- (1.) SEVEN persons aggrieved by the judgment and order dated 16-4-1982 passed by VII Additional Sessions Judge, Aligarh in S. T. No. 277 of 1980, State v. Bira and Ors. , preferred this appeal under Section 374 (2) Cr. P. C. Out of seven appellants three namely Omveer, Ahmad Saeed and Suresh have expired during pendency of appeal and their appeal has abated vide order dated 18-7-2007. The remaining appellants namely Bira son of Saudan, Tara son of Munshi, Onkar son of Hira Singh, all resident of Kidhara police station Harduwaganj District Aligarh and Mohd. Shafi resident of Harduwa police station Harduwaganj have been sentenced by the trial Court to life imprisonment under Section 302/149 IPC and three years' rigorous imprisonment under Section 452 IPC. In addition to this, appellants Bira, Tara and Onkar have further been sentenced to seven years' rigorous imprisonment under Section 307 read with 149 IPC and one and half years' rigorous imprisonment under Section 148 IPC. Similarly Mohd. Shafi has further been sentenced to five years' rigorous imprisonment under Section 307 read with 149 IPC and one year's rigorous imprisonment under Section 147 IPC. The case relates to police station Harduwaganj District Aligarh and has arisen out of crime case No. 79 of 1980.
(2.) ACCORDING to the prosecution, about 5 to 6 years prior to the date of occurrence, an attempt was made on the life of Shishupal uncle of Jalsur. In that connection, appellant Tara, his brother Mahabir and father Munshi faced trial under Section 307 IPC and were held guilty and sentenced to four years' rigorous imprisonment by the Court of Session. In appeal, the conviction was maintained but sentence was reduced to two years. It is said that since then Munshi is absconding Appellants Tara, Bira and Onkar are related to one and another. Jalsur had also lodged a report under Section 395 IPC against Tara and Mahabir but the said case ended in acquittal. The prosecution case is that in the night of 22/23-3-1980 at about 12'0 clock Jalsur and his uncle Onkar Singh son of Sher Singh (the deceased) were sleeping on the roof of their 'kotha' in village Kidhara. In front of his house, on the chabutara, one Jagdish who runs a shop in outer room of informant's house was sleeping. This Jagdish heard sound of movement of certain persons and suspecting that some malefactors were reaching there to commit some crime, Jagdish raised alarm and took to his heals. Informant Jalsur and his uncle Onkar also woke up. While Onkar climbed down from Kontha towards Chabutara, Jalsur jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a 'chappar' in front of his own house. In the light of fire made on account of burning of 'chappar' he saw appellants Bira, Tara, Onkar and their companions scuffling with his uncle Onkar (the deceased ). Bira was armed with gun, Tara and accused Onkar had country made pistol and their companions were also armed with lathi, ballam and fire-arm. On the alarm being raised, villagers started collecting. Some of the companions of Bira, Tara and Onkar then climbed up the roof of the house and kept on firing indiscriminately in order to scare the witnesses. The informant also saw that during Bira, Tara and accused Onkar scuffling with the deceased, a shot was fired which struck in his chest. Some of their companions climbed down in to the house of informant. They tried to break open the door of the rooms but on their failure to do so they opened fire on the doors as well as in side the room through a ventilator. This firing caused injuries to informant's son Chandra Bose and daughter Tarawati. On seeing pressure mounting, the culprits pushed the deceased into the fire of 'chappar' which was suit ablaze by the informant. It is claimed that in this incident some of the culprits also received injuries of stray pellets from the shot fired by themselves. Informant's uncle Onkar son of Sher Singh died on the spot.
(3.) A report of this incident was lodged by Jalsur (P. W. 2) on the same day at 2. 15 a. m. at the police station which was there miles away. In the FIR the above incident was narrated and motive of the crime was also indicated. It was further alleged that this crime was committed in connivance with Rati Ram. Thus Bira, Tara, Onkar Singh son of Hira Singh and Rati Ram were named in the FIR aid it was mentioned that they were accompanied by 8-10 unknown male-factors whose faces had been seen and they could be identified by the witnesses. The incident was witnessed by informant Jalsur. PW-2 Shishu Pal P. W. 3, Bani Singh P. W. 4 besides others. At the police station Harduwaganj, the case was registered by constable clerk Karan Singh, P. W. 9. He prepared chik report and the investigation of the crime was taken over by S. O. N. P. Singh P. W. 6. He visited the place of occurrence and got an inquest of the dead-body conducted through S. I. Sarnam Singh. After due formalities and preparation of relevant documents, dead-body of Onkar son of Sher Singh was sent for autopsy. The Investigating Officer recorded the statements of the witnesses, made spot inspection and at the place of occurrence, he found seven empty shells of 12 bore cartridges fired by the culprits. He took them into possession and prepared recovery memo. A site plan was prepared and sample of bloodstained and plain earth was collected. He also collected from the place of occurrence sample of ash of burnt 'chappar' and prepared memo thereof.;