RAKESH TIWARI,ARVIND K.TRIPATHI,J - (1.) SINCE both the appeals are arising out of Case Crime No. 55/91 and judgement of conviction in S.T. No. 67/91, hence both the appeals are being taken up together. No one is present for the appellants. Learned AGA was requested to assist. The present appeal is being heard to dispose on merit, in view of judgement of Hon'ble Supreme Court in the case of Bani Singh v. State of U.P. AIR 1996 SC 2439. Heard learned AGA and perused the record of both the appeals.
(2.) PRESENT Criminal Appeal No. 109/97 has been filed by Narendra Singh s/o Ram Singh Thakur, Mahendra Singh s/o Ram Adhar Singh r/o Sirhaul, Police Station Jaswant Nagar, District Etawah against the judgement and order of conviction and sentence dated 16.1.1997 passed by learned Special Judge, (D.A.A.) in S.T. No. 67/91 convicting the appellant Narendra Singh under section 302 read with 34 IPC and sentenced for a period of life imprisonment, under section 394 IPC sentenced to undergo five years' R.I. convicted under section 15 of the U.P. D.A.A. and was sentenced to undergo five years' R.I. with fine of Rs. 1000/- in default of payment of fine he was to undergo six months' R.I. The appellant was also convicted under section 25 Arms act and was sentenced to undergo one year's R.I. The appellant Mahendra Veer was convicted under section 302/34 I.P.C. and was sentenced to undergo for life imprisonment under section 394 I.P.C. and was sentenced to undergo for a period of five years' R.I. with the direction that all the sentences should run concurrently. Criminal Appeal No. 161/97 has been preferred by accused appellant Par-mal Singh, s/o Lakhan Singh R/o Mohab-batpur, P.S. Jaswant Nagar, District Etawah who was convicted and sentenced under section 302 read with 34 I.P.C. for a period of life imprisonment and further was convicted under section 394 I.P.C. and was sentenced to undergo for a period of five years R.I. with the direction that all the sentences should continue to run concurrently. They were accused in the present case arising out Case No. 55/91 registered at Police Station Chhatta, District Agra on 30.1.1991. There were four accused and the case of the accused Krishna Veer Singh alias Babloo was separated vide order dated 6.1.1997 as he was declared juvenile at the time of cross examination and his case was sent to the Juvenile Justice Board for trial.
(3.) THE brief fact of this case is as follows: On 30.1.1991 the First Information Report was lodged by the informant PW-1 Ranchor Das Tandon at Police Station Chhata, District Agra who was resident of Varanasi dealing with the business of Saries. He had a firm which deals with the Saries and also had five other firms. On 31.91 he along with his Munim Yogendra Yadav was at Agra in connection with the business of Saries and for collection of the dues from the businessmen. They collected the outstanding dues from the various firms at Agra and after collecting money six bank drafts were prepared with regard to the amount collected earlier. However, subsequently the amount collected on 30.1.91 was Rs. 42,700/-. The aforesaid amounts were collected from the firms situated at the different places i.e. Kinari Bazar, Jauhari Bazar and Subhash Bazar. On the date of Incident the informant Ranchor Das Tandon was going along with his Munim to Gudri Mansoor Khan through Peepal Mandi and his Muneem was having bag containing drafts, cash etc. When both of them reached in front of the temple of Lordshiv Ji at about 9.30 P.M. they saw four miscreants standing there who intercepted both of them. They tried to snatch the bag from his Munim Yogendra Yadav and one of them brandished his country made pistol and asked them to hand over the bag. When the Munim resisted then one of the miscreants fired and they forcibly snatched the bag. The Munim received firearms injuries and fell down on the spot. They raised alarm which attracted S.I. Kanhai Singh and constable Surendra Kumar Mishra who were present at the police outpost Peepal Mandi and they reached on the spot. Those miscreants threatened to the Police Party also and brandished their country made revolver. A panic was created in the market. Accused appellant Narendra Singh was arrested just after few steps from the place of incident. However, three of the miscreants succeeded to ran away from the spot. The bag was recovered from the accused appellant Narendra Singh containing Rs. 42,700 /- which was looted from the Muneem of complainant. Six bank drafts of State Bank of India and Oriental Bank of Commerce were also recovered along with some relevant papers relating to the business of the complainant which were kept in the bag. After search was made one country made pistol along with one empty and five live cartridges were also recovered regarding which he had no licence. The cash, bank drafts etc. and relevant papers recovered from him were sealed in the same bag and country made pistol and cartridges were also sealed separately. The injured Munim was taken to the hospital however, he succumbed to the injuries on way to the hospital. The First Information Report was lodged by PW-2, Ranchhor Das Tandon, at Police Station, Chhata, District Agra on the same day i.e. 30.1.1991 at 10.45 P.M. which was recorded by the Head Moharir Surendra Singh Chauhan who made entry in the General Diary. S.I. Kripa Shanker Dubey, prepared the inquest report of the deceased and relevant papers for the Post Mortem Examination of the deceased Munim Yogendra Yadav. The inquest memo was Ext.Ka. 4. The post mortem examination of the deceased Yogendra Yadav was conducted by Dr. R.C. Gupta, PW-1. on 31.1.91 at 4.30 P.M. S.H.O. Tejeswar Pal Singh investigated the case and arrested the remaining three accused appellants at about 11.50 P.M. on the same day near Vedant Temple who .was examined as PW-7. The accused Narendra Singh identified three remaining accused who participated in the commission of crime along with him. The informant Ranchhor Das Tandon also reached on the spot at the time of arrest of the other three accused Parmal Singh, Krishna Veer Singh alias Babloo and Mahendra Veer Singh and he also'identified them. From the possession of accused Parmal Singh one country made pistol and three live cartridges were recovered, from accused Mahendra Veer two bombs were recovered and from the co-accused Krishna Veer Singh alias Babloo one country made pistol was recovered. The statement of the witnesses were recorded by the Investigating Officer on the next day. The site plan was prepared. After permission was obtained from the District Magistrate, Agra to prosecute the accused Narenda Singh under section 25, Arms Act, the charge sheet was submitted. All the three accused appellants pleaded not guilty and asked for the trial and urged that the entire allegations against them were false. The accused Ma-hendra Veer Singh. Krishna Veer Singh, and Parmal Singh also pleaded that they were apprehended by the police of Police Station Kedara Nagar where their sister resides. The accused Narendra Singh did not plead anything except that of bare denial and false implication. Dr. R.C. Gupta was examined as PW-1 who conducted the post mortem examination, Ranchhhor Das Tandon who lodged the First Information Report was examined as PW-2, Constable Abdul Mateen Khan was examined as PW-3, Constable Brijpal Singh was examined as PW-4. S.I. Kripa Shanker Dubey was examined as PW-5 and H.C. Surendra Singh as PW-6. Tajeshwar Pal Singh, the investigating officer was examined as PW-7. The accused also examined in defence as DW-1 Smt. Saroj Devi, DW-2 Dr. D.B. Bhargava, and DW-3 Smt. Kusum Lata. Smt. Saroj Devi was examined on the point that these accused appellants namely Mahendra Veer Singh, Krishna Veer Singh and Parmal Singh were apprehended by the police from the house. Smt. Kusum Lata and Dr. D.B. Bhargava, were examined on the point of minority of accused Krishna Veer Singh alias Babloo. Dr. R.C. Gupta PW-1 stated that he conducted the post mortem examination of the deceased Yogendra.Yadav on 31.1.91 at about 4.30 P.M. The dead body of the deceased was brought by the constable Brij Pal Singh, police of Police Station Chhata. The Doctor found following anti mortem injury: "A gun shot wound of entry 1 cm x 1 cm (circular) front and upper part of abdomen on the mid line, blackening present, margins inverted." Dr. R.C. Gupta, PW-1 further deposed that from the internal examination, he found that the bladder was empty, peritoneum was ruptured and there was free and clotted blood about two litres in the abdomen cavity, digestive food was found in small intestine. According to his opinion the cause of death was due to shock and haemorrhage as a result of aforesaid anti mortem injury. On 31.1.09 at about 9.30 P.M. the injury could be inflicted. The post mortem examination report is Ext. Ka 1. ;