de fence counsel. A chemical examiner's report of the blood stained articles sent to him was also obtained, which is Ext. A-25, Ext. A-26, Ext. A-27 and Ext. A-28 on the record. All the oral and docu mentary evidence was put to the accused persons under Section 313 of Cr. P. C. , regarding which the accused/ appellants alleged the same to be false and it is alleged that they have been falsely implicated due to enmity with Lakhi Mandal, who has close links with the police. In defence, the copies of the extract of general diary (Ext. B-1, Ext. B-2 and Ext. B-3), were got placed on the record. On the conclusion of the trial, the trial court found appellants Kundan Singh, Dara Singh, Dalip Singh and Daljit Singh, guilty of offences pun ishable under Section 302/149, 323/149, 324/149 I. P. C. and under Section 148 I. P. C. Appellant Massa Singh was found guilty of the offence punishable under Section 302/149,323/149,324/149 and under Section 147 I. P. C. Appellant Daljit Singh was further found guilty of offence punishable under Section 394 I. P. C. while appellant Jiwan Singh was found guilty of offence punishable under Sec tion 411 I. P. C. After hearing on sen tence, the convicts were sentenced as mentioned in para 1 of this judgment. Aggrieved by which, the appellants pre ferred an appeal before the Allahabad High Court in the year 1985, which was received by this Court by transfer under Section 35 of U. P. Reorganisation Act, 2000, for its disposal. (It is pertinent to mention here that the order sheet of the trial court shows that the accused Krishna Pad jumped his bail during trial and could not be arrested even after processes under Section 82 and 83 of Cr. P. C. were issued, as such evidence was recorded against him in his absence, under Section 299 of Cr. P. C. ).
(3.) BEFORE further discussion, it is pertinent to mention here the ante mortem injuries recorded on the person of deceased Anil Dhali (Home Guard) and that of Jagdeesh Singh S/o Massa Singh, who received injuries on the side of the accused persons. The post mortem examination report (Ext. A-10) read with statement of P. W. 7 Dr. Mohan Singh Laspal, shows following and mortem injuries were found on the dead body of Anil Dhali (Home Guard) at the time of autopsy on 30-12-1979 : 1. Incised wound 12cm x 1/2 cm, deep into brain cavity on the back of skull horizontally towards right side with brain matter coming out from the wound with compound fracture of the back skull. 2. Incised wound 10cm x cm, deep into brain cavity with com pound fracture of the skull bone. Brain contents coming out from the wound. This injury is below injury No. 1. 3. Incised wound 10cm x 1/3 cm, deep into brain cavity, direction towards right side and below in jury No. 2. 4. Incised wound 4cm x 114cm, skull bone deep, vertically to wards right side. 5. Traumatic amputation of left lit tle finger. Incised wound 1cm x 114cm, skin deep on outer part of left elbow joint, 4cm above the joint.;