Chandra Dhari Singh, J. - (1.) Heard Sri Vinay Saran, learned Amicus Curiae for the appellant and Ms. Usha Kiran, learned A. G. A. for the State.
(2.) The present jail appeal has been preferred against the judgment and order dated 12.4.2005 passed by the Additional Sessions Judge, Court no.5, Saharanpur in S.T. Nos. 248 of 2004 and 249 of 2004, by which the appellant Gulsher @ Bhoot was convicted for the offence punishable under Sections 302 read with Section 34 and 201 I.P.C. and Section 25 of the Arms Act. He was sentenced to undergo imprisonment for life and fine of Rs.5000/- for the offence punishable under Section 302/34 I.P.C. and in default of payment of fine, he shall undergo further R.I. for two years. He was further sentenced to undergo R.I. for two years and a fine of Rs.2000/- for offence punishable under Section 201 I.P.C. and in default of paymant of fine, he shall undergo R.I. for six months. He was further sentenced to undergo R.I. for one year and a fine of Rs.500/- for offence under Section 25 Arms Act. In default of payment of fine he shall undergo R.I. for three months. All the sentences shall run concurrently.
(3.) Brief facts of the case I.A first information report was lodged on the complaint made by Biram Singh son of Sri Mam Chandra on 13.2.2004. It is stated in the complaint that an incident took place on 12.2.2004 at about 11.30 P.M. in jangal of village Kolki Kala, Police Station Gagalheri, District Saharanpur. When the complainant Biram Singh along with his brother Ajab Singh (deceased) accompanied with Roop Chandra (P.W.2) were going in Jhota Buggi loaded with sugarcane and were going to Daya Sugar Mills. As soon as they reached just ahead of village Kolki near village Khajoori Akbarpur, four miscreants armed with knife, countrymade pistol and lathi came out from the field of sugarcane from the left side and they surrounded them. The miscreants started taking search of the deceased and accompanied person. The search was protested by the deceased Ajab Singh. On this protest, Iqbal accused uttered "sale roopri wale khoob bante hai, isi ko khinch lo". All the miscreants started attacking on Ajab Singh with knife and danda and dragged him in the field. P.W.1, complainant Biram Singh and P.W.2, Roop Chandra made a hue and cry and rushed towards the village. Bhanwar Singh, Suresh Chand, Jagdish, Naresh, Anoop Singh and several other villagers came on the spot and all started a search of Ajab Singh (deceased). He was found dead near the drain of the field of Bhagirath of Kolki. His hands and legs were tied and his mouth was full of clothes. The F.I.R. was lodged as Ext.Ka-1 in police station Gagalheri against all four miscreants including the appellant and crime no.16 of 2004, under Sections 302/201 I.P.C. was registered. The investigation was started. The formality of panchayatnama was made by the police. The police went to the spot at 12.00 noon. The deadbody was inspected and sealed from place of the incident and it was handed over to Constable Hoshyar Singh and Rajiv Kumar along with papers for post mortem. Investigating Officer went to the place of incident and prepared the site plan (Ext.Ka-17). The deadbody along with papers was brought to the police line and entry was made in G.D. No.39 on 13.2.2004. The Investigating Officer also took sample of blood stained earth and plane earth from the spot and prepared memo (Ext. Ka-21) II.After completion of the investigation, Investigating Agency found enough material to implicate the accused-appellant and on the implication, a chagesheet was submitted against him before the concerned magistrate court. The accused was charged for commission of offence which was triable by the court of sessions and he was committed to the court of sessions as per the provisions of Section 201 Cr.P.C. by competent court. The competent court took cognizance and the accused was charged under Section 302 read with 34 and 201 I.P.C. vide order dated 21.7.2004. He was also charged of offence punishable under Section 25 of the Arms Act vide order dated 27.3.2004. He pleaded not guilty and claimed to be tried. III.In order to prove the charges, the prosecution had examined Biram Singh as P.W.1 who deposed that he is an agriculturist. He stated in his testimony that in the night of 12/13.2.2004, he went to Daya Sugar Mills Gagalheri by loading sugarcane in his 'jhota buggi'. His brother Ajab Singh and Roop Chandra were also with him. When they reached ahead of the village Kolki at about 11.30 P.M. near village Khajoori four miscreants namely accused Gulsher alias Bhoot, Iqbal, Israr and Sajid met there. They were previously known to him as they were frequent visitor in his village. He further stated that the accused persons armed with knife and lathi were seen in the light of truck and torch. They threatened him and said that whatever he possessed hand over to them otherwise they will kill him. The deceased-Ajab Singh protested. On the protest of Ajab Singh, he was dragged from Jhota Buggi by all the accused persons. Thereafter, Ajab Singh was inflicted with knife and danda and he was dragged in the field. IV. Roop Chandra (P.W.2) had been examined and he deposed that he knew Biram Singh and Ajab Singh. Both were real brothers. The incident took place on 12/13.2.2004. He stated in his testimony that he was going to Gagalheri Sugar Mill along with deceased. At about 11.30 P.M., when they were moving towards village Khajoori on the road, four miscreants Israr, Iqbal, Gulsher alias Bhoot and Sajid had came out and stood in front of them. He stated in his deposition that all the miscreants were previously known to him, as they were hackers and have movement/round in the village. The miscreants were identified in the light of truck and torch and all of them threatened him to kill and they had struggled with Ajab Singh. The accused-appellant was armed with danda. The accused Israr was armed with knife, Sajid was armed with lathi and Iqbal was armed with revolver/pistol. He further stated in his testimony that several persons came from the village accompanied with him and went to the place of occurrence, there he did not find Buggi or Ajab Singh. In the morning deadbody of Ajab Singh was found in the filed of Bhagirath of Kolki, whose hands and legs were tied and clothes were found in his mouth. 'Jhota Buggi' was found in the village Khajoori in the morning. V. Constable Husmen Ali had been examined as P.W.3 who is the formal witness and proved the chick F.I.R. (Ext.Ka-2 ) prepared on the basis of written report and G.D. No.18. The original G.D. was produced and the copy was proved as Ext.Ka-3 in the handwriting and signatures of the witness. VI.Dr. P. K. Tyagi had been examined as P.W.4 who had conducted post mortem of the deceased. In the post mortem following injuries were found on the person of the deceased:- 1.Incised wound on right eye outer end oblique 2 x 3 cm x muscle deep. 2.Incised wound on left side face 1 cm below left eye 2.5 x 3 cm x muscle deep. 3. Lower lip incise wound 1.5 x .3 cm x muscle deep in just right to mid line. 4. Abraded contusion on left side from of chest just below left nipple 13 x 8 cm. 5.Abraded contusion on right side front of chest 3 cm below nipple 6 x 4 cm. 6. Abrasion right shoulder front 2 x 2 cms. 7.Lacertated wound on left leg 1 x 04 cm x bone deep just below mabolus count. 8. Bruisi with swelling on right hand exterior aspect whole. 9.Interated ligature mark on front and both sides of neck 12 x 2 cm. Bone of mark is pale and margin echmosed. There is extravenation of blood in underlying tissues. P.W.4 deposed in his testimony that on 13.2.2004, he was posted as Senior Pathologist in District Hospital, Saharanpur and he conducted post mortem examination on that date at 4.40 p.m.. The deadbody was brought by Constables Hoshiyar Singh and Rajiv Kumar in sealed state along with eight papers. As per Doctor's opinion, death occurred between 18 to 24 hours prior to conducting of the post mortem. Rigor mortis was present. There was bleeding from the hostrils. All the ante mortem injuries referred in the post mortem report were duly proved by P.W.4, Dr.P.K. Tyagi. As per Doctor's opinion, death occurred on account of strangulation. He further deposed that the death might be possible at about 11.30 or 12 in the night of 12.2.2004. Injury nos.1 to 3 and 4 to 9 were sufficient to cause death. VII.Head Constable Afsar Ali had been examined as P.W.5. He had deposed that on the basis of search and recovery, he scribed the chick F.I.R. on 1.3.2004 and proved it as Ext. Ka 6. VIII.Ajit Kumar Singh, S.I. had been examined as P.W.6 who was Investigating Officer of the case under Section 25 of the Arms Act against the appellant-accused Gulsher alias Bhoot. He deposed that on 1.3.2004, first paper of C.D. was scribed. Statement of the accused was recorded as well as the statement of the description of the F.I.R. was recorded on 6.3.2004. He recorded the statement of Abdul Rashid and other witnesses, prepared site plan and proved as Ex. Ka-9 and sought permission to prosecute the accused under Section 39 of the Arms Act from D.M. Saharanpur. After completion of investigation for the offence punishable under Section 25 Arms Act, he submitted a chargesheet and proved the same as Ex.Ka-11. IX.S.I. Adil Hasan had been examined as P.W.7, who was the Investigating Officer of the main case under Section 302 I.P.C.. He had deposed that on 13.2.2004, he took charge of the investigation and recorded statement of the scriber of the chik F.I.R., proved the Panchayatnama of the body of deceased. He also made search of the accused and in the intervening night of 29.2.2004 and 1.3.2004, the present appellant Gulsher was arrested on the basis of information of the informant. The police party was present at the time of arrest of accused which was made from the house situated in the jungle of village Behri Gujjar. Countrymade pistol was recovered from the possession of the accused along with two live cartridges. Recovery memo was prepared and accused persons were arrested at 12.30 night intervening 29.2.2004/1.3.2004. X.The accused was examined under Section 313 Cr.P.C. He had denied to have committed any offence on the date, time and place and he had stated that he was labourer. He was taking rest after taking meals in his house and at that time, the police arrested him and confined. He was falsely implicated in the case. No defence evidence was adduced by the appellant-accused.;