GIRWAR & OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal appeal has been preferred by the accused/appellants against the Judgment and order dated 29.03.1996 passed by learned Additional Sessions Judge, Roorkee, District Haridwar in Sessions Trial No. 376 of 1991, State Vs Girwar Singh & others thereby convicting the ac­cused appellant - Siya Ram, under Sec­tion 148/302 of I.P.C., Bharta under Sec­tions 148/302/149 of I.P.C. and the ap­pellants, namely, Gariwar, Balbeer and Gautam under Sections 147/302/149 of I.P.C. Accused/appellant Siya Ram was sentenced to one year's R.I. U/S 148 I.P.C. and life imprisonment U/S 302 I.P.C. and a fine of Rs. 1,000/-. Accused/appellant Bharta was sentenced to un­dergo one year's R.I. U/S 148 I.P.C. and life imprisonment U/S 302/149 I.P.C. and a fine of Rs. 1,000/-. Accused/appellants Girwar, Balbeer and Gautam were sen­tenced to 6 month's R.I. U/S 147 I.P.C. and life imprisonment U/S 302/149 I.P.C. and a fine of Rs. 1,000/-. In default of payment of fine all the accused/appellant were directed to further undergo R.I. for one year each. However, it was also di­rected that all the sentences shall run con­currently.

(2.) BRIEF facts of the case are that on 05.08.1990 at 02:15 a.m., Madanpal -complainant lodged a complaint at police station Manglore, District Haridwar alleg­ing therein that on 04.08.1990 his brother Nakli and Baru S/o Sandal sitting inside his house. On the same night, when Nakli was returning after dropping Baru to his house, Griwar, on the way stopped Nakli and told him, as to why he permit Baru to his house and offer him wine and thereafter, Griwar started abuses his brother and opened fire with his Tamancha (country made pistol). At 09:00 p.m., the complainant, his brother - Nakli, Baru and Bishambar (Pradhan) were going to police station in order to lodge the complaint about the said inci­dent, when they reached near burial place of the village, they saw Girwar, Balbeer and Gautam having lathies, Bharata having Ballam (sharp edged weapon) and Siyaram having Tamancha (country made pistol) in their hands standing over there. Watching towards the complainant side, they all said, we shall send you for lodging the complaint and rush towards them. Siyaram fired at Nakli by his Tamancha, which hit the stom­ach of the deceased. On this, Madanpal, Baru and Bishambar ran away from the place of occurrence. Nakli fell down in the field of sugarcane of Dharam Singh and died there. Madanpal took the dead body of his brother Nakli and kept him in the field of Nepal Singh. Thereafter, Madanpal lodged the complaint about the incident at the police station concerned. Netrapal Singh performed the inquest, took into possession bloodstain, sample of earth vide memo Ext. Ka. 3. This wit­ness also prepared the Chic F.I.R. (Ext. Ka. 6) and also prepared the letter to C.M.O., police form No. 13 and letter to Investigating Officer and sealed the dead body and sent the same for postmortem. Thereafter, Ajay Kumar Yadav investi­gated the case. He visited the place of occurrence and prepared the site plans (Ext. Ka. 11 and 12) and thereafter, Baljeet Singh, conducted the investigation of the case and after completing the in­vestigation submitted the chargesheet (Ext. Ka. 5) against the accused/appel­lants. After submission of chargesheet, the case was committed to the court of Sessions.

(3.) IN order to support its case, the prosecution has produced eight wit­nesses. Madan lal (P.W.I) who is the complainant of the report. This witness has stated the incident at length and sub­mitted the same in writing. Baru (P.W.2) - eyewitness supported the version of Madan lal. Keetab Singh (P.W.3) - who had seen the accused/appellants going from the side of his house towards burial place and after fifteen minutes he heard the voice of firearm from that side. Isham Singh (P.W.4) - this witness proved the panchnama, blood stain and sample of earth etc. before the court below. Dr. Y.S. Bisht (P.W.5) - this witness conducted the postmortem of the dead body of the deceased. Baljeet Singh (P.W.6) -is a retired inspector of police, who proved the chargesheet before the court below. Nerrapal Singh (P.W.7) - his witness pre­pared the panchayatnama, took the bloodstain and sample of earth etc. Sri Ajay Kumar Yadav (P.W.8) - this witness has visited the place of occurrence and prepared the site plans (Ext. Ka. 11 &12).