- (1.) K. S. Rakhra, J. These are two connected criminal appeals against the judgment and order dated 8. 3. 1982 of Vth Additional Sessions Judge Budaun in Sessions Trial No. 384 of 1980 whereby the three appellants Badan Singh Ram Das and Asharfi have been convicted and sentenced to life imprisonment under section 302/34 IPC, two years imprisonment under section 324/34 and two years imprisonment under section 452 IPC.
(2.) DURING pendency of the appeals appellant Asharfi in Criminal Appeal No. 633 of 1982 has expired and similarly appellant Badan Singh in Criminal Appeal No. 632 of 1982 has died and their death has been confirmed by Chief Judicial Magistrate Budaun vide his letter dated 18th July 2007. In view of this Criminal Appeal No. 633 of 1982 (Asharfi v. State) and in Criminal Appeal No. 632 of 1982 appeal of Badan Singh stands abated. This leaves us to consider the appeal of Ram Das alone. It may be mentioned here that all the three appellants were real brothers and their fourth brother Satyapal was also allegedly involved in this crime but he was not charge-sheeted as the police could not arrest him and his whereabouts could not be known. The incident relates to murder of Amar Singh resident of village Gudhni hamlet of Kupri Police Station Allapur District Budaun. On 16. 9. 1989 at about 2. 00 p. m. in the village itself he was done to death allegedly by the aforesaid three appellants and their companion Satyapal. The report of the incident was lodged by Lekhraj who is uncle of the deceased. In this incident injury was also caused to Smt. Gaya Kunwar, mother of the deceased who after death of her husband had settled down with Lekhraj. Giving description of the incident in oral report Ex. Ka. 3. Lekhraj stated that about 1-1/2 years prior to this incident a dacoity was committed in the house of accused Asharfi Lal and in the said dacoity deceased Amar Singh, Ram Sahai, Malkhan and Shiv Lal were named as accused. It was mentioned by the informant that the said report against Amar Singh etc. was falsely lodged by the accused Asharfi Lal on account of enmity. After the said dacoity, Asharfi Lal and his brothers started nurturing enmity against Amar Singh and his family members. It was also alleged that on the fateful day at about 2. 00 PM the first informant and Smt. Gaya Kunwar were present in their house while Amar Singh was lying on a cot at the threshold of the door. The three accused persons namely Asharfi, Badan Singh and Ram Das accompanied by their brother Satyapal arrived there. Asharfi was armed with Bhala, Badan Singh was armed with Gun. Ram Das was armed with revolver and Satyapal was armed with Gan-dasa. They forced their entry in the house of the informant and Asharfi and Satyapal opened assault on the deceased with their respective weapons namely spear and Gandasa. The first information report says that Badan Singh and Ram Das also fired from their respective weapons namely gun and revolver. The informant and his wife Smt. Gaya Kunwar raised alarm and tried to save the main victim Amar Singh. Asharfi and Satyapal then assaulted Gaya Kunwar also. Hue and cry was raised by the victims which invited attention of Pyare and Megh Nath of village Jagat and also that of Mathura Prasad of his village. They challenged the culprits and in the meanwhile Amar Singh who had received injury ran out of the house in order to save his life. All the four culprits gave him a chase and during this appellant Badan Singh and appellant Ram Das again opened fire with their respective weapons. The shots fired by them struck the victim and he fell down near the house of Mathuri Dheemar. Asharfi and Satyapal again assaulted Amar Singh after he had fallen down. When the informant and witnesses advanced towards culprits to save the victim, appellant Ram Das again fired on them and threatened that if anybody dared to come closer, he will be done to death. It was alleged that the informant caught hand of Ram Das in order to snatch his revolver. The revolver however, could not be snatched but it broke down and its magazine and two cartridges loaded therein fell on the ground. Bhala of Asharfi was also broken in this assault. Victim Amar Singh died on the spot. The informant then went to the police station leaving Smt. Gaya Kunwar and other witnesses to keep a watch on the dead body and lodged the report.
(3.) THE report was registered as Crime No. 263 of 1979 under sections 452/302/307 IPC and its investigation was taken up by Soran Singh S. I. (P. W. 7 ). He recorded statement of the first informant at the police station itself and proceeded to the place of occurrence at 17-10 hrs on the same day. He found dead body of Amar Singh lying in the passage near the house of Mathura Prasad. He held the inquest of the dead body in presence of the witnesses and sent the dead body for autopsy after due formalities. THE site plan of the place of occurrence was also prepared by him. THE Investigating Officer also recovered the broken head of Bhala and a magazine of the revolver with two bullets of 32 bore loaded therein. He also collected sample of blood stained and plain earth from the place of occurrence. Statement of Smt. Gaya Kunwar was also recorded by him and she was sent for medical examination. At the threshold of the door of the informant also the Investigating Officer found signs of assault and collected blood stained and plain earth there from. He also collected one pellet and three wadding from that place. Blood stains were also found on the matting and wooden parts of the cot. After completion of investigation, a charge-sheet was submitted against three persons Asharfi, Badan Singh and Ram Das who are all sons of Badri Singh but their fourth brother Satyapal who was also allegedly involved in the crime remained absconding. In the Trial Court seven witnesses were examined by the prosecution. No evidence was adduced by the accused persons in their defence. The witness examined by the prosecution included Lekhraj P. W. 4 who is informant, Meghnath P. W. 5 an eyewitness and Gaya Kunwar P. W. 6 an injured eye-witness. All of them have supported prosecution story. Dr. V. K. Sharma and Dr. M. V. Jugal are the witnesses who had examined the injuries of Gaya Kunwar and held inquest on the body of deceased Amar Singh. Ex. Ka.-l injury report of Gaya Kunwar had been proved by Dr. V. K. Sharma P. W. I. The doctor had found following injuries on the body of Smt. Gaya Kunwar on 16. 9. 1979 at about 11. 00 p. m. (i) Incised wound on Lt. Side of the scalp 4 cm x 1/4 cm x 1/2 cm 9 cm above the upper lobule of Lt. Ear. (ii) Contusion on Rt. Fore arm 7 cm x 4 cm below the Rt. Elbow joint and piercing wound in the center of contusion 1/4 cm x 1/4 cm x 1/2 cm. (iii) Linear abrasion on Rt. Forearm 2 cm x 1/8 cm 9 cm above the Rt. wrist joint. (iv) Contusion on lower side of the back on both side of spine on Lt. Side 10 cm x 4 cm, on Rt. Side 8 cm 5 cm, 3 cm above the Iliac crest.;