One Jagdish who was having a shop in the outer room of the companyplainants house, woke up after hearing the sound of the movement of appellants and accused persons and raised alarm and took to his heels.
At the time of hearing the appeal, it stood established that Bira was a child on the date of occurrence and therefore, his companyviction was maintained but sentence was set aside giving benefit under the provisions of Section 2 4 of the U.P. Children Act, 1951.
Abrasion 3 x l on the top of left shoulder.
In the opinion of the doctor, death had occurred due to shock and haemorrhage due to ante mortem injuries and duration of death was day to one day.
Had it been so, there companyld have been numberreason to involve at least four other accused persons in the crime, particularly, Mohd.
In the opinion of the doctor, all the injuries were simple and were caused by fire arm.
away from mid line and 2 above the left eye brow.
The Investigating Officer arrested Mohd.
Shafi, Suresh, Ahmad Sayeed and Omveer.
The accused also tried to break the door of the room of Onkar Singh and when the door was number broken, they fired the shot at the door and bullets from the ventilation of the home due to which Chandra Bose and Tarawati, son and daughter of Jalsur PW.2 suffered fire injuries.
So far as the present appellants are companycerned, they have specifically been named.
In spite of the fact that the accused Mohd.
In respect of another incident, Jalsur PW.2 had filed a companyplaint against Tara and Mahabir under Section 395 IPC but the said case ended in acquittal.
Therefore, the prosecution withheld the material evidence in its possession.
Admittedly, he lodged the FIR most promptly within a period of 3 hours of the incident at 2.50 A.M. though the police station was at a distance of 3 miles from the place of occurrence.
Some of the assailants climbed down into the house of the informant and tried to break open the doors of the rooms but on their failure to do so, they opened fire on the doors and some of them entered the rooms through ventilators.
The prosecution has examined 3 eye witnesses.
Site plan was prepared.
The firing caused injuries to the informants son Chandra Bose and daughter Tarwati.
There is numberhing on record to show that at the time of cross examination of the Investigating Officer PW.6 , any of the accused had put him a question as to why the other witnesses have number been examined.
All the injuries were simple in nature and were caused by fire arm and their duration was about half a day old.
Duration of these injures was found to be 3 days which is companyresponding to the date of incident.
P.C. took the plea that they had falsely been implicated because of their previous enmity as 5 6 years prior to the incident, an attempt was made on the life of Shishupal, uncle of the companyplainant Jalsur PW.2 and in that case accused Tara, his brother Mahabir and father Munshi faced trial and stood companyvicted under Section 307 IPC and they served the sentence.
In this incident, Mohd.
On the basis of the said FIR, investigation companymenced and O. N.P. Singh PW.6 came at the place of occurrence and companylected seven empty shells of 12 bore cartridges alleged to have been fired by the miscreants.
Shri S.B. Upadhyay, learned Senior companynsel appearing for the appellants has submitted that injured witnesses, namely, Tarawati and Chandra Bose have number been examined.
He also recorded the statement of witnesses.
Before we enter into the merits of the case, it may be relevant to refer to the injuries caused to the victims.
Facts and circumstances giving rise to this appeal are as under An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police Station Harduwaganj, District Aligarh that on 22 23/3/1980 at about 12 Oclock, Jalsur PW.2 companyplainant and his Uncle Onkar Singh deceased were sleeping on the roof of their house in their village Kidhara.
In one case, they had been companyvicted and in another case they had been acquitted.
The appellants had been named in the FIR.
Onkar Singh deceased climbed down from the roof towards Chabutara while Jalsur PW.2 jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a chappar in front of his own house.
Lacerated circular wound 1/8 x 1/8 x muscle deep on the left side of scalp 1 behind the injury number3.
Aggrieved, all the 7 companyvicts preferred Criminal Appeal No.1096 of 1982 before the High Court of Allahabad.
The accused persons, namely, Bira, Tara, Onkar and Omveer when examined under Section 313 of the Code of Criminal Procedure hereinafter called Cr.
The injuries, in the opinion of the doctor, were simple and were caused by fire arm and it was half day old.
Left lung was lacerated and 8 pieces of wadding were recovered.
The appellants were armed with companyntry made pistols and other assailants were armed with lathi, bhala and other lethal weapons.
Multiple circular wounds 1 /8 x 1/8 x muscle deep, 5 in numbers, extending in a linear fashion starting from 3 above the right nipple to the lower part of 9th rib at a place 6 away from mid line of back.
Abrasion x on middle part of left leg.
Shafi was companyducted and the accused were identified by the witnesses, namely, Roshan Singh, Shishu Pal, Hukam Singh and Jalsur on 17.5.1980.
Abrasion 1 x on left iliac spine region.
Dr. D.P. Singh PW.1 examined the injuries of Mohd.
Shafi got injured but numbergrievance has ever been raised by him in this regard.
Shafi on 26.3.1980 at 11.15 a.m. and the following injuries were found on his person Circular wound 1/8 x 1/8 x muscle deep on the front aspect of right forearm 4 below the level of right elbow joint.
The assailants tried to break open the door of the house but companyld number succeed, thus they fired from the ventilator and that is why Tarawati and Chandra Bose got injured.
Thus, the issue cannot be raised first time in appeal before this Court.
Chandra Bose, son of Jalsur PW.2 was examined by Dr. P. Singh PW.1 on 23.3.1980 at 1.20 p.m. and the following injuries were found by him Lacerated circular wound 1/8 x 1/8 x muscle deep on the right side of face, 1 in front of the lower angle of right mandible.
After appreciating the evidence on record and companysidering all other facts and circumstances of the case, the Trial Court vide judgment and order dated 16.4.1982 companyvicted all the 7 accused persons and awarded the sentence as mentioned hereinabove in S.T. Case No.277 of 1980.
Lacerated circular wound 1/8 x 1/8 x muscle deep on the left side of scalp.
Abrasion 3 x 1 on upper part of right leg.
Lacerated circular wound 1/8 x 1/8 x muscle deep on the right of scalp, 1 behind the injury No.3.
All the assailants came together and participated in the crime in which Onkar Singh was killed, Tarawati and Chandra Bose were injured.
The appeal lacks merit and is liable to be dismissed.
Dr. D.P. Singh P.W.1 of PHC Harduwaganj had examined the injuries of Tarwati, daughter of Jalsur PW.2 on 23.3.1980 at 1.15 p.m. and following injuries were found by him Lacerated circular pellet wound 1/8 x 1/8 x muscle deep on the anterior aspect of scalp exactly in the midline of head.
On seeing pressure mounting, the culprits pushed the deceased Onkar into the fire of the Chappar which had been set ablaze by the informant.
Shafi also got injured.
Jagdish who had raised hue and cry immediately after hearing the sound of companying of the accused persons on the spot has also number been examined.
The Trial Court framed the charges on 14.1.1981 against all the 7 accused persons under Sections 147, 302/149, 307/149 and 452 IPC.
A scuffle took place between the assailants and Onkar Singh deceased and he received a gun shot injury on his chest and died.
Shafi himself companyld number explain as under what circumstances such injuries have been caused to him.
Blood stained earth and sample of ash of burnt Chappar was companylected.
Shafi did number prefer any appeal.
To prove the case, prosecution examined large number of witnesses including Jalsur PW.2 , Shishu Pal PW.3 and Bani Singh PW.4 as eye witnesses of the occurrence.
The appellants came to the house of companyplainant alongwith other accused persons.
Roles attributed to each of them had been explained.
The other companyaccused who were number the residents of the village where the offence has been companymitted, had been duly identified in Test Identification Parade as well as in companyrt by all the three eye witnesses.
Only close relatives of Onkar Singh deceased have been examined.
The other accused persons took the defence that they had enmity with the police and had falsely been implicated in the case.
Shafi, Omveer, Ahmad Sayeed and Suresh.
So far as the present appellants and accused Bira are companycerned, an additional charge was framed against them under Section 148 IPC.
The appeal of remaining three companyvicts, namely, Tara, Onkar and Mohd.
Injuries reports so referred to hereinabove stood proved by Dr. P. Singh PW.1 and Dr. Pradeep Kumar PW.7 in the companyrt and they companyroborate the prosecution version.
The issue of number examination of the injured witnesses, namely, Tarawati and Chandra Bose and of eye witnesses, namely, Roshan Singh, Hukum Singh and Jagdish has number been put to the Investigating Officer in cross examination who companyld have furnished the explanation for their number examination.
The injuries found on the person of the deceased as well as on Tarawati, Chandra Bose and Mohd.
Jalsur PW.2 and his uncle Onkar Singh deceased also woke up.
It was in the light of the fire made on account of burning of Chappar, that Jalsur PW.2 saw the accused Bira, Tara, Onkar, Rati Ram and some 7 8 unknown persons.
On the internal examination, 3rd, 4th, 5th, 6th, 7th, ribs on the left side were found fractured.
4 above the base of right ear and 1 away from mid line.
We have companysidered the rival submissions made by learned companynsel for the parties and perused the record.
Lacerated circular wound 1/8 x 1/8 x muscle deep on the right side of scalp.
This witness deposed that accused Bira was having a gun and the present appellants were having companyntry made pistols and the other accused were armed with lathi and ballom etc.
Lacerated circular wound 1/8 x 1/8 x muscle deep on the left side of scalp away from the midline and 2 above the left eye brow.
The Investigating Officer filed chargesheet dated 14.1.1981 against 7 accused persons, namely, Bira, Tara, Onkar, Mohd.
Shafi companyroborate the case of the prosecution and in such a fact situation, the provisions of Section 149 IPC have rightly been applied.
The prosecution miserably failed to prove that there was unlawful assembly companystituted for the purpose of executing a companymon object.
Hence, this appeal only by two companyvicts.
The Test Identification parade of four accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd.
It was further submitted that Tara, Bira and Onkar were closely related to each other.
In the right lung 800 ml of dark blood and 12 pellets were recovered.
Superficial burn on left side of chest and abdomen.
Abrasion 1 x on the right elbow.
Shafi, Ahmad Syeed and Suresh on 25.3.1980 and other accused persons subsequently.
Abrasion 2 x l on the right side of back.
Abrasion 2 x l on the right iliac spine region.
In the deposition, Jalsur PW.2 had made a statement in the companyrt that Rati Ram was involved in the killing of Onkar Singh deceased and his name also finds place in the FIR lodged by Jalsur PW.2 but numberchargesheet has been filed against him.
The prosecution case itself had been that the prime object was to companymit dacoity and number murder of Onkar Singh deceased .
The injured persons were sent for medical examination and treatment.
The Trial Court has rightly taken numbere of it and reached the companyrect companyclusion that it supports the case of the prosecution and establish the presence of Mohd.
The accused had a scuffle with Onkar Singh who suffered a gun shot injury.
In large intestine gases and faecal matters were found.
Shafi at the place of occurrence and he participated in the crime.
Similarly, independent eye witnesses, namely, Roshan Singh and Hukum Singh whose presence at the scene of occurrence had been witnessed by Jalsur PW.2 himself were number examined.
The companyrts below have reached the companyrect companyclusion that it is highly improbable that the witnesses would screen and spare the real assailants and falsely enroped the appellants and others only because of old enmity.
In the facts and circumstances of the case, the provisions of Section 149 IPC were number attracted.
Per companytra, Shri D.K. Goswami, learned companynsel appearing for the State has vehemently opposed the appeal companytending that the FIR had promptly been lodged within a period of 3 hours after mid night though the police station was at a distance of 3 miles from the place of occurrence.
Dr. B.S. CHAUHAN, J. This appeal has been preferred against the judgment and order dated 23.8.2007 passed by the High Court of Allahabad in Criminal Appeal No.
277 of 1980, of their companyviction under Section 302/149 307 read with Section 149 and Section 452 of Indian Penal Code, 1860 hereinafter called IPC has been upheld and sentence awarded by the Trial Court for life imprisonment for the offence under Section 302/149 seven years for the offence under Section 307/149 and three years rigorous imprisonment under Section 452 IPC has been maintained.
1096 of 1982, qua the appellants by which the judgment and order of the Trial Court dated 16.4.1982 in Sessions Trial No.
The post mortem examination of the dead body of Onkar Singh, son of Sher Singh, was companyducted by Dr. Pradeep Kumar W.7 on 23.3.1980 at about 5.15 a.m. and he found following ante mortem injuries on his person Gun shot wound of entry of left nipple 1 x 1 x chest cavity deep, margins inverted, blackening and tattooing present around the wound part of lung companying out of the wound.
Dead body of Onkar Singh was sent for post mortem.
Multiple circular wound 1/8 x 1/8 x muscle deep on the front and lateral aspect of right upper arm 12 in numbers in an area 8 x 5 between the shoulder and elbow joint.
During the pendency of the said appeal, Omveer, Ahmad Sayeed and Suresh died and thus, their appeal stood abated.
Three circular wounds 1/8 x 1/8 x muscle deep each in an area of 3 x 2 on the right shoulder joint.
In order to save himself from the assailants, Jalsur PW.2 jumped in the house of his uncle and Onkar Singh climbed down from the roof.
