JEEVAN SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) PRESENT appeal is directed against the judgment and order dated 30.11.1999 passed by Special Judge, CBI/Additional Sessions Judge, Nainital vide which accused appellant Kali alias Kulwant has been convicted for the offence punishable under section 307 Indian Penal Code (hereinafter referred to as `IPC') and sentenced to undergo 5 year rigorous imprisonment and to pay fine of Rs. 500/- while accused appellant Jeewan Singh has been convicted for the offence punishable under section 307 IPC read with section 114 IPC and sentenced to undergo 5 years rigorous imprisonment and to pay fine of Rs. 500. In default of payment of fine, they have been ordered to further undergo imprisonment for 15 days simple imprisonment.

(2.) THE facts in brief are that on 15.12.1995, Munsha Singh submitted a written complaint (exhibit Ka 1) before the Incharge, police station Nanakmatta stating therein that he along with his brother Jageer Singh had gone to attend the engagement ceremony of their cousin brother's (Dilip Singh) son at village Sunkhari Khurd. He had arranged a party on the said occasion. Jeewan Singh along with his son-in-law Kali alias Kulwant was also present in the party. At about 4.00 p.m., Jeewan Singh and Kali alias Kulwant had taken their meals and thereafter, they were creating lot of noise in the party, therefore, Jageer Singh suggested Jeewan Singh and Kali alias Kulwant that since they had already taken their meals so they should leave the place so that other persons may also take their meals. On this Jeewan Singh exhorted and asked his son-in- law Kali alias Kulwant that "ns[krk D;k gS ekj lkys dks". On this accused Kali alias Kulwant took out his country made pistol from the pocket of his pants and fired at Jageer Singh, as a result of which the pellets hit on the head and neck of Jageer Singh. THE occurrence was witnessed by Santa Singh, Harbans Singh. Jageer Singh was immediately removed to the hospital by Sher Singh. Jageer Singh was medically examined at 05.00 p.m. vide medico legal report exhibit Ka-2. After medical examination of Jageer Singh in the hospital, complainant went to the police station and submitted written complaint (exhibit Ka-1) on the basis of which chick FIR (exhibit Ka-5) was recorded at 05.45 p.m. in police station Nanakmatta. THE investigation was conducted by Jitendra Kumar Tyagi, who recorded the statements of Munsha Singh and Jageer Singh. He arrested both the accused from their house on 17.12.1995. On 18.12.1995 site plan of place of occurrence was prepared. THE blood stained headgear (turban) of Jageer Singh was sealed in separate parcel and taken into possession.

(3.) LEARNED counsel for the appellants submitted that both Munsha Singh and Jageer Singh are interested witnesses being brothers. The prosecution has not produced any independent witness though many persons were present in the party, even Dilip Singh at whose house alleged occurrence took place, has not been produced, therefore, prosecution case suffers from serious doubts. LEARNED counsel further argued that even the alleged place of occurrence is not proved by any cogent evidence. Admittedly, no blood stained earth was lifted from the place of occurrence, and it can safely be assumed that alleged occurrence took place somewhere else. It was further submitted by the learned counsel for the appellants that as per both the witnesses, clothes of Jageer Singh were blood stained but his clothes were not sent for serological examination to the Chemical Analyst nor clothes were produced in the court.