- (1.) VIJAY Kumar Verma, J. This Government appeal after seeking leave of the Court has been preferred against the judgment and order dated 27-5-2002 passed by Sri Ran Veer Singh, the then Additional Sessions Judge/spl. Judge (NDPS Act), Etah in S. T. No. 653 of 1997, whereby the accused-respondents Vijai Pal, Umrao, Mahlpal and Ram Singh have been acquitted of the offences punishable under Section 302/307 read with Section 34 IPC, in Case Crime No. 43/97 of P. S. Awagarh, District Etah.
(2.) THE incident resulting in the death of Netra Pal, son of the complainant Khacher Singh, is said to have occurred on 1-5-1997 at about 7. 00 a. m. in his field situated within the limits of village Borra Khurd. THE case of prosecution, in brief, is that litigation regarding land was going on between the complainant Khacher Singh S/o Mewa Ram, r/o village Borra Khurd, P. S. Awagarh, District Etah and Vijai Pal etc. residents of same village. About two years ago, the complainant had won the case, but Vijai Pal has filed appeal in Etah. It is alleged that on 1- 5-1997, when the complainant was ploughing the field at about 7. 00 a. m. and his sons Chandra Pal, Bahadur and Netra Pal also were present there, the accused Vijai Pal, Umrao, Mahipal and Ram Singh, all sons of Lalu Baghel, armed with tamanchas came there and Vijai Pal said that they would not get the field ploughed, on which complainant's son Netra Pal said that they have been continuing to cultivate the field forever and now also they will plough the field. On this, the accused Vijai Pal and Umrao caught hold of Netra Pal and the accused Mahipal and Ram Singh committed his murder by shooting him. When the complainant and his sons wanted to save Netra Pal, the accused-persons with intention to commit their murder fired on them. THE complainant alongwith his son Chandra Pal rushed to village Gadesara and got the written report (Ext. Ka-1) scribed by Keran Singh Thakur and then they went to P. S. Awagarh, where on the basis of said written report, chik FIR (Ext. Ka-4) was prepared by the then constable/clerk Mahesh Narain, who registered a case under Section 302/307 IPC at Crime No. 43/97 on 1-5-1997 at 8. 00 a. m. against the respondents-accused and made entry in G. D. No. 11 vide Ext. Ka-5. S. I. Ram Pal Sagar (C. W. 1) was posted as Station Officer at Police Station Awagarh. He took up the investigation in his hands and after recording statement of complainant, proceeded to the place of incident alongwith other police personnel. After making spot inspection, he prepared site plan (Ext. Ka- 6) and thereafter conducted inquest proceeding on the dead-body, during which inquest report (Ext. Ka- 12) and connected papers (Ext. Ka-9 to Ext. Ka-11) were prepared. Thereafter, the dead-body was sealed and sent through constables Shamsher Ahmad and Dal Chand for post-mortem examination which was conducted by Dr. A. K. Saxena (P. W. 3) on 1-5-1997 at 4. 25 p. m. According to post-mortem report (Ext. Ka 2) the following ante-mortem injuries were found on the person of deceased : (1) Fire-arm wound of entry 1 cmx 1 cm. on the left side chest lateral aspect just below axilla with blackening all around in 5cm. x 5cm. Area, 9 cm. away from left nipple at 4 O'clock position. On dissection one metallic bullet was recovered from liver, left lung also was lacerated. Direction being from left to right, slightly downwards and backwards. (2) Abrasion 2. 5 cm x 1 cm on front of abdomen on left iliac fossa. (3) Abrasion two in number 3 cm x 1 cm each on the back of left hip just below iliac crest. One. . . . . . . . . . . . . . (paper torn ). (4) Fire-arm wound of entry 0. 5 cm x 0. 5 cm on left side of waist just above iliac crest. On dissection (paper torn), a metallic bullet was recovered from fossa and membrances, below small intestine, perforating a part of small intestine ? Direction being from left to right, upwards and forwards. In internal examination, left pleura, left lung and peritoneum were found lacerated. Left thorasic cavity was full of blood. Digested material in small intestine and faecal matter and gases in large intestine were found present. Liver was lacerated and one metallic bullet was recovered. According to Dr. Saxena death was caused about 1/2 day before due to shock and haemorrhage as a result of ante-mortem injuries. During investigation, S. I. Ram Pal Sagar collected blood stained and simple earth from the place of incident and prepared memo (Ext. Ka-7 ). Search for the accused-persons was made, but they were found absconding. After transfer of S. I. Ram Pal Sagar, rest investigation was carried out by S. I. Sita Ram Dwivedi (P. W. 4), who after completion of investigation, submitted charge-sheet (Ext. Ka-3) against all the accused-respondents.
(3.) ON the case being committed to the Court of Session for trial, charge under Section 302/307 read with Section 34 IPC was framed against the accused-respondents, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case examined five witnesses in all. S. I. Ram Pal Sagar was examined as Court Witness. P. W. 1 Khacher Singh and P. W. 2 Chandra Pal are said to be the eye- witnesses. Written report (Ext. Ka-1) has been proved by the complainant Khacher Singh in his statement, which was recorded on 20-2-1998. P. W. 3 Dr. A. K. Saxena has proved post- mortem report (Ext. Ka-2 ). S. I. Sita Ram Dwevedi (P. W. 4) is second investigating officer. He has proved the charge-sheet (Ext. Ka-3 ). P. W. 5 Constable Keshav Prakash is formal witness, who has proved chik FIR (Ext. Ka-4) and copy of G. D. of registration of case (Ext. Ka-5) by recognizing the handwriting and signature of constable clerk Mahesh Narain. C. W. 1 S. I. Ram Pal Sagar is the first investigating officer, who has proved inquest report and other papers prepared by him, as mentioned above.;