S.I.JAFRI, J. - (1.) SHEONATH Singh, Latoor Singh, Kishori Singh, Harkaran Singh and Nathoo Singh have filed this appeal against their conviction and sentence recorded by Sri Arjan Dev. III Addl. Sessions Judge, Moradabad, by his judgment and order dated 31.3.1978 in sessions trial No. A -276 of 1974. Sheonath Singh and Latoor Singh appellants were convicted under sections 148 I.P.C. 302/ 149 I.P.C. 324/149 I.P.C; 325/149 I.P.C. and 323/149 I.P.C. and they were sentenced to undergo 2 years, life imprisonment, 2 years R.I. 4 years R.I. and 6 months R.I. respectively. Kishore Singh and Nathoo Singh were convicted under sections 147 I.P.C., 302/149 I.P.C. and 324/149 I.P.C. and were sentenced to undergo one year's R.I., life imprisonment, four years R.I. and 6 month's R.I. respectively. Co -accused Zora Singh, Karan Singh, Harkesh, Kaley Singh, Sahu Singh, Jhaoo Singh and Chhotey Singh were also tried along with the appellants but they were acquitted by the trial court.
(2.) OUT of the aforesaid accused persons Sheo Nath Singh, Latoor Singh, Sahu Singh and Karan Singh were armed with guns whereas Harkaran Singh, Jhaoo Singh and Chhotey Singh were said to have been armed with Tabal and the remaining accused were armed with lathis. The appellants belonged to village Rahupura. Ghosipura, P.S. Bhagatpura, District Moradabad. The complainant also lived in the same village. The appellants are collaterals which is clear from the pedigree given below: Ganga Ram [u1] Khubi Gulab Nathu Latoor Accused Narain Harkaran Accused Sheonath Accused Sallu Accused Chattr Duli Genda Chottey Accused Kishore Accused Munshi (Accused) In brief, the case of the prosecution is that on 24th August 1973 at about 5 pm. Genda Singh (P.W. 4) was at his Chari and Urd filed situated at a distance of about a mile from his village and at that time four she buffaloes belonging to Nathu Singh appellant, were grazing the crop of Genda Singh and Nathu Singh was standing nearby, Genda Singh took exception to the act of Nathu Singh and protested whereupon an altercation took place and Nathu Singh left the field threatening him to give lesson and went towards his village. The case of the prosecution further is that after about an hour, Genda Singh drove the aforesaid four buffaloes towards his village in order to take them to the cattle pond. When he reached in front of the house of Jhaoo Singh at about 5 p.m. all the 12 accused named above who were standing near the house of Jhaoo Singh surrounded him and started beating him. On the alarm raised by Genda Singh, his son Roshan Singh (deceased) Vikram Singh, Sardar Singh, Chhida (P.W. 5), Ram Chandra (P.W. 3), Sukhram, Zafar, Rupa, Hem Raj Singh reached there to save him. Whereupon the accused also caused injuries to them.
(3.) IN this assault Genda Singh (P.W. 4), Ram Chandra (P.W. 3) Roshan, Vikram and Brijendra had received injuries. Roshan Singh had become unconscious on receiving the injuries. The accused after causing injuries and snatching the cattle had run away from thee places of occurrence and Genda Singh along with the injured persons came to his house. Shortly, thereafter, Ram Bux Singh (P.W. 2) the brother of Genda Singh returned from the jungle at the house of Genda Singh in a he after curtaining the facts of the occurrence from the injured left for police station blooding the F.I.R. but he came back to his house apprehending danger from the side of the accused who had blocked the way to the police station. The injured remained in the house of the complainant without any medical aid during the night. Next morning Ram Bux Singh took all the injured to Moradabad by train and while going on rickshaw in the City of Moradabad to police station Kotwali for lodging the report, he got the report of the occurrence typed by a typist on a shop on the way at Ghurhatti crossing and, thereafter, he reached the police station Kotwali where he handed over the report at 11.05 a.m. to the police constable Jai Narain (P.W. 6) who prepared the chik report and also registered a case under section 307/147 I.P.C. against all the 12 accused. The injured were sent from the P.S. Kotwali to the District Hospital, Moradabad where they were examined between 11.30 a.m. and 12.45 pm. All the injured except Genda Singh were, examined by Dr. Kuldeep Sagar. The injuries of Genda Singh where examined by Dr. K.S. Dong at the District Hospital. The doctor found the following injuries on the person of Genda Singh (P.W. 4): 1. A wound (incised) 1 x 1/10 x muscle deep on the R t. side of forehead Rt. above the Rt. eye brow. 2. A Contusion 3" x 3 1/2 '' on the back of Rt. palm extending from the wrist joint to root of fingers. 3. A Confusion 2 1/2" x 2" on the back of Rt. fore arm on the lower part underlying bone suspected to be fractured. 4. A confusion 2 1/2 '' x 2" on the back of left forearm in the lower 1/4 area underlying bone suspected to be fractured. 5. Multiple gun shot wounds each 1/8" in diameter in an area of 6" x 4" on the left buttock. Margin lacerated and inverted. No blackening and scorching present. The wounds are skin and muscle deep wound of entrance. 6. Multiple gun shot wounds 1/8 '' in diameter x skin and muscle deep in an area of 4" x 4" on the Rt. buttock. Margins lacerated. No blackening and scorching present. The condition of Roshan Singh continued to be serious and he did not regain consciousness in the District Hospital, Moradabad and consequently he was shifted from the District Hospital Moradabad to Safdarjang Hospital, New Delhi where he, was admitted on 27.8.73 at 6 p.m. Roshan Singh succumbed to his injuries in the hospital on 4.9.73 at 7.45 a.m. Dr. B.D. Mukhija, Medical Officer of Safdarjang Hospital conducted the autopsy on the dead body of Roshan Singh on 6.9.73 and found the following injuries on his person: (1) Stitched wound scalp Rt. parietal area 2" long. (2) Lacerated wound tip of left little finger. (3) Multiple rounded healing wound on the back of Rt. index finger all over and has e of Rt. Middle finger. The diameter of injuries is 2/10" to 3/10". The cust is deposited on the wounds. On cutting these wound four pellets were recovered in soft tissue which were preserved and (paper torn) for further investigation. There is no fracture 2nd Metacarpal bone or any other bone (paper torn) wound. (4) Stitched wound over left skin (paper torn) upper 1/3 size 1" x bone deep with fracture of both leg bones below the injury (paper torned). On reflecting the scalp three (paper torned) on the top of scalp standing on both (paper torned) parietal area. Skull bone (1) Three fissured fracture of (paper torned) Rt. thumb extending to right parietal (paper torn) parietal and left temporal bone (paper torned) extra dural (paper torned). Brain surface is brushed on Rt. cerebral hemisphere. Neck tissue normal. Trachea normal. Hypid bone normal. Chest wall normal. Heart N.A.D., Lungs N.A.D. Liver N.A.D. Spleen, Kidneys N.A.D. Stomach Empty normal. Intestine distended with gases and faecal matter. Rectum bladder empty. Injuries on hand (3) are possible by firearm. Other injuries by blunt object. According to the opinion of the doctor the cause of death was due to intra -cranial Haemorrhage. Nathu Singh appellant lodged the report Ex. Kha. 2 at the Police Station Bhagatpura at 12.20 p.m. on 25.8.73. On the has is of the report, Mahabir Singh (P.W. 1) prepared the chic report and also registered a case under sections 323/147/J48 I.P.C., against 9 persons including Genda Singh (P.W. 4), Ram Chander (P.W. 3) and Roshan Singh deceased. He also sent Latoor Singh, Har Karan, Smt. Sukhdei, Narain Singh, Kishore Singh and Chhatrapal Singh for medical examination. Dr. Kuldip Sagar examined the injuries of Latoor Singh and others between 4.40 to 6.30 p.m. on 25.1.78. The injury reports are Exts. Kha. 4 to Kha. 8. Injuries of Latoor Singh are as under : (1) Incised wound 2 1/2 '' x ¼" x bone deep on the right side of parietal area 5" above the right ear. (2) Incised wound 1" x ¼" below the elbow joint. It was surrounded by swelling 2 1/2" x 2 1/2 '' around it. (3) Contusion 2 1/2" x ¾" on the upper part of the left shoulder. Injuries No. 1 and 2 were kept under observation by the doctor. Injury No. 3 was simple. Injuries No. 1 and 2 were caused by same sharp pointed weapon like Ballam and injury No. 3 was caused by some blunt weapon. On the person of Har Karan the doctor found the following injuries: (1) Lacerated wound 2 '' x 1/2" x bone deep on the right -parietal area of the skull 3" above the right ear. (2) Contusion 10" x 1/2" on the upper part of the back: covering both sides. (3) Contusion 5 '' x ¾" on the lower part of the left scapula region. (4) Complained of pain in left arm but there was no visible mark of injury. The doctor kept injury No. 1 under observation. Rest of the injuries were simple All the injuries were caused by some blunt weapon like lathi or Danda. On the person of Smt. Sukh Dei the doctor found the following injuries: - (1) Contusion 3" x 2¾" on the back of the left palm. (2) Contusion 2 1/2" x 2 1/2" on the back of the left elbow joint. Both the injuries were simple and were caused by some blunt weapon. On the person of Narain Singh the doctor found the following injuries: - (1) Lacerated wound 1 1/2" x ¼" x bone deep on the right parietal area of skull 2¾" above the right ear. (2) Incised wound 3" x ¼" x bone deep on the front middle part of the right leg. (3) Incised wound 1" x ¼" x skin deep on the front upper quarter part of the left leg. (4) Traumatic swelling 5" x 4" on the light shoulder joint. The doctor kept injury No. 1 under observation. Rest of the injuries were simple. Injury No. 1 and 4 were caused by some blunt weapon and injuries Nos. 2 and 3 were caused by some sharp edged weapon. On the person of Kishori Singh the doctor found the following injuries: (1) Lacerated wound 2" x ¼ '' x bone deep on the upper part of the head in the middle. (2) Lacerated wound 1" x 2/10" x bone deep on the back of head 2 1/2" behind injury No. 1. (3) Incised wound 1/2" x ¼ '' x muscle deep on the back of the left forearm 3¼" above the wrist joint. (4) Incised wound ¾" x ¼ '' x muscle deep on the back of the left fore -arm 3 '' above the injury No. 3. (5) Traumatic swelling 3 '' x 3" on the back of the lower part of the elbow joint. Injury No. 5 was kept under observation by the doctor. He advised X -ray. The rest of the injuries were simple. Injuries No. 3 and 4 were caused by some sharp edged weapon and, the rest were caused by some blunt Weapon." On the person of Chhatar Pal Singh the Doctor found the following injuries: (1) An incised wound 2¼" x ¼" bone deep on the back upper part of the bead covering both sides. (2) Abraded contusion 1 1/2" x ¾ '' on the upper part of the left shoulder joint. (3) The patient complained of pain in right forearm though there was no visible injury. ;