MASSA SINGH AND OTHERS Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.) is directed against the judgment and order dated 15 -03 -1985, passed in Sessions Trial No. 78 of 1980, by the then learned 1st Additional Sessions Judge, Nainital, whereby appellants Kundan Singh, Dara Singh, Dalip Singh and Daljit Singh, have been convicted under Section 302/149, 324/149, 323/149 and under Section 148 I.P.C. and each one of them has been sentenced to undergo imprisonment for life under Section 302/149 LP.C., rigorous imprisonment for two years under Section 324/149 LPC., rigorous imprisonment for six months under Section 323/149 LPC. and rigorous imprisonment for one year under Section 148 LPC. Appellant Massa Singh has been convicted and sentenced to imprisonment for life under Section 302/149 LPC., rigorous imprisonment for two years under Section 324/ 149 I.P.C., rigorous imprisonment for six months under Section 323/149 LPC. and rigorous imprisonment for further six months under Section 147 LPC. Appellant Daljit Singh is further convicted and sentenced to undergo rigorous imprisonment for five years under Section 394 LPC. and appellant Jiwan Singh is convicted and sentenced to undergo rigorous imprisonment for three years under Section 411 of I.P.C.

(2.) WE heard learned counsel for the parties and perused the entire record.

(3.) PROSECUTION story, in brief, is that Smt. Lakhi Mandai R/o village Rambagh within the limits of police Out Post Dineshpur, P.S. Rudrapur, was opposed to the proposal of her sister -in -law Smt. Jaimani to sell her land to Massa Singh (appellant). On 26 -12 -1979, Jaimani, Krishna Pad and Bhudhar, took her husband Sudhir Mandai with them who did not return back. On 28 -12 -1979, Sudhir Mandai's wife Smt. Lakhi Mandai, made a report (Ext. A -2) of that incident at Police Out Post Dineshpur. On said report, Head Constable Gopal Dati (P.W.2) sent Constable Janardan Bhatt (P.W.3) and Constable Abbal Singh (PW.8) to village Rambagh to enquire into the matter. On said date, i.e. 28 -12 -1979 at 6:30 PM. when the said two constables reached the village, they could not find Krishna Pad who was accused in said matter, there. While the policemen were on their return from the village, Smt. Lakhi Mandai, informed that Krishna Pad has now reached in his house. On this, they went back again to village Rambagh and brought Krishna Pad to Out Post Dineshpur at about 9:00 P.M. for interrogation. But at 9:30 P.M. on the same day i.e. 28 -12 -1979, Smt. Lakhi Mandai along with one Kishore Kumar and Jagdeesh Lal (P.W. 4), again came to Police Out Post Dineshpur and reported that appellant Massa Singh alongwith his five sons namely, Kundan Singh, Dalip Singh, Daljit Singh, Dara Singh (all appellants) and Jagdish Singh (who died in encounter) along with other 4 -5 bandits, armed with lethal weapons have reached in the village to kill her (Smt. Lakhi Mandai). On this complaint, Constable Janardan Bhatt (P. W. 3), armed with a fire arm Musket No. 97383 and 20 live cartridges, Constable Abbal Singh (P.W. 8) armed with Musket No. 99552 and 20 live cartridges, Con,stable Narendra Singh and Home Guard Anil Dhali (deceased), both armed with 'LATHIES' (sticks), were sent to village Rambagh. At about 10:00 P.M. on 28 -12 -1979 when the police personnel along with Lakhi Mandai, Kishore Kumar and Jagdeesh Lal (P.W.4), reached near culvert, they saw appellant Massa Singh along with his five sons and 4 -5 other bandits coming towards them through the field. When the policemen flashed torches and asked the miscreants why they have come there, first, appellants overpowered Constable Abbal Singh, who fell down. Appellant Daljit Singh snatched his Musket (No. 99552). Constable Anil Dhali (deceased) in an attempt to rescue Abbal Singh, was also assaulted by the appellants who suffered injuries. Seeing, compelling circumstances, Constable Janardan Bhatt (P.W. 3) opened fire at the miscreants. Accused persons including appellants, leaving the injured at the site, fled from the village along with the looted Musket. Hearing the noise off ring, villagers Ranjan, Mukund and Jitendra also reached at the place of occurrence. Constable Janardan Bhatt with the help of others, took injured Constable Abbal Singh and injured Home Guard Anil Dhali to hospital at Dineshpur. Anil Dhali succumbed to the injuries on way to hospital. Constable Janardan Bhatt (P.W. 3) thereafter went to Police Out Post Dineshpur and lodged First Information Report (Ext. A -5) against accused persons including the appellants. Report was recorded by Head Constable Gopal Datt (P.W.2) who made necessary entry in the general diary (extract of which is Ext. A -6). Head Constable Gopal Datt went thereafter to P.S. Rudrapur by then it was 00.05 of 29 -12 -1979. Meanwhile, Dr. Pramod Kumar (P.W.1 ) medically examined injury of Constable Abbal Singh on 28 -12 -1979 at 11 :20 P.M. at hospital Dineshpur and prepared injury report (Ext. A -1). After the inquest report (Ext. A -17) and other papers prepared, Constable Lallu Lal (P.w. 9) along with another Constable took the dead body of Home Guard Anil Dhali in a sealed cover to civil hospital, Haldwani for post mortem examination. On 30 -12 -1979, Dr. Mohan Singh Laspal (P.W.7) conducted autopsy on the dead body of Constable Anil Dhali and prepared report (Ext. A -10). The Medical Officer opined that cause of death 01 the deceased (Anil Dhali) was shock and haemorrahage due to ante mortem injuries. In the incident, Jagdeesh Singh S/o appellant Massa Singh also suffered injuries and died on 04 -01 -1980. His dead body was also taken into custody by the police and inquest report (Ext. A -11 ) was prepared. The same was sent for post mortem examination. The post mortem examination on the dead body of Jagdeesh Singh was conducted by Dr. S. Tandon (P.W. 10) on 05 -01 -1980. The said Medical Officer opined that deceased (Jagdeesh Singh) died of shock and peritonitis due to ante mortem injuries. The crime was investigated by Inspector Kishan Singh (P.W.12), who inspected the place of incident on 29 -12 -1979, prepared site plan (Ext. A -16), took the simple soil and blood stained soil and prepared memo (Ext. A -7). The Investigating Officer on 05 -01 -1980, prepared site plan (Ext. A -23) and from the place of occurrence, swords used in the crime, were recovered and prepared memo (Ext. A -9). After recording the statements of the witnesses, the Investigating Officer submitted charge sheet (Ext. A -24) against seven accused persons namely, Massa Singh, Kundan Singh, Dalip Singh, Daljit Singh, Dara Singh, Jiwan Singh and Krishna Pad.