NARESH Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as cr. P. C), is directed against the judgment and order dated 18. 10. 1995, passed by learned First Additional Sessions Judge, haridwar, in Sessions Trial No. 39 of 1992, whereby appellants namely Naresh, Tota ram, Babla alias Dinesh, Ramesh alias kallu and Gadha, have been convicted under Sections 147 and 302 read with Section 149 of Indian Penal Code, 1860 (hereinafter referred as I. P. C. ). Each one of the convicts has been sentenced to rigorous imprisonment for a period of two years under Section 147 I. P. C. , and imprisonment for life under Section 302 read with Section 149 ipc.

(2.) HEARD learned counsel for the parties and perused the lower court record.

(3.) PROSECUTION story in brief is that jitendra (deceased) was an accused in the case of murder of brother of accused/appellant Tota Ram. Due to this reason, Tota Ram harboured enmity with the deceased. On 1. 12,1991, Jitendra (deceased) had gone to the house of Gulshan, resident of bilkeshwar Colony. At about midnight, the two namely Jitendra and Gulshan, started to proceed towards the house of Jitendra. When they reached near tea stall of one suraj, opposite T. B. Hospital, accused/appellants Tota Ram, armed with stones, naresh and Babla, armed with bricks, ramesh alias Kallu and Gadha, armed with bamboo lathies, surrounded Jitendra. Tota Ram said <IMG>nana_560_crimes3_2009.jpg</IMG> (He has killed my brother kill him! ). On this, five accused/appellants started assaulting Jitendra with bricks, stones and lathies. They continued to give blows to him till his head got badly crushed and he died. The incident was witnessed by sanjay (PW1) and Gyasi (PW3 ). There was electric light at the place of the incident. Sanjay (PW1), was a minor boy, aged 16 years, who gave information of the incident to Meghraj (PW2), uncle of the deceased, in early hours on 2. 12. 1991. Thereafter, meghraj went to the Police Station Kotwali, haridwar, and lodged First Information report (Ext. A1), after getting it scribed through Ashok (DW1) at about 6:10 a. m. On the basis of said report, crime No. 1184 of 1991, was registered by the police, relating to offence punishable under Section 302 i. P. C. , against all the five accused/appellants, and entry was made in the general diary at serial No. 7. The investigation was taken up by Senior Sub-Inspector Bagh singh Negi (PW7 ). Sub-Inspector Prem Lal sharma (PW 5) accompanied the Investigating Officer, to the spot to take the dead body of the deceased in his possession, and prepared inquest report (Ex. A3) at about 8. 10 a. m. on the very day (2. 12. 1991 ). Police also got prepared sketch of the dead body (Ex. A4), police form No. 13 (Ex. A5), and other necessary papers and sent the dead body of jitendra for post-mortem examination. Dr. O. P. Sharma (PW4) conducted post-mortem examination on the dead body of the deceased op 2. 12. 1991, at 1. 20 p. m. He recorded as many as 9 ante-mortem injuries on the face and body of the deceased. He also found fractures in the bones of head and face, and prepared autopsy report (Ex. A2 ). The Medical Officer opined that deceased had died of shock and haemorrhage due to ante-mortem injuries. The Investigating Officer inspected the spot, where the incident had taken place, prepared site plan (Ex. A9), and interrogated the witnesses. He also took blood stained stones and bricks from the place of the incident and prepared recovery memo (Ex. A8) on 2. 12. 1991. After completing the investigation, the Investigating Officer submitted charge-sheet (Ex. All), against all the five accused namely tota Ram, Naresh, Babla alias Dinesh, ramesh alias Kallu and Gadha, for their trial in respect of offences punishable under Section 147, 148 and 302 I. P. C.