N. S. Gupta, J. - (1.) ACCUSED appellant Roop Chand named above along with nine others, viz., Kalyan Das, Hukum Singh, Israil, Raman, Lallu, Dulhey Ram, Bhagwan Singh, Pratap and Yad Ram were put on trial before the Sessions Judge, Mathura under Section 147/148/302/307/149, I.P.C. relating to Case Crime No. 89 of 1977 of police station Kosi Kalan, district Mathura (U. P.). Sri O. P. Mehrotra, the then learned Sessions Judge, Mathura vide his judgment and order dated 17.3.79 found (1) Kalyan Das, (2) Pratap, (3) Roop Chand, (4) Israil and (5) Dulhey Ram guilty for offence punishable under Section 302/149, I.P.C. He convicted and sentenced each of them to imprisonment for life. These five accused persons were further found guilty for the offence punishable under Section 307/149, I.P.C. and were sentenced to undergo imprisonment for five years each. They were further held guilty for the offence punishable under Section 148, I.P.C. and were sentenced to undergo R.I. of two years each. All these sentences were made to run concurrently. ACCUSED Raman (6) was found guilty for the offence punishable under Section 148, I.P.C. and was sentenced to undergo R.I. for one year. ACCUSED (7) Hukum Singh, (8) Bhagwan Das, (9) Dulhey Ram and (10) Yad Ram were found guilty for the offence punishable under Section 147, I.P.C. and were sentenced to undergo imprisonment for a period of six months each. Aggrieved by the said order of conviction and sentence, four appeals were preferred before this Court. They were Criminal Appeal No. 957 of 1979, which was preferred by accused Kalyan Das and Hukum Singh, Criminal Appeal No. 958 of 1979 was preferred by Bhagwan Singh, Pratap Singh, Dulhey Ram, Yad Ram and Roop Chand, Criminal Appeal No. 900 of 1979 was preferred by Israil. Raman and Lallu and Criminal Appeal No. 1151 of 1979 was also preferred by Hukum Singh and Kalyan Singh. Since all these appeals arose out of one and the same judgment, they were heard together and were dismissed by Hon'ble N. L. Ganguly and Hon'ble R. N. Ray, Judges of this Court. Out of these appellants Roop Chand went up before the Hon'ble the Supreme Court of India and filed Criminal Appeal No. 782 of 1997 which was remanded to this Court with the following observations : ".......................We find that the High Court has not at all detailed, much less discussed, the material evidence adduced by the parties before upholding the convictions recorded by the trial court. As the Court of appeal, the High Court was required to reappraise the material evidence keeping in view the respective cases of the parties before arriving at its own finding on the merits of the appeal. Since in the instant case, the High Court has failed to discharge its such obligations, we set aside the impugned judgment on this score alone and remand the matter to the High Court to rehear the appeal of the appellant Roop Chand only, and dispose of the same in accordance with law. Since the appellant is in custody, we request the High Court to comply with this direction as early as possible preferably within a period of three months from the date of communication of this order. In the meantime the appellant will continue to remain in jail. In case, however, for unavoidable reasons the appeal cannot be disposed of within the stipulated period, the appellant may pray for bail before the High Court and if such prayer is made, the High Court will consider the same on its merits."
(2.) IN accordance with the aforesaid directions of the Hon'ble Supreme Court, we afforded the opportunity of being heard to the accused appellant Roop Chand, the State and the complainant. Arguments on behalf of the accused appellant Roop Chand were advanced before this Court by Shri. A. D. Giri, learned Senior Advocate ; on behalf of the State Shri V. B. Singh, A.G.A. had made his submissions and Shri G. S. Chaturvedi, Senior Advocate of this Court made submissions on behalf of the complainant. We have heard the learned counsel at considerable length and proceed to dispose of the appeal as against Roop Chand only as under. The case of the prosecution briefly stated was as follows : "There was a temple of Mohanji in village Kamar, police station Kosi Kalan, district Mathura. This temple owned about three acres of land which was situate in village Halwana near the minor of a canal. Formerly one Baba, Kishandas was the Mahant of this temple. After his death, a dispute arose in between the accused Kalyan Das, Kunj Behari and Janki regarding Mahantship. This dispute was decided in favour of Kunj Behari, but was pending before the appellate court at the time of the occurrence of this case. On account of the dispute of Mahantship, the land owned by the temple used to be let out by the villagers to the highest bidders, the amount of which was to be given to the person who ultimately succeeded in the dispute regarding Mahantship. During the year in question, this land was leased out to Balli and Shree Ram for two years for a sum of Rs. 1,300. Out of which they had paid a sum of Rs. 650 Balli and Shree Ram were in cultivatory possession of the said land at the time of the occurrence of this case. The occurrence of this case took place at about 10-10.30 p.m. on 1.4.77 in village Hulwana, police station Kosi Kalan, district Mathura. The prosecution claimed that Balli and Shree Ram who had sown barley crop into the said field and which crop was ripe for harvesting received information that Kalyan Das and his men were out to harvest the said crop during night which was the moonlit night, just a day before purnamasi, i.e., full moon night. Balli and Shree Ram, therefore, approached Ballabh (deceased), his brother Kishan P.W. 3 and Amichand (deceased) who was their partner and sought their help. Thereupon Ballabh, Kishan and Amichand proceeded towards those fields. Shree Ram, Toti, P.W. 1, Roopi, P.W. 4, Chatar and Ram Gopal followed them. While they were at some distance from the field in question, they saw the aforesaid accused persons standing near the canal. According to the prosecution, accused Kalyan Das, Pratap and Roop Chand were armed with country-made pistols. Accused Israil, Dulhey Ram were armed with guns, accused Raman was armed with Bhala, while accused Yad Ram, Lallu, Bhagwan Das and Hukum Singh were armed with lathis. When Ballabh (deceased) asked these accused persons as to why they were out to harvest the crop sown by the poor persons like Balli and Shree Ram and tried to pacify the accused persons, Kalyan Das asked Ballabh as to how they were unnecessarily meddling into the matter. He ordered his companions to kill them. Thereupon, Kalyan Das, Pratap, Roop Chand, Israil and Dulhey Ram opened fire from their respective weapons which were country-made pistols and guns, causing injuries to Ballabh (deceased), Amichand (deceased) and Kishan, P.W. 3. The accused persons thereafter ran away. This occurrence was witnessed by Toti, P.W. 1, Roopi, P.W. 4, Chatar and Ram Gopal. Ballabh died on the spot while Amichand succumbed to his injuries after three days in the hospital and Kishan, P.W. 3 sustained simple injuries. Toti, P.W. 1 who was the son of deceased Ballabh after arranging a tractor, took his deceased father and the two injured persons, viz., Amichand and Kishan to Kosi Hospital which lay at a distance of about 7 miles from the place of occurrence. At the hospital, he got first information report written (Ex. Ka 1) by Man Singh and lodged the same at about 2.00 a.m. on 2.4.77 at police station Kosi Kalan which lay near the hospital at a distance of about 7 miles from the place of occurrence."
(3.) S.I. Vidya Ram, P.W. 7, who was then working as Sub-Inspector of Police at police station Kosi Kalan immediately took up the investigation of the case. He immediately recorded the statement of Toti, P.W. 1 and three other witnesses and at about 6.05 a.m. he along with another S.I. and two police constables went to Kosi Hospital. He found the dead body of deceased Ballabh in the trolley of tractor at the hospital. He prepared inquest report in respect of the dead body of Ballabh and after preparing necessary papers sent it for post-mortem examination through constable Kishori Lal, P.W. 2. He, thereafter inspected the spot and prepared site plan Ex. Ka. 16. He recovered bloodstained earth and simple earth from the scene of occurrence and prepared recovery memos, Ex. 8 and 9 about the same. He recorded the statement of Roopi, P.W. 4 and other witnesses. He tried to apprehend the accused persons, but to no avail. On spot inspection he found that the minor of the canal was about 9-10 paces wide and 4-5 paces deep. There was a patri on both side of this minor. Subsequent investigation into the matter was conducted by the Station Officer Suresh Chandra Katiyar, P.W. 8 and S.I. Mohan Singh, P.W. 9 who submitted charge-sheet against the accused persons. At the trial the accused-appellant pleaded not guilty. The learned Sessions Judge, however, believed the contention of the prosecution and convicted and sentenced the accused persons. Thus the appeal. It appears that during the pendency of the appeal before the High Court, accused-appellant Kalyan Das, Israil, Dulhey Ram and Pratap had died. Their appeals had, therefore, abated. Since this appeal was remanded by Hon'ble the Supreme Court for hearing as against accused Roop Chand only, we confined our discussions regarding the role played by the accused Roop Chand only in the occurrence of this case.;