Imtiyaz Murtaza, Ashwani Kumar Singh - (1.) THE present appeal stems from Sessions Trial No. 79 of 2007, wherein the accused persons namely Mathura Prasad and Dwarikadhish were tried by learned Additional Sessions Judge/F.T.C. II, Hathras for committing the murder of Satya Prakash Gautam. By the judgment and order dated 4.11.2008, the learned trial Judge convicted appellants under Section 302/34, I.P.C. and awarded capital punishment to each of them. THE appellants were further convicted under Section 307/34, I.P.C. and were sentenced to suffer R.I. for 10 years and a fine of Rs. 10,000 each.
(2.) THE author of the F.I.R. in the case is Sharad Gautam son of deceased Satya Prakash Gautam. THE occurrence is dated 17.3.2006 and is stated to have occurred at 10 a.m. According to the allegations encapsulated in the F.I.R., the deceased was an advocate practicing in the Tehsil Court at Sadabad and on the day of occurrence, he had set out on cycle for Sadabad from his house situated in village Saidaria P.S. Sahpau district Hathras. He was accompanied by Krishna Kumar son of Niranjan Lal , who was also going on the cycle side by side the deceased. When the deceased reached a place where from bhatta of Bhagwan Das was approximately 250 metres, an unmarked Bolero Jeep came from the opposite direction, the occupants of which were the appellants and out of them, one Basanta resident of village Saidaria who was driving the vehicle, rammed the Jeep into the cycle of the deceased and as a result, the deceased fell down on the ground. THEreafter, the accused persons it is alleged, emerged from the Jeep and assaulted the deceased on his head by means of lathi, danda and saria by propping his head in the hands and as a result, the head of the deceased was badly mauled. It is further alleged that Krishna Kumar who was accompanying the deceased, tried to rescue the deceased from further assault whereupon the accused persons namely, Mathura and Dwarikadheesh resorted to indiscriminate firing from their pistols which prevented him from proceeding further and therefore he retraced his steps and fled towards the village. It is further alleged that on way to village, he stumbled across the informant to whom, he narrated the incident. On being informed, the informant, it is further alleged, rushed to the scene of occurrence and saw the accused persons taking out cost from the body of the deceased and throwing it back on him. THEreafter, one of the accused Basanta took hold of the bag of the deceased. Upon seeing the crowd milling towards the place of occurrence, the accused persons escaped in the self same Jeep and while escaping the accused persons drove back the Jeep over the head of deceased twice. Attributing motive to the accused persons, it was alleged, the accused were persons of notorious antecedents and the deceased had made a complaint and had also filed a writ petition against them in the High Court. On getting information, the S. O. Sompal Singh of police station, Sahpau rushed to the scene of occurrence and commenced investigation. The Investigating Officer recovered a country made pistol with cartridge struck in the barrel of the pistol from nearby pit and prepared memo Ex. Ka-2. The police also recovered twisted cycle and recovery memo Ex. A-3 was prepared. The police also recovered blood smeared and simple earth prepared Ex. Ka-4. The site plan Ex. Ka-5 was also prepared on the spot. The inquest of the body was done on the spot and inquest report Ex. Ka-8 was also prepared at the spot. The dead body was sealed and marked as Ex. Ka-9 and the same was sent for post mortem examination. Photo lash Ex. Ka-11 was also prepared on the spot. The post mortem on the body was conducted by Dr. Arun Kumar which is Ex. Ka-6. Following ante mortem injuries were enumerated in the post mortem report. 1. Lacerated wound 15 cm. x 3.5 cm. x brain cavity deep on left side of post aspect of head. 2. Lacerated wound 7.5 cm. x 3 cm. x bone deep, 3 cm. anterior to injury No. (1). 3. Lacerated wound 6 cm. x 4.5 cm. x cavity deep on post aspect of right side of head. 4. Multiple contusion in area of 36 cm. x 12 cm. on post lateral aspect of right upper arm, elbow, forearm and wrist. 5.Multiple contusion in area of 30 cm. x 21 cm. on left side of back of chest size from 12 cm. x 30 cm. to 6 cm. x 3 cm. 6. Multiple contusion in area of 30 cm. x 9 cm. on post lateral aspect of left elbow forearm extending upto upper arm. 7. Multiple abrasions in area of 33 cm. x 27 cm. on front of both side chest and abdomen. 8. Lacerated wound 6 cm. x 2 cm. x bone deep on front of mid area of right leg underlying bone fracture. 9. Abrasion 6 cm. x 4.5 cm. on medial aspect of right knee.
(3.) AFTER completing investigation, charge-sheet was laid before the Court. It would appear from the record that accused Nanha and Dhola surrendered in the Court at Etah in connection with offence under Sections 435 and 504, I.P.C. Accused Dwarikadheesh, Mathura and Raju were arrested from New Delhi in connection with offence under Sections 399 and 402, I.P.C. However, Basanta continued to escape from police dragnet and hence the Court committed the case of all the accused persons excepting Basanta to the Sessions Court. The accused in their statements recorded under Section 313, Cr. P.C. denied the incriminating evidence appearing against them. They pleaded that they have been falsely enmeshed in the case and they claimed to be innocent. However, they did not adduce any evidence in their support. Accused Dhola alias Dharmendra stated in his defence that he was the brother of accused Nanha and Nanha had tied nuptial knot with a girl who was closely related to Satya Prakash Gautam deceased and on this count they were falsely nominated in the case. Accused Raju stated in his defence that he was falsely implicated at the behest of the one Surendra as father of Surendra and brother-in-law of accused Raju were horn-locked in criminal litigation and case under Section 307, I.P.C. was pending against the father of Surendra. Accused Mathura stated in defence that one Praveen Kumar Gautam had instituted case against Anil and Krishna Kumar for forging a Will and at the instance of Anil and Krishna Kumar, his father and Dwarikadheesh were falsely roped in with the false case of murder. Dwarikadheesh accused also denied his involvement and pleaded alibi stating that he had gone to Allahabad to serve summons on Inspector Ramji Mishra under the orders of S.S.P., Mathura.;