- (1.) THIS appeal, preferred under Section 378 of the code of Criminal Procedure, 1973, is directed against judgment and order dated 14-11-1983, passed in Ses sion Trial No. 149 of 1980 by, the then, learned II Additional Sessions Judge, Nainital, whereby the respondents Ram Sahai, Chhadami, Nathu, Leeladhar, Bhagirath, Chiranji, Badri and Rambir have been acquitted of the charges of offences punishable under Section 148, 302/149, 307/149 of the Indian Pe nal Code, 1860 (for brevity hereinafter I. P. C. ). Nathu has been acquitted not only of the aforesaid charges but also from the charge under Section 25 and 27 of the Arms Act, 1959. THIS appeal" against acquittal was originally filed be fore the Allahabad High Court in Feb ruary, 1994. The leave was granted and appeal was admitted on 19-02-1985 by said Court. The appeal is received by transfer by this Court, for its disposal, under Section 35 of the U. P. Re- organi zation Act, 2000.
(2.) ACCORDING to the prosecution story, on 10-04-1980, P. W. 2, Fateh Singh along with his uncle Sant Singh (deceased) and sister P. W. 3, Km. Rohini alias Kukku, in car bearing registration number U. S. S. /4561, was going to ex amination center, Rudrapur so that Km. Rohini alias Kukku may appear in her Home Science paper of Class 10th. When they were passing on a road near village Dalchand, at about 1:40 P. M. , accused/respondents Ram Sahai and Chhadami waived their hands in front of the car to stop the same. Sant Singh (deceased) who was driving the car stopped it. Meanwhile, from the eastern side other six accused/respondents namely, Nathu, Leeladhar, Bhagirath, Chiranji, Badri and Rambir, who were in an ambush in the ditches by the side of the road, also came near the car. They all were armed with Laathis. All the accused/respondents surrounded the car and started hurling abuses at Sant Singh. As soon as, Sant Singh (de ceased) alighted from the car, accused/respondents Chiranji, Leeladhar, Nathu, Jhunda alias Bhagirath wielded laathis on him and caused several in juries on his person. On this, Sant Singh opened fire from his revolver in his self defence hitting accused/re spondents Chiranji and Leeladhar. However, the revolver, thereafter, was snatched from Sant Singh by accused/respondent Nathu, who fired back from the revolver at Sant Singh. Simultane ously, accused/respondents Jhunda alias Bhagirath, Ram Sahai, Rambir and Badri started wielding laathis on Fateh Singh (P. W. 2) and Km. Rohini (FW. 3 ). But, on raising alarm Fateh Singh and Km. Rohini, accused/re spondents fled towards the village. Ac cused/respondent Nathu fled with the revolver of Sant Singh. Injured Fateh Singh and Km. Rohini when came near Sant Singh, they found that he has died. ACCORDING to the prosecution case, P. W. 6, Om Prakash also witnessed the occurrence. P. W. 2, Fateh Singh lodged the first information report (Ext. A-1) with the police station Bazpur. On the basis of said report a check re port (Ext. A-13) was prepared and an endorsement of the same was made in the general diary (copy of extract of which is Ext. A-14) by Head Constable Abdul Gani (P. W. I 1 ). P. W. 12, Vikram Singh, Station Officer of police station Bazpur started the investigation of the crime. During investigation, inquest re port (Ext. A-10) was prepared of the dead body of deceased which was sent for postmortem examination. The In vestigating Officer also got prepared sketch of dead body (Ext. A-20), police form No. 13 (Ext. A-19), Police form No. 33 (Ext. A- 18), site plan of the place of occurrence (Ext. A-21 ). Also, apart from getting injured Fateh Singh (P. W. 2) and Km. Rohini (P. W. 3) medi cally examined, accused/respondents Chiranji and Leeladhar were also medi cally examined, P. W. 5, Dr. M. Hussain conducted postmortem examination on the dead body of deceased Sant Singh. After recording the statements of wit nesses, P. W. 12, Vikram Singh (Investi gating Officer) submitted charge sheet (Ext. A-24) against all the eight accused persons for their trial under Section 147, 148, 323 and 302 of the I. P. C. The learned Magistrate on receiving the charge sheet registered the same, and after giving necessary copies to all the accused persons, committed the case to the court of Sessions. The learned Ses sions Judge, after hearing the prosecu tion and accused persons, framed charge against the accused/respond ents namely, Ram Sahai, Chhadami, Leeladhar, Jhunda alias Bhagirath, Chiranji, Badri and Rambir of the of fence punishable under Section 148, 302/149 and under Section 307/149 of the I. P. C. Charge of offence punish able under Section 148, 302 /149 and 307 /149 of the I. P. C. and that of Sec tion 25 and 27 of the Arms Act, 1959 were framed against accused/respond ent Nathu. AH the accused/respond ents pleaded not guilty and claimed to be tried. The prosecution got examined P. W. 1, Constable Hoshiyar Singh (who took the dead body along with neces sary papers for the postmortem exami nation); P. W. 2, Fateh Singh (injured and informant); P. W. 3, Km. Rohini alias Kukku (injured); P. W. 4, Dr. S. K. Tewari (who examined the injuries of above two injured persons); P. W. 5, Dr. M. Hussain (who conducted the post mortem examination of the dead body of Sant Singh and also recorded inju ries on the person of accused Chiranji and Leeladhar); P. W. 6, Om Prakash (an eyewitness); P. W. 7, Mehendra Pal Singh [witness of the preparation of inquest report and recovery memos of blood stained soil and broken glasses of the car (Ext. A-5 & Ext. A-6)]; P. W. 8, Head Constable Rajmal Singh (who took the injured persons for medical examina tion); P. W. 9, Satnam Singh (another witness of preparation of inquest re port); P. W. 10, Keshav Dutt Nainwal (a witness who deposed that Km. Rohini was a private student of High School in the year 1980 with Roll No. 1126767); P. W. 11, Cadet Sub Inspector Abdul Gani (who was posted as Head Consta ble on the day of incident with the po lice station Bazpur and prepared check report Ext. A-13 and made endorse ment in the general diary, copy of ex tract of which is Ext. A-14 and P. W. 12, Vikram Singh (Investigating Officer ). The oral and documentary evidence were put to the accused/respondents under Section 313 of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr. PC. ). The accused per sons in their examination alleged that the evidence adduced against them was false and they have been falsely impli cated in the case due to enmity. In his reply under Section 313 of the Cr. PC. , accused/respondent Chiranji Lal has stated that at the time of incident he was coming from the side of Gular Bhoj and Sant Singh was on his scooter. Ac cording to this accused/respondent, it was deceased Sant Singh, who started hurling abuses at him and left the place after giving threat to see him. Soon thereafter, Sant Singh came back in his car and fired at Chiranji Lal and Leeladhar at the same place. This ac cused/respondent further states that on hearing noise of fire immediately villagers rushed at the spot and they wielded laathis on the deceased. Learned Sessions Judge after going through the evidence on record found that the charges framed against the ac cused persons are not proved beyond reasonable doubt and, as such, giving them benefit of doubt acquitted all the accused persons of the charges framed against them. Aggrieved by the judg ment and order of the trial court, the State has filed this appeal against ac quittal of aforesaid accused persons, with the leave of the court. We heard learned Government Advocate/public Prosecutor for the ap pellant-State and Mr. J. S. Virk, learned counsel for the accused/respondents and perused the entire evidence on record.
(3.) P. W. 5, Dr. M. Hussain, con ducted the autopsy of the deceased Sant Singh on 11-04-1980, at about 7:00 A. M. , at Kashipur. He found fol lowing ante mortem injuries on the body of the deceased: (i) Lacerated wound 3. 2 cm x 4. 5 cm x bone deep on back of top of head with commuted fracture of occipetal bone. (ii) Lacerated wound 2. 5 cm x 1. 5 cm x bone deep over the left side of face 2 cm away from left an gle of mouth with fracture of mandible commuted and lower middle and left outer and canine teeth missing. (iii) Lacerated wound 3cm x 1cm on right temple bone deep. (iv) Multiple lacerated wound in area 30 cm x 18 cm varying 12 cm x 4 cm to 6 cm x 3 cm including whole of face left upper lip and forehead and from one temple to another temple with commuted fracture of frontal both temporal, both maxilla bone. Bleeding from both ears present. There is fracture of occipital in pieces and laceration of membranes and brain. (v) Lacerated wound 4 cm x 3 cm on middle of head bone deep with fracture of perietal bones. (vi) Multiple abrasions in area 15 cm x 3 cm on back of left forearm and hand varying from 2 cm x 0. 5 cm to 1/2 cm x 1/2 cm. (vii) Lacerated wound 3 cm x 2. 5 cm bone deep with evulsion of nail and distal phalyux is fractured. The portion of the tip of thumb is partly missing. The nail is at tached with skin. (viii) Abrasion 1 cm x 1/2 cm on the base of right thumb. (ix) Abrasion 3 cm x 2 cm on the back of left shoulder, (x) Contusion 12 cm x 4 cm on back of right shoulder. According to the Medical officer, who conducted the postmortem exami nation, the death of Sant Singh was due to ante mortem injuries resulting into coma. First of all, it is pertinent to men tion here the injuries received by the in jured witnesses and the accused/re spondents. Dr. M. Hussain (P. W. 5) be sides conducting postmortem examina tion on the dead body also examined injuries on person of accused persons Chiranji and Leeladhar on 10-04-1980, at about 7:15 P. M. and 7:25 P. M. . , re spectively, and prepared the reports Ext. B-l and Ext. B-2. Following inju ries were found on the person of ac cused Chiranji: Gunshot injury 1 cm x 8/10 cm x bone deep on left side of chin 1 cm left of midline. There is swelling on chin and upper half of neck. The wound is blackened at the margins. Following are the injuries found on the person of accused Leeladhar by the same Medical Officer: (i) Gunshot wound 1 cm x 8/10 cm x cavity deep on right side chest just above rib margins 7 cm right to midline and 11. 5 cm below the right nipple. Margins of wound were blackened and in verted. It was a wound of entry. (ii) Gunshot wound 1. 5 cm x 1 cm x cavity deep on right lateral side of abdomen just below margins of ribs, 8 cm above iliac crest. Margins were everted. Half of the injury was tattooed and lac erated. It was wound of exit.;