POONAM SRIVASTAV,J. - (1.) APPELLANTS , Durjan Lal, Budh Sen and Laxam are dead. Appeal in respect of appellants, Durjan lal and Laxman stood abated on 13.1.2006. Appeal of appellant Budh Sen abated on 5.2.2007 after confirmation of his death. Ms. Seema Shukla, Advocate, was appointed amicus curiae, to argue the case on behalf of appellant No. 2, by this Court vide order dated 24.10.2009 since appellant No. 2 has no counsel. The instant appeal was preferred against judgment and order dated 22.10.1981 passed by Additional Sessions Judge, Vllth, Bareilly, in Session Trial No. 138 of 1981 whereby appellant Harish Chand @ Hari Chandi, was convicted under section 307/149 I.P.C. and sentenced to undergo 4 years R.I., under section 458 I.P.C. three years R.I., under section 323/149 I.P.C 9 months R.I., under section 148 I.P.C. two years R.I., and under section 147 I.P.C. 9 month R.I. All the sentences were directed to run concurrently. Heard learned Counsel for appellant No. 2 and learned A.G.A. for the State. The occurrence is alleged to have taken place on 11/12.7.1980. First information report was lodged on the same night i.e. 12.7.1980 at 2:30 a.m. Police Station Bhuta, District Bareilly.
(2.) ACCORDING to the narration of facts in the F.I.R. Ex. Ka.1, one Ram Swarup was cousin brother of the informant Bholey. Smt. Vidhya Vati is widow of Ram Swarup. The informant Bholey suspected character of Smt. Vidhya Vati, since she used to roam about everywhere. This was objected by first informant and he asked her to remain in the house. The informant had further told Smt. Vidhya Vati that he would not allow anybody to take possession over her land, since the same belonged to her cousin brother. Four days prior to the alleged occurrence, all the above named four accused arrived at the house of the informant and questioned him as to why he was obstructing the movements of Smt. Vidhya Vati. They further told the informant that he had no right to restrict Smt. Vidhya Vati from giving her land to whosoever she likes. The informant thereupon replied that Smt. Vidhya Vati was widow of his cousin brother and the land belonged him. The informant also said that he had every right to place restrictions upon Smt. Vidhya Vati. All the accused then left saying that they would see as to how he imposes such a restriction on Vidhya Vati. In this back ground, in the night between 11/12.7.1980, all the above named accused reached the house of the informant at about mid-night, accompanied by three other unknown persons. They all forced their entry inside house of the informant. The two accused Laxman and Budh Sen had Tamanchas. The remaining persons had lathis in their hands. The accused Durjan lal said that the informant was teasing his daughter Smt. Vidhya Vati and instigated the other companions to kill the informant Thereupon Laxman and Budh Sen fired with their Tamanchas and the shots hit the informant's brother Puran, his cousin Pusey and his Bhabhi Smt. Gomti. The remaining accused wielded lathi blows as a result of which the informant Bholey and his mother Smt. Hansha were injured. A lantern was burning inside the house. On hearing the alarm, witnesses Salig Ram, Puttu lal and Pothi Ram reached there, flashing their torches. They all saw and recognized the faces of the accused persons in the light of the lantern and in the light of torches. The informant Bholey reached the police station and lodged a written report of the occurrence at 2:30 a.m. The medical examination of the injured persons took place at Primary Health Centre Faridpur, and X-ray examination took place 'at District Hospital Bareilly. After completing usual investigation, all the accused were sent up for trial. Injuries of Pooran lal were examined by Dr. R.C. Asthana, Medical Officer, PHC, Faridpur, Bareilly, on 12.7.1980 at 3:40 p.m. and are detailed below: - B.B. Police Constable Sri Siya Ram C.P. No. 803 P.S. Bhuta, Bareilly. M.I. (paper torn) black mole of the (Rt) side forehead 1 cm above medial end of (Rt.) eyebrow. Injuries: - (1) Gun shot wound of entry on the front of the (Rt.) arm and middle part in an area of 9 cm x 6.4 cm x bone deep on the front of middle part of (Rt.) arm. (2) Gun shot wound of exits in an area of 12 cm x 8 cm on the posterior aspect of middle of the (Rt.) arm. The wound of exits and wound of entry both are in contravention to each other with fracture of humerous bone. Margin of the wound of entry is inverted while margin of exits is everted and lacerated. There is no palpable or visible pellets in the wound and blackening, tattooing, charring also not present. (3) Abrasion in an area of 16 cm x 3 cm on the (Rt.) side chest extending from subcostel margin to 7th rib in the line of anterior axillary fold. (4) Gun shot wound of entry 0.3 cm x 0.3 cm x not probed on the (Rt.) side abdomen over lumber region lateral aspect. Pallet is palpable 4.5 cm away from the wound of entry posterior and downward in position. Injury Nos. (1), (2) and (4) kept U.O. Adv. X-ray (Rt.) arm and (Rt.) side chest and abdomen. Ret. to DH Biy. for X-ray...(sic).. Injury Nos. (1) (2) and (4) caused by firearm. Rest by i.e. injury No. (3) by friction. Nature is simple. Duration about half to one day. Injuries of Poose Ram examined by Dr. R.C. Asthana, Medical Officer, PHC, Farid-pur, Bareilly, on 12.7.1980 at 3:55 p.m. are quoted below: - B.B. Police Constable Sri Siya Ram C.P. No. 803 P.S. Bhuta, Bareilly. M.I. (paper torn) mole on the (Lt.) sterro clavicular joint. Injuries: - (1) Gun shot wound of entry 0.2 cm x 0.2 cm on the back of root of neck at level of 7th......? spine. (2) Gun shot wound of entry 0.2 x 0.2 cm on the (Rt.) side back of chest 2.1 cm let ID the mid line at the level of 7th thoracic spine. (3) Gun shot wound of entry 0.2 cm x 0,2 cm on the (Lt.) side back of chest 2 cm let to the inferior angle of scapula. (4) Gun shot wound of entry 0.2 cm x 0.2 cm on the medial side (Lt.) forearm 9 cm below the (Lt.) elbow. (5) Gun shot wound of entry 0.2 cm x 0.2 cm on the back of lower part (Lt.) leg 7.4 cm above the medial maleolus. Pallets are palpable in the wound Nos. (1), (2) and (3). No blackening, tattooing or charring seen. Injuries are simple. Duration about half to one day. Caused by firearm. Ref. to D.H. Biy. for X-ray and T.T. Injuries of Smt. Hansho examined by Dr. R.C. Asthana, Medical Officer, PHC, Faridpur, Bareilly, on 12.7.1980 at 4:30 p.m. are quoted below: - B.B. Police Constable Sri Siya Ram C.P. No. 803 PS. Bhuta, Bareilly. M.I. (paper torn) mole on the (Rt.) side face 1 cm above the angle of mouth. Injuries: - (1) Contusion 6.5 cm x 2 cm on the front of the middle of (Rt.) thigh. (2) Contusion 5.5 cm x 2 cm on the popliteal fossa. (3) Incised wound 4 cm x 1 cm x muscle deep on the front of the (Rt.) forearm 2.5 cm above the wrist joint. Injuries are simple and about half to one day old. Inj. Nos. (1) and (2) caused by blunt object. Inj. No. (3) by sharp edged weapon. Injuries of Bhole examined by Dr. R.C. Asthana, Medical Officer, PHC, Faridpur, Bareilly, on 12.7.1980 at 4:15 p.m. are quoted below: - B.B. Police Constable Sri Siya Ram C.P. No. 803 P.S. Bhuta, Bareilly. M.I. (paper torn) black mole on the front of the (Rt.) forearm 2 cm above the (Rt.) elbow. Injuries: - (1) Abraded contusion 3 cm x 2 cm on the (Lt.) side forehead. (2) Abrasion 1.5 cm x 0.6 cm on the front of the nose. (3) Multiple contusion in an area of 42 cm x 34 cm on the whole (sic) back of chest extending from the top of shoulder to the lumber region. (4) Contusion 1.5 cm x 1 cm on the tip of the middle finger (Lt.) hand. (5) Abrasion I cm x 1 cm on the front of the (Rt.) side middle part. Injuries are simple. Duration about half to one day. Caused by hard and blunt object. Injuries of Smt. Gomti examined by Dr. R.C. Asthana, Medical Officer, PHC, Farid-pur, Bareilly, on 12.7.1980 at 4:50 p.m. are quoted below: - B.B. Police Constable Sri Siya Ram C.P. No. 803 P.S. Bhuta, Bareilly. M.I. (paper torn) mole on the (Rt.) side neck 2 cm below the (Rt.) jaw. Injuries: - (1) Gun shot wound of entry 0.3 cm x 0.3 cm on the (Rt.) side chin. (2) Gun shot wound of entry 0.3 cm x 0.3 cm on the (Lt.) shoulder anterior aspect. (3) Gun shot wound of entry 0.4 cm x 0.2 cm on the front of the (Lt.) shoulder. 6 cm below the Inj. No.(2). No blackening, tattooing and charring seen. Pellets are palpable in the corresponding area. Injuries are simple. Duration about half to one day. Caused by firearm. Adv. X-ray chin and (Lt.) shoulder. Ref. to Distt. Hospital Bareilly for X-ray &T.T. X-ray report of Pooran lal, is quoted below: M.I. Raised black mole on Rt. side forehead just above eye brow. Report: - Shows multiple small radio opaque shadow of metallic density in the region of Rt. arm due to pellets. Also shows fracture of shaft of humerous in its middle third. X-ray report of Poosey, is quoted below: - X-ray chest AP with neck lower part. Shows one small circular radio opaque shadow of mettalic density in the region of chest, Rt. side, due to pellet, as melieolus by red arrow in the film. X-ray left forearm AP. Shows one small circular radio opaque shadow of metallic density in the region of forearm due to pellet. X-ray left leg AP- shows one small circular radio opaque shadow of metallic density in region of leg, due to pellet. X-ray report of Smt. Gomti, is quoted below: X-ray chin lat. - shows one small radio opaque shadow of mettalic density in the regions of chin, due to pellet. X-ray left ..arm AP view., radio opaque shadow of gun shot or bullet is seen. Charge was framed by Vllth Additional District and Sessions Judge, Bareilly, on 11.6.1981. Prosecution examined as many as 8 witnesses. PW-1 Bhole, PW-2 Poose Ram, PW-3 Puttu lal, PW-4 Pooran lal, PW-5 Siya Ram, PW-6 Janki Singh S.I., PW-7 Dr. R.C. Asthana, PW-8 Dr. K.S. Tiwari. Before entering into assessment of evidence and statements of witnesses, it is brought to my notice that appellant Harish Chand @ Hari Chandi is in jail since 6.12.2006. Almost more than 3 years have gone by. Sentence is of only four years R.I. It is, therefore, evident that he has served out almost more than 3/4th of his sentence.
(3.) I have gone through the entire record. - Appellant is said to cause assault with a Lathi and the remaining accused, who are no more alive, are alleged to be armed with firearm who caused firearm injuries to the injured. Therefore, I am of the considered view that sentence already undergone by appellant, will suffice and meet the ends of justice. In the circumstances, judgment and order dated 22.10.1981 passed by Additional Sessions Judge, Vllth, Bareilly, in Session Trial No. 138 of 1981, is confirmed but sentence is reduced to already undergone by appellant. Bail bonds and sureties of appellant are discharged. The instant appeal stands partly allowed. Appellant shall be released forthwith. ;