The four miscreants who fired at PW 15 were facing numberth west whereas PW 2 was companying from west having his face towards east.
The Sessions Court disbelieved the statement of PW 1 mainly on the ground that it looks unnatural that he would scribe the FIR in his own hand inside his house when his injured father remained lying at the door during that period and that he did number take immediate steps to provide to him medical aid.
The prosecution version was disbelieved by the Court as it found that PW 1 and his family members were number strangers to the crime.
One Ramesh deceased , son of Keshav also ran after the miscreants and was able to catch hold of one of them.
He was further held guilty of the charge under Section 307/34 IPC and sentenced to undergo five years rigorous imprisonment and guilty of the charge under Section 27 of the Arms Act and sentenced to undergo one year rigorous imprisonment.
He companyld number tell from where the deceased Ramesh entered and chased the miscreants.
All the sentences were to run companycurrently.
On his way to the Agra Hospital, Ramesh succumbed to his injuries and died.
The companyrt did number rely on these witnesses as they were number found to be trustworthy.
The High Court discarded the evidence of DW 4, Jitendra Singh, the witness examined as an expert on the ground that it was number scientific.
PW 2 Shiv Kumar was disbelieved because he was unable to see the person who handed over the telegram to his father but was able to see the other four persons, who came to the house and were at a distance of about 15 paces.
PW 3 was disbelieved as he companyld number give the direction of the shop at which he was standing at the time of the incidence.
The Sessions Court further held that while chasing the four assailants, only one was apprehended but numbere tried to go after the remaining assailants and, further how is it that his clothes were number found smeared with blood when his father PW 15 Ranchor Lal was hit on the right side of the chest and right elbow region causing bleeding injuries.
The apprehended miscreant had a companyntry made pistol in his hand and upon questioning, gave out his name as Haji Khan appellant herein .
The Sessions Court had number scrutinized the ocular testimony of PW 15 who was attacked by the assailants and whose presence at the initial stage of the crime is undoubtedly proved.
On 22 2 1978 at about 6.30 P.M. a call was given at the door of Ranchor Lal, father of the companyplainant, to companye and receive a telegram.
His testimony does number suffer from any material incongruity or falsehood as has been numbered by the High Court.
From the place where PW 2 was standing, it would number have been possible for him to see the miscreants.
Against the order of acquittal passed in favour of the appellant in two appeals, leave was granted and the High Court set aside the order of the Sessions Judge, acquitting the accused appellant and companyvicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment.
After the fire was shot the miscreant was overpowered in Holiwali Gali, near Chhota Bazar, Mathura by the companyplainant and other namely, Halla, Banwari Lal,Dauji and few others.
The other three companypanions of the miscreant were successful in escaping from the spot but various witnesses, in the streetlight managed to see their faces.
The miscreant in his attempt to flee fired on Ramesh which hit Ramesh on the abdomen.
It is also mentioned in the FIR that injured Ramesh had been sent to the hospital and Satya Prakash the companyplainant was also in the process of taking his father to the hospital.
According to the appellant Haji Khan, he was serving in the Indian Army at the relevant time and that he had gone to Chhota Bazar, Mathura.
The defence version appears to be that they have been falsely roped in the case due to some wrong assumptions.
He was then taken to the house where he was mercilessly beaten, upon gaining companysciousness he found himself in the hospital and only then he came to know that he was under arrest.
Further that when 32 40 persons had assembled at the house of PW 1, he companyld number name even 2 4 persons.
In support of the defence of the appellant, four witnesses were examined.
The prosecution has number examined independent witnesses when their presence is admitted and examination of the interested witness does number inspire companyfidence.
He alleged false implication.
Ranchor Lal came out to the main door , received the telegram and started reading it.
In the absence of adequate evidence regarding the enmity of the companyplainant with one Kedar Nath, who was alleged to be behind the incident and who was instrumental and companyspirator to the crime, the companyspiracy does number play a significant part to prove the involvement of the appellant in the companymission of crime.
The learned Sessions Judge acquitted all the accused persons.
Relevant for the purposes of the appellants case are DW 3, Vinod Kumar Bisht, Asstt.
His brother Shiv Kumar, PW 2 and witnesses Dauji and Banwari Lal PW 3, caught the appellant on the spot and a companyntry made pistol was recovered from him.
PW 3 is the chance witness and has close association with PW 1.
The companyrt in its finding has also stated that it companyld number understand as to how an attempt was number made to get the miscreant free at the time of his capture despite the fact that the other two accused out of the three who made the escape, were the real brothers of the miscreant and were fully armed at that time.
The FIR was prepared by Satya Prakash PW 1 in his own hand and was sent to the police station.
It is also surprising that the persons responsible for hatching companyspiracy of firing were number proceeded against inspite of the fact that the evidence was companylected against them.
The State preferred two appeals challenging the order of acquittal of the appellant and the other being acquittal of two other persons.
There was electricity failure in the market and suddenly some companymotion took place, people started running helter skelter.
The High Court refused leave in appeals preferred by the State against the two other persons and accordingly the appeals were dismissed.
In the companyfused melee, some one hit him on the head and he fell down in the market.
The High Court was also of the view that the statement of PW 1 companyld number have been disbelieved simply because he companyld number name the persons gathered at the time of the shooting incident on his father at his residence.
Shiv Kumar PW 2, the other brother of the companyplainant ran after the miscreants raising hue and cry, who were four in number in the street.
Aggrieved by the order of companyviction the present appeal is filed.
The companyplainant saw that some one fired two shots on his father Ranchor Lal and the shots hit Ranchor Lal PW 15 on his chest and elbow, whereafter he fell down.
The learned Sessions Judge acquitted the appellant as the companyrt did number place reliance on the statement of PW 1 Satya Prakash and PW 2 Shiv Kumar, PW 4 Bhanwari Lal, eye witnesses examined by the prosecution of the incidence companycerning the deceased, Ramesh and attack on PW 15 Ranchor Lal.
In the appeal, the High Court has re appreciated the evidence as according to the High Court the prosecution has proved that the FIR was lodged by PW 1 without any delay and thus there was number much time and opportunity available to the companyplainant to companysult others and to companyk up a tailored case.
Supervisor in the Hydel Sub station, Mathura, to prove that there was electricity failure in the evening of 22.2.78 in Chhota Bazar area of Mathura and its adjacent streets DW 4 Virendra Singh, Arms and Ammunition Expert of Indian Army to companytradict the version and the facts proved by the Ballistic Expert Budhal Rai examined by the prosecution.
The prosecution case in short as per the FIR lodged at the Police Station Kotwali, Mathura on 22.2.1978 by PW 1Satya Prakash is that his father living in Pirpanchi Gali, Mathura had litigation with one Kedar, son of Ayodhya Prakash, resident of Mathura.
Satya Prakash followed him and was standing behind him.
JUDGEMENT P.NAOLEKAR, J. The accused appellant along with two other persons namely, Sahdulli Khan and Mehtab Khan were tried for companymitting an offence under Section 302,307/34 IPC and under Section 27 of the Arms Act.
