The night was dark and cloudy and the road had numberstreet lights.
Q Who were there?
He had injuries on his chest, abdomen and on the buttock and was bleeding from the injuries.
In these meetings it was decided to kill Sunder.
Q Where were you going?
After Uttering the abusive words and the words Bachao bachao I saw Sunder sit down on the road and later lie down.
74 of 1951.
P. C. were taken against both but after some time they were dropped and a settlement was reached between them.
The State of Madhya Pradesh presented a petition for enhancement of sentence passed against Pratap from transportation for life to death.
As usual with new recruits, he started taking an active part in the meetings of the other faction.
In the first information report there is a post script after the words Same is companyrectly recorded, in these terms Sunder had stated on seeing, by means of a torch that all the four individuals were seen, It was companytended by Dr. Tek Chand that this sentence was a subsequent interpolation in the report and that there was numbersatisfactory evidence that Sunder was in possession of a torch at the time that he was fired at.
Appellant Ramnath did number belong to either of the factions and he was number involved in the Section 107 proceedings of 1949 or 1950.
The petition of the State for enhancement of Prataps sentence was dismissed.
All that he uttered was that these dishonest people had killed him.
The learned sessions judge was of the opinion that these witnesses had made improvements in their statements and to that extent they were unreliable.
The charge of companyspiracy under Section 120 B was sought to be established from the direct evidence of the approver Hanna, P. W. 1, and Shibbu P. W. 8 and from other circumstantial evidence.
The prosecution case which was based merely on the evidence of the approver is as follows In the town of Gadarwara, where the deceased and the accused persons lived there were two factions, one of which was led by Sunder and the other by Pratap.
In cross examination he admitted having made the statement, Ex.
He replied that he was returning after the meeting from the Nakalganj and that he was treacherously shot by Mama.
As already said above, a dying declaration was recorded by the magistrate at the hospital at 12 15 A. M. and it is on this dying declaration that the High Court placed companysiderable reliance.
Hearing Sunders cries, some persons living in the neighbouring houses came to the spot and heard Sunder cursing by same persons who he thought were his assailants.
I said who else was with Mama.
In cross examination he admitted having made the statement, Ex.
Munde, P. W. 11, is the brother of the deceased.
Q Whoever else was with you?
Ramnath then hired Chiddis tonga and he and his companypanions went to a place on the main road where Sunder was expected to pass on his way home from the meeting.
He was originally in Sunders faction and was bound over under Section 107 in March 1950.
This statement again is of a neutral character and does number afford any assistance in the case.
A I was alone.
After his wounds had been dressed, Shri S. S. Naidu P. W. 49 , Assistant Medical Officer, took him by passenger train to Jubbulpore for admission into the Victoria Hospital.
D 20 B, before the police.
Since 1948 there had been quarrels between the members of these factions and in 1949 proceedings under Section 107, Cr.
The evidence of both these witnesses having been disbelieved, it was companycluded that there was numbermaterial on the record from which it companyld be held proved that it was Ramnath who was responsible for firing the shots which hit Sunder.
Three witnesses, Munde P. W. 11 , Phakire P. W. 31 , and Hajari P. W. 32 gave evidence as regards a statement alleged to have been made to them by the deceased when they came to his help and took him in a tonga to the hospital.
He said as follows On reaching Sunder I asked him what happened to him, and where he had gone.
There was numberhing in the dying declarations justifying the above companyclusion.
P. W. 3, Narbada Prasad, and P. W. 7, Narayan das, gave evidence as to what they heard the deceased exclaiming soon after he was shot.
The third witness Hajari, P, W. 32, deposed as follows Munde asked Sunder who had hit Sunder and Sunder said that Mama Betichoud Dogla had shot him with a bullet and he named the accused Mama, Pratap, Purushotham and Hanna as having been present together at the shooting.
He said as follows I thus came to the hospital.
Sunder was lying in the verandah of the hospital surrounded by a number of persons.
A third dying declaration is alleged to have been made by the deceased to his muneem Mulchand P. W. 20 .
Umashankar, P. W. 30, also gave evidence about this declaration.
The first witness on the point was Hanna, P. W. 1, whose evidence, as we have already said, has been rejected in the companyrts below.
Ramnath was found guilty for the murder of Sunder and was companyvicted under Section 302, I. P. C. and sentenced to death.
Ramnath, Pratap, Purshotham, Hari Shankar and Chiddi were charged under Section 120 B, I. P. C., for having entered into a criminal companyspiracy at Gadarwara to murder Sunder.
The only other piece of evidence against the appellants was the dying declaration of Sunder recorded by the magistrate at 12 15 a. m. on 7 4 1950 at the hospital.
The autopsy showed that there were two pictured wounds on the left side of the mid auxiliary line which had been caused by shots from a firearm.
Narayandas, P. W. 7, stated as follows I rose and sat on my bed from where I companyld see the road below.
The firing was number, as stated by him, frontal.
Upset at this incident, he decided to leave Sunders party and join the opposite faction of Pratap and Purshotham.
I had sat on my bed and seen Sunder standing on the road just after Sunder had uttered Bachao bachao baimano ne mar dala.
Security proceedings were again taken against them in March 1950.
It was companyroborated by the first information made by Mulchand to the police the same night.
The other two witnesses on this point were Nanha, P. W. 2, and Ramswarup, P. W. 4.
Some members of Sunders party were bound over, but Sunder himself and his brother, Munde, and two others were discharged.
He uttered Pratap, Purshotham and he uttered one more name which I companyld number catch and Mamaji Ki bittia chud gai mar dala bachao, The exclamation deposed to does number affix blame on any particular individual for the firing and does number amount to a statement that he had seen anyone firing at him.
He companyceded that therein he had number stated that Sunder had specifically accused Ramnath of firing at him.
A Purshotham, Pratap, Mamaji and Hanna Ahir shot me by means of a pistol.
The witness thus improved upon his original statement during the trial.
He made numbermention of the torch being in the hand of Sunder or at the spot.
D 39, before the police.
It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him.
He thought he must have been fired upon by his arch enemies, he cursed them and exclaimed that after all they had succeeded in finishing him.
Phakire, P. W. 31, stated as follows Sunder caught me with his one hand and said he was killed and stated that Mamaji, Pratap, Purshotham and Hanna had shot him with a bullet.
Dr. Tek Chand argued that the incident took place at about 11 30 p. m. on a dark and cloudy night and that the firing was sudden and that in this situation it was number likely that Sunder identified his assailants, particularly when the shots were number being fired from the front.
Sunder, a goldsmith by profession and1 leader of one of the two rival factions in the town of Gadarwara Madhya Pradesh was shot while returning from a meeting at the ganj grain market and walking on the main cement road of the town at a spot in front of one Narayandass house, where Phullu Mithyas lane meets that road, at about 11 or 11 30 P. M. on 6 4 1950.
An alternative charge under Section 302 read with Sections 109 and 114, I.P.C. for abetment of the murder by Ramnath was also framed against them.
Some of these meetings were held at Prataps hotel and the last two at Purshothams house.
Ramnath fired another shot at him before he and his companypanions took to flight.
This torch was number found on the spot or produced before the police on the 6th night or the 7th morning.
A Pratap had called and had taken me to Nakalganj, and struck me on bringing me, in front of the chudiwala.
All the appellants were therefore acquitted of this charge.
The three appellants along with two others, viz, Hari Shankar and Chiddi were tried by the additional sessions judge, Narsimhapur Madhya Pradesh as persons responsible for this murder.
There he did number say that Sunder had told him that Ramnath had fired the shots at him.
Pratap and Purshotham were further charged under Section 302 read with Section 34, I. P. C. for having acted in companycert with Ramnath in the murder of Sunder.
Harnarain alias Hanna was given a pardon and he appeared as the first witness for the prosecution.
Shortly after, Ramnath and Purshotham emerged from the lane, while Hanna and Pratap remained in it, and Ramnath fired two shots at Sunder at close range.
The High Court by its judgment under appeal altered the companyviction of Ramnath under Section 302, I. P. C., to one under Section 302 read with Section 34, I. P. C. and sentenced him to the transportation for life.
I saw that Sunder was standing on the road about 3 4 towards its middle from the opposite edge of the road with a hand kept on his belly.
Sunder was operated upon by Shri Chari P. W. 52 , Civil Surgeon, on 7 4 1950 and died on the same day.
After hearing Dr. Tek Chand for the appellants and Mr. Mehta for the State Government, we have reached the companyclusion that in view of the sudden firing that took place at that hour of the night it was number possible for Sunder to clearly identify the persons who had fired the shots at him, that in all likelihood the names he mentioned at the time were the result of the reaction on his mind on the occasion.
Proceedings against Purshotham, Pratap and his brother Durga were pending, when Sunder was shot dead on 6th April 1950.
He said that Pratap, Purushotham, Mamaji and Hanna had jointly shot him with pistol.
In that statement he had stated that Sunder had named four persons as having shot at him.
Sunder flashed his torch and companylapsed.
The answer was Purshotham, Pratap, Mamaji and Hanna Ahir shot me by means of a pistol.
The learned sessions Judge accepted this evidence.
49 of its judgment the High Court Stated its companyclusion in the following terms.
The learned additional sessions judge reached the companyclusion that the charge of criminal companyspiracy under Section 120 B was number proved.
Ramnath was also charged under Section 302, I.P.C. for having in furtherance of the above companyspiracy murdered Sunder by shooting him with a pistol.
He was followed by the other three, to whom he subsequently reported that Sunder had told him that he would see him on the following morning.
The first question put to him was Who assaulted you?.
All the four individuals were standing.
It is difficult to companyceive how four persons companyld shoot him by means of a single pistol and how he companyld have actually seen the persons who fired at him with a single pistol.
The approver Hanna, is a milkman of Gadarwara and sells pan and bidi.
It is said that about a fortnight before the murder he demanded two rupees from Sunders brother, Munde P. W. 11 , which were due to him for supply of pan and bidi but Munde refused to pay and abused him.
P 17, which runs as follows Q Who assaulted you?
A I flashed the torch.
He was however in his senses.
The charge of criminal companyspiracy must thus be taken to have been finally negatived by the judgment of the learned sessions judge.
The prosecution produced three witnesses to prove that it was Ramnath who fired the pistol shots which hit Sunder and which eventually resulted in his death.
It was only on the 10th that Munde gave it to the police by saying that it had been given to him by some person who was number produced as a witness.
Narbada Prasad stated as follows I rose from my bed and peeped outside from the window.
But it is alleged that in 1948 Hari Shankar, his sisters grandson, was beaten by Sunder or by his friend Ramrattan, P. W. 42, and that in a gambling quarrel between Sunder and Ramnath, the former beat Ramnath with a shoe and the latter threatened to see Sunder killed.
They entered a lane and after a few minutes Pratap went to pee whether Sunder was companying.
Harishankar and Chiddi were acquitted.
His clothes were bloodstained with blood from his injuries.
I saw a man sitting on the road in front of Narayandas Sonis house and then he lay down on the road and uttered something.
A Yes, sir.
He reported that he was on his way flashing a torch from time to time.
Against their companyvictions and sentences the appellants preferred appeals to the High Court of Judicature at Nagpur.
In 1949 Sunder received three anonymous letters which were handed over to the police .
In pursuance of this companyspiracy it was settled that Sunder should be taken behind the ganj and killed there without delay.
Pratap and Purshotham were companyvicted under Section 302 read with, Section 34, I. P. C. and each of them was sentenced to transportation for life.
I had hostility with all.
Q Had you hostility with these individuals?
Mahajan, J. These are appeals by Ramnath, Pratap and Purshotham under Article 134 1 c of the Constitution of India from the Judgment and Order of the High Court of Judicature at Nagpur dated 22 8 1952 in Criminal Appeal No.
As regards Ramswarup, it was said that his testimony was equally unsatisfactory.
Pratap agreed to go to the ganj where Sunder was attending a meeting, to call him.
I asked him what happened.
The settlement, however, was shortlived as within a few weeks they quarrelled again and some of them abused and beat each other.
It companyfirmed the companyviction of Pratap and Purshotham under Section 302 read with Section 34, I. P, C. and maintained the sentence of transportation for life passed against them.
He replied that the accused Purshotham, Pratap and Hanna were also with Mama.
The evidence of these two persons therefore is number of much value in this case.
He was taken in a tonga to the hospital and after enquiry from him, Mulchand P. W. 20 , his muneem lodged the first information report about this incident at the police station Gadarwara at about 11 45 P. M. Half an hour later, G. D. Mukherji P. W. 5 , first class magistrate, recorded Sunders dying declaration, Ex.
