N. S. Gupta, J. - (1.) -This is a Government appeal against the judgment and order of acquittal dated 1.8.1980, passed by Sri B. K. Misra, the then IIIrd Additional Sessions Judge, Shahjahanpur, in Session Trial No. 648 of 1978, acquitting the accused-respondents named above for the offences levelled against them under Section 302/147/148/149, I.P.C.
(2.) THE prosecution story briefly stated is as follows : "THE complainant Gajadhar was a resident of village Piparia, police station Sehramau (North), district Shahjahanpur. THE accused-respondents were also residents of the same village. THE accused-respondents are said to be the close associates of each other. THE prosecution claimed that 6-7 days prior to the occurrence of this case, accused-respondent Balak Ram and Ishwari had beaten Sarojini the sister of Gajadhar, P.W. 1. Gajadhar and his sister Sarojini brought this matter to the notice of their father Sunder Lal (deceased). When Sunder Lal (deceased) intended to lodge a report about that matter, all the accused-respondents are said to have threatened him. THE incident of this case relates to 26.7.78, at about 4.00 p.m. when the deceased Sunder Lal along with his son Gajadhar, P.W. 1 and son-in-law Rameshwar, P.W. 2 were sitting in front of the door of their house situate in village Piparia. THE accused-respondents formed an unlawful assembly with the common object of assaulting Sunder Lal (deceased) and in prosecution of their common object, they assaulted Sunder Lal (deceased) by means of Lathis and Suja. THE accused-respondents, Ishwari, Ram Swaroop, Bandho and Khyali were armed with lathis and Balak Ram was armed with a Suja, which was a pointed instrument. When Gajadhar, P.W. 1 and his brother-in-law Rameshwar, P.W. 2 came to the rescue of Sunder Lal (deceased), they too were assaulted. On an alarm being raised, other villagers like Banwari, Nand Ram and Param Sukh reached at the scene of occurrence. THE accused-respondents made good their escape. Gajadhar, P.W. 1 took his father Sunder Lal to the police station Sehramau (North) in a bullock cart on the next day and there he lodged a written report about this occurrence. On the basis of which case Crime No. 63A, under Section 147/148/304/323, I.P.C. was registered by the Head Constable Raghunath Singh. S.I. Suraj Mal, P.W. 5, who was then present at the police station prepared inquest report Exh. Ka.-5, in respect of the dead body of the deceased and sent the same for post-mortem examination to mortuary at Shahjahanpur as per letter Exh. Ka.-8 and other necessary papers, where Dr. B. C. Pal, P.W. 3 performed the autopsy on the dead body of the deceased on 29.7.78. Dr. Pal found the position of the deceased as under : The deceased was aged about 65 years. About two and half days had passed to his death. His body was average built. Rigor mortis had passed of from whole of the body. Whole of the body was swollen due to decomposition. Colouration was present over whole of abdomen. Skin peeled off in various places. Maggots present on whole of the body. Eyes were closed. Eye balls were partly eaten up. Mouth closed. Dr. Pal found the following ante-mortem injuries on the dead body of the deceased : (1) Lacerated wound 3 cm. 1/4 cm. bone deep centre of skull, 2 cm. left of mid-line. (2) Lacerated wound 2 cm. 1/2 cm. bone deep 1-1/2 cm. back to injury No. 1. (3) Lacerated wound 2-1/4 cm. 1/2 cm. bone deep, 4 cm. below injury No. 1. (4) Punctured wound 1-3/4 cm. 3/4 cm. 3 cm. in front of left leg, 10 cm. below knee. On internal examination, Dr. Pal found haemorrhage on the centre of left side of skull. Multiple communicating depressed fracture of left parietal bone. He found that the brain was haemorrhaged because of the fracture of left parietal bone. Lungs were congested. Dr. Pal opined that the deceased had died due to coma, which had resulted from the aforesaid ante-mortem injuries.
(3.) P.W. 5, Suraj Mal was working as S.O. Sehramau (North) till 26.7.78. He, however, left the charge of that police station on 26.7.78, but was present there on 27.7.78. He was present at the said police station when the dead body of the deceased was brought by his son Gajadhar at about 12.45 noon on 27.7.78. Since the headconstable present at the police station was not empowered to prepare the inquest, he prepared inquest report in respect of the dead body of the deceased and after preparing the inquest papers, he sent the same for post-mortem examination to Mortuary at Shahjahanpur through constable Santosh Kumar and Ram Swaroop. Further investigation was made by S.I. Bharat Singh who inspected the scene of occurrence on 29.7.78 and submitted a charge-sheet against the accused-respondents on 18.8.78. The accused-appellants were committed to stand trial before the Court of Session by Sri B. M. Joshi, the then Judicial Magistrate, Shahjahanpur, vide order dated 8.12.1978. After committal proceedings, the accused-appellants came up for trial before IIIrd Additional Sessions Judge, Shahjahanpur who framed charges against the accused-respondents Ishwari, Ram Swaroop, Bandho and Khayali under Section 147/302/323/149, I.P.C. and against accused-appellant Balak Ram under Section 148/302/323/149, I.P.C. The accused-appellants pleaded 'not guilty' to the charges framed against them and claimed trial. The accused-respondents denied to be belonging to one and the same party. They denied their participation in the occurrence in question in the manner suggested by the prosecution and maintained that they were falsely implicated into this case.;