CONSTABLE HARISH CHAND PANDEY Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Code of Criminal Procedure ), is directed against the judgment and order dated 29th of May 1995, passed by Learned IV Addl. Sessions Judge, Nainital, in Sessions trial No. 296 of 1992, whereby accused/Appellants Harish Chand Pandey has been convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced to imprisonment for life and also directed to pay fine of Rs. 1,000/ -. He has been directed to undergo additional imprisonment for three months in default of payment of fine.

(2.) HEARD Learned Counsel for the parties and perused the lower court record.

(3.) THE Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Code of Criminal Procedure, appears to have committed the case to the court of Sessions, for trial. (Earlier Khatima was part of District Nainitai). On 12th of August 1993, IV Addl. Sessions Judge, Nainitai, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under Section 302 of I.P.C. against the accused Constable 189 Armed Police, Harish Chand Pandey. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Head Constable Suraj Bhan Sharma (informant); P.W. 2 Anand Prakash Rastogi (in whose house the accused and deceased were on security duty); P.W. 3 Armed Police Constable 482 Devi Dutt Bhatt (who was at some distance at the time of incident); P.W. 4 Armed Police Constable 379 Prem Singh (an eyewitness, who caught hold of Harish Chand Pandey and took the rifle from him after the fires were shot at the deceased) and P.W. 5 Inspector Vinod Kumar Sharma (the Investigating Officer). The genuineness of the postmortem examination report and forensic science expert's report were admitted by the defence counsel. The oral and documentary evidence was put to the accused under Section 313 of Code of Criminal Procedure, in reply to which the accused/Appellant admitted that in the intervening night of 22nd/23rd of August 1992, he along with deceased Head Constable Ram Das, Head Constable Suraj Bhan Sharma (P.W. 1), Constable Devi Dutt Bhatt (P.W. 3) and some other constables were posted as security guards in Prabhat Farm (also known as Rastogi Farm), within the limits of police station Khatima. In his statement under Section 313 of Code of Criminal Procedure, the accused/Appellant Constable Harish Chand Pandey further admitted that at the time of incident Constable Devi Dutt Bhatt (P.W. 3) and Constable Prem Singh (P.W. 4) were on the duty on the roof of house situated in Rastogi Farm, and Head Constable Ram Das was also there on said roof with him (accused). The accused/Appellant also admitted that at the time of incident Rifle No. 84C/5209 with belt containing 50 cartridges was with him. However, as to the rest of the evidence he denied the same, as false. No evidence in defence was adduced. The trial court after hearing the parties found accused/Appellant Constable Harish Chand Pandey guilty of the charge of offence punishable under Section 302 of I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life, and also directed to pay fine of Rs. 1,000/ -. The trial court directed that in default of payment of fine, the convict shall undergo additional imprisonment for a period of three months. Aggrieved by said judgment and order dated 29th of May 1995, passed by the IV Addl. Sessions Judge, Nainital, in Sessions Trial No. 296 of 1992, this appeal was filed before the Allahabad High Court by the convict on 1st of June 1995, where it was admitted on 17th of August 2000. The appeal is received by transfer to this Court under Section 35 of the U.P. Re -organization Act, 2000 (Central Act No. 29 of 2000), for its disposal.