- (1.) PRAFULLA C. Pant, J. These three appeals, are directed against the judgment and order dated 20-03-1998, passed by learned Addi tional Sessions Judge, Roorkee, in Ses sions Trial No. 45 of 1996 and Sessions Trial No. 44 of 1996. By the impugned judgment and order, the trial court has convicted appellants Priiam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh under Sections 148, 302 read with Section 149 and under Section 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred as I. PC.), and each of the convicts has been sentenced to undergo rigorous im prisonment for a period of three years (under Section 148 of I. PC.); rigorous imprisonment for a period of ten years and to pay fine of Rs. 5,000/-, in default of payment of which six months rigor ous imprisonment (under Section 307 read with Section 149 of I. P. C.) and im prisonment for life and to pay fine of Rs. 10,000/-, in default of payment of which rigorous imprisonment for a period of one year (under Section 302 read with Section 149 of I. P. C. ).
(2.) HEARD learned counsel for the parties and perused the entire evidence on record. The prosecution story in brief is that Jai Singh (P. W. 3) and Bhanwar Singh purchased half bigha abadi land in Village Makdumpur from one Vijay Kumar, and after the sale deed was ex ecuted they occupied the land. On this, appellant Charan Singh instituted a civil suit against Jai Singh and Bhanwar Singh, but failed to get any interim or der in his favour. On the day of incident i. e. 22-10-1995, P. W. 3, Jai Singh;p. W. 4, Biram Singh (injured), Isham Singh (deceased); P. W. 5 Satish Kumar (injured) and FW. 6, Karan Singh (com plainant) were raising constructions over the land purchased by Jai Singh and Bhanwar Singh. At about 04:00 PM. , accused/appellants namely Pritam Singh, Pawan Singh, armed with gun; accused / appellants Charan Singh and Ved Pal, armed with country made pis tols; and accused / appellants Manga @ Mangey Ram and Naresh, armed with pistols, reached at the land in dispute and after hurling abuses at the aforesaid witnesses and the deceased, fired at them. Complainant Karan Singh and P. W. 3, Jai Singh took shelter behind the wall under construction and could save them, but Isham Singh (deceased), P. W. 4, Biram Singh and PW. 5 Satish Kumar received firearm injuries in the incident and got seriously injured. P. W. 2, Seth Pal also witnessed the incident. All the three injured were rushed to Roorkee hospital, and first information report (Ext. A-3) was lodged with police station Jhabreda, by Karan Singh at about 06:30 P. M. , on the same day. A check report (Ext. A-4) of said first informa tion report was prepared by P. W. 7, Con stable Jai Pal Singh, who made neces sary entry in the general diary, extract of which is -Ext. A-5. P. W. 9, Sub Inspec tor A. S. Khan took up the investigation. He got the inquest report (Ext. A-12) prepared by Sub Inspector Data Ram on 23-10-1995, at 11:15 A. M. , who further prepared sketch of the dead body (Ext. A-13), police form No. 13 (Ext. A-15), letter to the Chief Medical Officer requesting for postmortem examination, in form No. 33 (Ext. A-14 ). P. W. 11 Constable Ram Bir along with Consta ble Chet Ram took the dead body for postmortem examination. P. W. 8, Dr. B. K. Gairola conducted the postmortem examination on 23-10-1995, at 02:30 RM. , and prepared the autopsy report (Ext. A-10 ). The said Medical Officer took out the pellets from the dead body and prepared separate report (Ext. A-11 ). One empty cartridge which was found of 315 bore by Sub Inspector Data Ram from the place of incident, and memorandum Ext. A-17 was pre pared. During the investigation, a coun try made pistol of. 12 bore is said to have been recovered on 1/-11-1995 from accused / appellant Naresh. A separate crime was registered in respect of said recovery (however, from the charge of offence punishable under Sec tion 25 of the Arms Act, accused Naresh has been acquitted by the trial court ). P. W. I, Dr. Ajay Aggarwal re corded the injuries on the person of in jured Biram Singh (P. W. 4) and Satish Kumar (P. W. 5) after the incident on 22-10-1995, at about 06:40 P. M. , when they were brought to the hospital regard ing which the Medical Officer prepared injury reports Ext. A-l and Ext. A-2. The Investigating Officer after complet ing the investigation submitted charge sheet (Ext. A-20) against all the six ac cused namely Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh, relating to offences punishable under Section 147,148,149, 307 and 302 of I. P. C. The Magistrate, on receipt of the charge sheet, after giving necessary cop ies to the accused, as required under Section 207 of the Cr. P. C. , committed the case to the court of Sessions, for trial. Learned trial court, after hearing the parties, framed charge against all the six accused namely Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh, on 18-12-1996, relating to offences punishable under Section 148 of I. P. C. ; under Section 302 read with Section 149 of I. P. C. and one punishable under Section 307 read with Section 149 of I. P. C. All the accused (present appellants) pleaded not guilty and claimed to be tried. (As against accused Naresh charge of of fence punishable under Section 25 of Arms Act was separately framed in re spect of connected Sessions Trial No. 44 of 1996, which was also denied by said accused ). On this, prosecution got exam ined P. W. 1, Dr. Ajay Aggarwal (who examined the injuries on the person of injured namely Biram Singh and Satish Kumar); P. W. 2, Seth Pal (eyewitness); P. W. 3, Jai Singh (eyewitness); P. W. 4 Biram Singh (injured/eyewitness); P. W. 5, Satish Kumar (injured/eyewitness); P. W. 6, Karan Singh (eyewitness and complainant); P. W. 7, Constable Jaipal Singh (who prepared the check report (Ext. A-4) of the F. I. R. lodged at the police station Jhabreda and made nec essary entry in the general diary, copy of extract of which is Ext. A-6); P. W. 8, Dr. B. K. Gairola (who conducted the au topsy on dead body of deceased Isham Singh and prepared the report Ext. A-10); P. W. 9, A. S. Khan (Investigating Officer); P. W. 10, Sub Inspector Santosh Kumar (who investigated the crime re lating to 25 Arms Act against accused Naresh); P. W. I 1, Constable Rambir Sharma (who took the dead body of the deceased in a sealed condition after the inquest report was prepared for the post mortem examination); P. W. 12, Head Constable Dheeraj Pal Singh (witness who made entries in the general diary relating to information received from Saharanpur about the arrest of accused Pritam Singh); P. W. 13, Jasbeer (witness of recovery of pistol from accused Naresh) and P. W. 14, Sub Inspector Dalbir Singh (who obtained the sanction (Ext. A -24) from the District Magistrate to prosecute Naresh under Section 25 of Arms Act ). The entire oral and docu mentary evidence were put to the ac cused under Section 313 of Cr. P. C. by the trial court, which they alleged to be false. However, no evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found that though the recovery of pis tol from accused Naresh was not proved and it is not proved that the recovered pistol was used in the crime, but as far as charge of offences punishable under Section 148 of I. P. C. , under Section 302 read with Section 149 of I. P. C. and one under Section 307 read with Section 149 of I. P. C. are concerned, the same are found proved against all the six ac cused namely Pritam Singh, Pawan Singh, Charan Singh, Ved Pal Singh, Manga @ Mangey Ram and Naresh. They were accordingly convicted vide judgment and order dated 20th March 1996, passed in Sessions Trial No. 45 of 1996, and after hearing on quantum of sentence, the trial court sentenced each one of the accused to undergo rigorous imprisonment for a period of three years under Section 148 of I. P. C. ; imprison ment for life and also to pay fine of Rs. 10,000/- under Section 302 read with Section 149 of I. P. C. and rigorous im prisonment for a period of ten years and to pay fine of Rs. 5,000/- under Section 307 read with Section 149 of I. P. C. In default of payment of fine in respect of offence punishable under Section 302 of I. P. C. , the defaulter was directed to un dergo rigorous imprisonment for further period of one year and on default of pay ment of fine in respect of offence pun ishable under Section 307 of I. P. C. , the defaulter was directed to undergo rigor ous imprisonment for a further period of six months. Aggrieved by said judgment and order dated 20th March 1996, passed by the trial court (Additional Ses sions Judge, Roorkee), in Sessions Trial No. 45 of 1996, these appeals were pre ferred by the convicts before the Allahabad High Court, from where the same have been received by transfer to this Court under Section 35 of the U. P Re-organization Act, 2000, for their dis posal.
(3.) ACCORDING to the prosecution story all the six appellants armed with deadly weapons (firearms) fired at the Isham Singh (deceased) and injured Satish Kumar and Jai Singh, when they along with other eyewitnesses were rais ing a wall over the land purchased by Jai Singh and Bhanwar Singh. Before further discussion, it is therefore, perti nent to mention here the injuries received by the witnesses. ACCORDING to PW. 1 Dr. Ajay Aggarwal, following injuries were found on the person of Satish Kumar, at 06. 40 RM. , on 22-10-1995, in re spect of which report Ext. A-l was pre pared by him : i) Multiple gunshot wound in an area of 15cm x 8 cm on post as pect of lower part of left upper arm going upto left elbow (about 10 in number) varying in size from 2 mm x 2 mm to 2 mm x 5 mm; some rounded and some oval in shape, bleeding present. ii) About five gunshot wound in the left buttock varying in size from 0. 2 cm x 0. 2 cm to 2 cm x 0. 3 cm in an area of 20 cm x 20 cm. iii) Multiple gunshot wound varying in size from 0. 2 cm x 0. 2 cm to 0. 2 cm x 0. 4 cm on whole of back (about 14 in number), bleeding present. In the opinion of the doctor all the injuries were caused by firearm and they were fresh. The same Medical Officer (P. W. 1 Dr. Ajay Aggarwal) examined the injuries on the person of Biram Singh, at about 07:00 RM. at the same Civil Hospital Roorkee, and prepared report Ext. A-2, which shows following injuries : i) Multiple gunshot wound over front of face and forehead vary ing in size from 2 mm x 2 mm to 2 mm x 3 mm with swelling right mandibular region 10 cmx 5 cm, bleeding present. ii) Gunshot wound about 05 in number over right side of neck varying in size from 2 mm x 2 mm to 2 mm x 3 mm in an area of 13 cm x 8 cm extending from just right to supra strand notch to right sub mandibular area. Hi) Multiple gunshot wound varying in size 2 mm x 2 mm to 2 mm x 3 mm (about 05 in number) on anterior medial aspect of right upper arm in an area of about 18 cm x 10 cm. iv) Multiple gunshot wound varying in size 2 mm x 2 mm to 2 mm x 3 mm on right forearm on postaro medial aspect in an area of 2. 5 cm x 15 cm. v) Gunshot wound 2 mm x 2 mm at base of right little finger on posterior aspect. vi) 2 gunshot wound 2 mm x 2 mm in an area of right lumber region (on front ). vii) Lacerated wound 0. 2 cm x cm x muscle deep on right hypothander. viii) Abrasion 1 cm x 1 cm on the front of right ankle. In the opinion of the Medical Of ficer injuries No. (i) to (vi) were caused by the firearm and were fresh. Now, it is also relevant to men tion here the ante mortem injuries found on the person of the deceased (Isham Singh) by Dr. B. K. Gairola (P. W. 8), who prepared the autopsy report (Ext. A-10) after postmortem examination, at 02:30 RM. , on 23-10-1995. The same are be ing reproduced below : i) Two firearm wound of entry near to each other 0. 7 cm x 0. 5 cm average in size on the right side of neck (in front), 2 cm above inner end of right clavicle. ii) Four firearm wound of entry, in an area of 10 cm x 6 cm at the upper end of chest (in front) near the right shoulder of aver age size 0. 5 cm x 0. 5 cm. iii) Fourteen firearm wound of en try in an area of 9 cm x 6 cm of average size 0. 5 cm x 0. 5 cm in front and on the right side of the chest. iv) Firearm wound of entry 0. 5 cm x 0. 5 cm on right and upper side of abdomen 5 cm above umbili cus at 11 O clock position. v) Four abrasions of average size II 2 cm x cm on the back of right wrist and in dorsum of right hand. vi) Abrasion cm x cm in front of upper part of chest, 4 cm above left nipple at 1 O'clock position. vii) Abrasion 0. 5 cm x 0. 5 cm on upper part of left shoulder. vii-a) Abrasion cm x cm in front of left arm 9 cm below left shoulder. viii) Firearm wound of entry 1 cm x cm on the back of the left middle finger 1. 5 cm from the base of nail. ix) Firearm wound of exit cm x 1 cm in front of left middle fin ger 2. 5 cm from the distal end and corresponding to injury No. (viii ). x) Abrasion 1 cm x 1 cm at the junction of left middle and ring fingers. xi) Abrasion cm x 0. 2 cm on the side of left ring finger at the top. xii) Abrasion 1 cm x cm at the base of left little finger. On internal examination, the pleura was found lacerated, right lung was found lacerated; pallets were taken out from the internal parts of the body. In the opinion of the Medical Officer, who conducted the postmortem examination, the deceased had died due to shock and haemorrhage, as a result of ante mortem injuries.;