Chandra Dhari Singh, J. - (1.) Heard Sri Sushil Kumar, learned counsel for the appellants and Sri Arunendra Kumar Singh, learned A.G.A. for the State and perused the record.
(2.) This instant jail appeal has been preferred against the judgment and order dated 05.08.1983, passed by the Special Judge (E.C. Act), Aligarh in Session Trial No.51 of 1982, by which the accused-appellants had been convicted for offence punishable under Section 147 I.P.C. and sentenced them to undergo one year's rigorous imprisonment under Section 323 read with Section 149 I.P.C to undergo one year's rigorous imprisonment and to undergo life imprisonment under Section 302 read with Section 149 I.P.C. Further convicting Gyan Singh alias Ginna also under Section 354 I.P.C. and sentencing him to undergo one year's rigorous imprisonment. All the sentences shall run concurrently.
(3.) Brief facts of the case. (I) The story of the prosecution is that a written F.I.R. Ex.Ka-1 was lodged by Smt. Lilawati at P.S. Atrauli on 16.03.1981 at 9:10 p.m. According to Ex.Ka-1 complainant Smt. Lilawati is a resident of village Malahour. On 16.03.1981 at about 10:00 a.m. in the morning her daughter Suman aged about 18 years went to village Ganeshpur for the purposes of cleaning latrines as the complainant is Harijan by caste. She was followed by Ginna son of Bharat Singh. When she reached near the filed of Prem Shanker Ginna tried to molest her and with an intention to commit rape he caught hold of her. Suman came back to her house weeping and she narrated the story to her parents. The complainant, her husband, Suman and one Damodar went to Bharat Singh who was present on his tube-well immediately and complained about the incident who (Bharat Singh) started abusing them. He also beat them with lathi and thereafter the complainant and other members went to police station Atrauli to lodge the report. While they were on the way to police station Ram Singh son of Khubi, Sheoran son of Khubi, Munshi son of Bhanu, Ranvir son of Netram, Bhartiya son of Ram Singh, Kripal Singh son of Jangali, Chhuttan son of Sultan Singh, Pramod Singh, Biri Singh, Nidar son of Surajpal and Ginna son of Bharat Singh armed with lathis and others came and stopped them near bus stand from going to police station. The complainant and her other family members were caught hold by them and they brought them at the tube-well of Bharat Singh. They were saying that they would beat them at their own tube-well (Engine). Bharat Singh ordered to kill the complainant and her family members who are Harijan by caste, on which all of them beat them with lathis. On account of the said beating Ram Lal succumbed to his injuries at the spot. Damodar and others received injuries. This occurrence was witnessed by Munshi, Dhoom Singh and Deep Chand who came there. The occurrence was also witnessed by other persons. According to written report Ex.Ka-1 dead body of Ram Lal was lying on the spot and the complainant along with Rana went to police station to lodged the report. It is further narrated that miscreants also out fire in the house of the complainant. (II) On the basis of Ex.Ka-1, chick F.I.R. Ex.Ka-2 was prepared. According to chick F.I.R. Ex.Ka-2 distance between the place of occurrence and the police station is seven miles. III. Case under Sections 147, 148, 323, 436, 354 and 302 I.P.C. Was registered against the accused through G.D. No.45 dated 16.03.1981, written at 9:10 p.m. at P.S. Atrauli, which is Ex.Ka-3. IV. According to Ex.Ka-3 investigation of the case was conducted by S.H.O. Badan Singh. The Investigating Officer along with police force went on the spot. Information of the occurrence was also given to the district authorities on wireless. V. The Investigating Officer prepared inquest report which is Ex.Ka-11. The dead body was sealed and the same was sent for post-mortem by S.I. Devendra Singh Yadav through constables 582 Snhari Lal and Constable No.1385 Kishan Pal which is Ex.Ka-13. VI. Post-mortem of the dead body was conducted by Dr. J.N. Singh (CW-1) on 18.03.1981. at 3:15 p.m. The following ante-mortem injuries were found on the body of the deceased Ram Lal :- (i) Lacerated wound 1" x 1/2" x bone deep on left side head middle part .4" from ear. (ii) Lacerated wound 1 " x 1/2" x bone deep on right side of head 4 " above to the right ear. (iii) Lacerated wound 1/4" x 1/4" x bone deep on right upper arm upper part with compound fracture of humerus bone shaft. (iv) Contusion with swelling on right writ post aspect 6" x 4" in area under neath both bone 8 are fractured. (v) Abraded contusion multiple in area of 6" x 2 " on post aspect of left forearm middle part. (vi) Traumatic swelling 1 " x 1" on dorsum of left hand. (vii) Abrasion 1" x 1/2" on left tibial region middle part. (viii) Traumatic swelling all around of right ankle region. (ix) Lacerated wounds ¾" x 1/2" x bone deep on right ankle region outer aspect with compound fracture of both bones (Tibia and Febula). CW-1 prepared post mortem report which is Ex.Ka-14. VII. According to G.D. No.45 (Ex.Ka-3) the injured were sent for medical examination, Mazrubi chitthi were prepared and Damodar, Lilawati and Suman were sent for medical examination. VIII. Smt. Lilawati, Suman and Damodar were medically examined by Dr. J.P. Garg who was Incharge, Primary Health Centre, Atrauli and prepared injury memos. Injury report of Smt. Lilawati is Ex.Ka-18, injury report of Suman is Ex.Ka-6. According to the doctor the following persons received the following injuries :- A. Injuries of Damodar : (i) A lacerated wound of about 6.5 cm. x 0.5 cm. x skin deep semi-circular in shapes over left side of skull 11.0 cm. above left ear. (ii) A lacerated wound of about 4 cm. x 2 cm. x skin deep over right side of head 12 cm. above and forward from right ear. (iii) A contusion of about 9 cm. x 5 cm. Over outer back side of left forearm 3 cm. below of left elbow joint. (iv) A contusion of about 10 cm. x 6 cm. over outer and back side of left forerarm 2 cm. above left wrist joint. (v) A contusion of about 7 cm. x 10 cm. over back of left hand. (vi) Four abrasions each measuring about 00.5 cm. x 0.5 cm. over an area of 3.0 cm. x 3 cm. over back of left hand. (vii) A lacerated wound of about 1.5 cm. x 0.5 cm. x over front of aspect of left index finger 2 cm. below of root of index. (viii) A lacerated wound of about 1 cm. x 0.3 cm. x skin deep over outer phalanged joint of ring and middle ginder of right hand. (ix) A lacerated wound of about 0.5 cm. x 0.2 cm. x skin deep on an outer aspect of right upper arm 1.5 cm. above right elbow joint. (x) An abrasion of about 1 cm. x 0.2 cm. over back of right elbow joint. (xi) Multiple abrasions of different size over an area of 10.5 cm. x 3.5 cm. over back and inner aspect of right forearm. (xii) A confusion of about 13.05 cm. x 9 cm. over back of right hand. (xiii) Multiple abrasions each measuring 2 cm. x 1 cm. over an area of right leg. (xiv) A contusion of about 10 cm. x 23 cm. over front of left knee. (xv) A horizontal contusion of about 25 cm. x 2.5 cm. of back of chest. (xvi) An oblique contusion of about 17.5 cm. x 2.5 cm. over back of chest. (xvii) A contusion of about 12 cm. x 2.0 cm. over back of wrist. (xviii) A contusion of about 20 cm. x 15 cm. over left shoulder. (xix) A contusion of about 10 cm. x 9 cm. on right shoulder. B. Injuries of Smt. Lilawati : (i) A lacerated wound of about 3 cm. x 1 cm. x skin deep over right side of skull 7.0 cm. above right ear. (ii) A contusion of about 11.5 cm. x 9.0 cm. over back of right shoulder bone. (iii) A contusion of about 6.5 cm. x 5.5. cm. over back of left shoulder bone. (iv) A contusion of about 8.0 cm. x 5.0 cm. over back of chest 3 cm. below from injury no.3. (v) A contusion of about 11.5 cm. x 6.5 cm. over back of right side of chin just below lower angle of right scapula. C. Injury of Smt. Suman : (i) An abrasion of about 1.0 cm. x 1.0 cm. over back of right upper arm 4.5 cm. above of right elbow joints. (ii) An abrasion of about 1.00 cm. x 0.2 cm. over upper surface of left foot. IX. The Investigating Officer took simple and plain earth from the place where the dead body was lying and the same was sealed in separate bundles. Memo to this effect was prepared which is Ex.Ka-8. Site plans were also prepared by the Investigating Officer which are Ex.Ka-9 and Ka-10. Statements of the witnesses were recorded and after completing the investigation the Investigating Officer submitted charge sheet which is Ex.Ka-7. Blood stained and simpel earth, the clothes which were on the body of the decesed were sent for chemical examination. According to chemical Examiner's report Ex.Ka-16, all the six articles had human blood having 'A B' group. Ash of burnt house of the complainant was also taken in possession. A memo to this effect was prepared by the Investigating Officer on 17.03.1981 which is paper no.7A. X. The charges under Sections 147, 323/149, 302/149 I.P.C. were framed against all the accused except Ginna on 10.03.1983. Charges under Sections 376/511, 147, 323, 149 and 302/149 I.P.C. was also framed against the accused Ginna on 11.03.1983. Charges were read over to the accused who pleaded not guilty. They stated that they were falsely implicated in the present case and pleaded for trial. XI. In order to prove its case, the prosecution has examined seven witnesses. The court summoned Dr. J.N. Singh, Medical Officer, Incharge Jail Hospital, Aligarh who was examined as CW-1 on 23.05.1983, who conducted post mortem on the dead body of deceased Ram Lal and proved post mortem report Ex.Ka-1A. No oral evidence has been produced in support of the defence version. XII. After appreciation of the evidence on record and other circumstances, the trial court had convicted the accused Bharat Singh, Kirpal Singh, Nidar Babu, Rajvir and Gyan Singh @ Ginna for offences punishable under Section 302 I.P.C. read with Sections 149 I.P.C, 323 I.P.C. read with 149 I.P.c. and Section 147 I.P.C. Accused Gyan Singh @ Ginna has further found guilty of an offence punishable under Section 354 I.P.C. He is also convicted under the said Sections. Accused Pramod, Yogendra @ Chhuttan, Ram Suli, Sheoraj Singh, Bhartia son of Ram Lal and Munshi were acquitted of all the Sections by giving benefit of doubt. Accused Ginna was also acquitted under Section 376 read with 511 I.P.C. XIII. The appeal filed on behalf of appellant no.2 Kripal Singh and appellant no.5 Gyan Singh @ Ginna has been abated in view of the order dated 19.11.2015 passed by this Court. Similarly, the appeal filed on behalf of appellant no.1 Bharat Singh has also abated in view of the order dated 27.11.2015 passed by this Court.;