ONKAR Vs. STATE OF UTTAR PRADSH

JUDGEMENT

(1.) 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. 1096 of 1982, qua the appellants by which the judgment and order of the Trial Court dated 16.4.1982 in Sessions Trial No. 277 of 1980, of their conviction 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; andthree years' rigorous imprisonment under Section 452 IPC has been maintained.

(2.) Facts and circumstances giving rise to this appeal are as under:

(3.) Shri S.B. Upadhyay, learned Senior counsel appearing for the appellants has submitted that injured witnesses, namely, Tarawati and Chandra Bose have not been examined. 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 not examined. Jagdish who had raised hue and cry immediately after hearing the sound of coming of the accused persons on the spot has also not been examined. Only close relatives of Onkar Singh (deceased) have been examined. Therefore, the prosecution withheld the material evidence in its possession. In the facts and circumstances of the case, the provisions of Section 149 IPC were not attracted. The prosecution miserably failed to prove that there was unlawful assembly constituted for the purpose of executing a common object. The prosecution case itself had been that the prime object was to commit dacoity and not murder of Onkar Singh (deceased). In the deposition, Jalsur (PW.2) had made a statement in the court 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 no chargesheet has been filed against him. In view of the above, the appeal deserves to be allowed.