- (1.) R. C. Deepak, J. The present Criminal Appeal has been filed by accused-appellants Ram Kewal, Ram Newal and Hirdey Ram against the judgment and order dated 27. 11. 1987 passed by Sri M. P. Pandey, Special Additional District & Sessions Judge, Faizabad, in Sessions Trial No. 350 of 1984, whereby he convicted the accused-appellants under sections 302/149, 307/149 and 148 I. P. C. and sentenced them to life imprisonment, five years' R. I. and one year's R. I. respectively.
(2.) THE brief facts of the case are that the accused-appellants as well as the informant Lalta Prasad, Ram Kuber and Ram Ujagir are the residents of the same village. It is alleged that there was some dispute between Ram Kuber and Ram Kewal Verma in regard to the abadi land and a case under section 107 Cr. P. C. was also initiated against them. It is further alleged that on 8. 4. 83 at about 8. 00 p. m. , Ram Kuber, Lalta Prasad, Ram Ujagir and Ram Sajivan were preparing gur in gulor and a lantern was glowing there and they were also holding the torches. All of a sudden, Ram Kewal. Ram Newal and Hirdey Ram, (sons of Surya Pal) and 5-6 others armed with gun and katta came therefrom western side. In the light of the torches it was disclosed that they were Ram Kewal, Ram Newal, Hirdey Ram and others. Ram Kewal exhorted that they be killed. Ram Newal and Hirdey Ram holding kattas in their hands opened fire as a consequence Ram Kuber sustained pellet injuries and raising alarm, they ran towards the village. THE door of the house of Ram Kuber was open, Ram Ujagir entered therein and bolted from inside THEreafter Ram Kewal, Ram Newal and Hirdey Ram after breaking the door entered the house wherein they were intervened by Kalawati daughter in law of Ram Kuber who requested them not to shoot Ram Ujagir, but they opened fire upon him and thereafter Ram Ujagir was removed from inside the house. It is alleged that they raised alarm upon which Lalji, Bramhadeen and certain others reached there and set fire at a sub-stance/patai lying there, which generated the light and due to the pressure of the village people and of the light, they left Ram Ujagir at the house of Mahadev and escaped from there. With these allegations Lalta Prasad Verma submitted an application at the police station Haiderganj, District Faizabad and on the basis of which a case at crime No. 59/83, under sections 147, 148, 149, 307 and 452 I. P. C. was registered the same night at 22. 30 hours at the said police station against Ram Kewal, Ram Newal, Hirdey Ram and 5-6 unknown. It is further disclosed by Lalta Prasad that the police arrived there and took the injured persons to the hospital. The investigation into the case was taken by Ram Vilas Dubey, S. I. , P. W.-5. who managed to send Ram Kuber and Ram Ujagir injured to the hospital. He recorded the statement of Ram Ujagir at Chaurey Bazar. Ram Ujagir was declared dead in the hospital but Ram Kuber was medically examined at 2. 40 a. m. on 9. 4. 83 by Dr, R. K. Srivastava, P. W. 9 and he found the following injuries on his person as disclosed in the injury report Ext. Ka-25:- 1. Firearm 0 3 cm. x 0. 3 cm x muscle deep over post medial aspect of Rt, forearm 8 cm above wrist joint no blackening or charring present direction superiorly & laterally. 2. Firearm wound 0. 3 x 03 cm x not proved over Rt. side of abdomen 3 cm outer to umblicus, no blackening or charring present. 3. Two firearm wound each measuring 0. 2 cm x 0. 2 cm, 2 cm a part over back of Rt. thigh, just below glutral crease no blackening present. Firearm wound 0. 2 cm x 0. 2 cm over medial part of Rt. thigh in the, middle.
(3.) THREE firearm wounds over Rt. leg each measuring 0. 2 x 0. 2 cm. in an area 6 cm x 2 cm, no blackening part and out aspect in the middle. Firearm wound 0. 3 cm x 0. 3 cm over out medial aspect of left leg in the middle. Dr. R. P. Pandey performed the autopsy on the dead body of deceased Ram Ujagir and he noticed the following injuries on his person. A copy of the post-mortem examination report is Ext. K. a-2. 1. Lacerated wound 10 cm x 6 cm x cavity deep over the left (sick) ligament pearcing the under lying structure such as (sick) (urinary) and large intestine. Loops of small intestine are (sick) out of the wound. 2. Lacerated wound 2 cm x 1 cm x 1 cm on the left side scrotam on front of left (sick) on front of left scro-tam. 3. Firearm wound with hard scab 0. 3 cm x 0,2 cm x skin deep outer aspect of right knee joint. A (sick) body recovered and preserved. 4. Firearm wound with hard scab 0. 3 cm x 0. 2 cm x skin deep on outer aspect of right knee joint 3 cm superior to injury No. (3 ). (sick) body recovered and preserved. 4. The Investigating Officer recorded the statement of Lalta Prasad, Kalawati and certain others. He prepared the inquest on the dead body of the deceased Ext. Ka-16 and the site-plan of the occurrence Ext. Ka-4 and after completion of the investigation he submitted the charge-sheet against the accused persons. The charges were framed against them who pleaded not guilty and claimed to be tried. 5. To prove its case the prosecution examined as many as nine witnesses. Lalta Prasad P. W. I, Ram Kuber P. W. 2 and Kalawati P. W. 3 are the witnesses of fact and the remaining are formal ones. The accused examined no witness in defence. The Trial Court on the basis of evidence on record convicted the accused appellants under relevant Sections, against which the present appeal has been filed, already referred to above. We have heard Sri Nagendra Mohan, learned Counsel for the accused-appellants and Sri B. P. Verma learned Additional Government Advocate and perused the record. 6. It has vehemently been argued by the learned Counsel for the accused-appellants that the occurrence had taken place in the night and there was no occasion for the witnesses Ram Kuber and Kalawati to identify the assailants. He also submits that Ram Ujagir was not in a position to make any statement to the Investigating Officer disclosing the names of the accused, who had Jaused injuries to him as recorded by the Investigating Officer under section 161 Cr. P. C Ext. Ka-3. Further contention is that in fact some dacoits attacked the house of Ram Kuber to commit dacoity, wherein Ram Kuber and Ram Ujagir sustained injuries and due to the existing enmity the accused-appellants have falscly been implicated in the present case.;