NATHOO Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal has been filed by four appellants, namely, Nathoo, Dambar, Tilak and Kaloo alias Raja Ram against the judgment and order dtd. 18/2/1986, passed by 1st Additional District and Sessions Judge, Budaun in Sessions Trial No.353 of 1984 whereby, the appellants Nathoo and Tilak have been convicted under Sec. 302 IPC whereas, appellants Dambar and Kaloo alias Raja Ram have been convicted under Sec. 302 read with Sec. 34 IPC and all of them have been sentenced to imprisonment for life. The appeal of appellants Dambar and Tilak, consequent to their death, was abated vide order dtd. 28/11/2018 therefore, the appeal survives qua appellant no.1 (Nathoo) and appellant no.4 (Kaloo alias Raja Ram) only.

(2.) On a written report (Exb. Ka-3), dtd. 17/3/1984, submitted by Dharmpal Singh (PW-3), a first information report (FIR) was registered at police station (P.S.) Bilsi, district Budaun, as Case Crime No.57 of 1984, at 18.15 hours, of which Chik FIR (Exb. Ka-4) and GD entry (Exb. Ka-5) was prepared/ made by PW-7. The allegation in the FIR is that on 17/3/1984, at 3.00 p.m., the informant (PW-3) was informed by Pappu (PW-4) that informant's nephew Itwari (the deceased), on his way back home, after extending Holi greetings, near the shop of Liladhar Murao (not examined), was stopped by accused persons, namely, Nathoo (appellant no.1); Dambar (the appellant no.2); Tilak (the appellant no.3); and others, who requested Itwari (the deceased) to smoke a Beedi (a leaf rolled and filled with tobacco). But, when Itwari refused to accede to their request, Nathoo and Tilak (appellants 1 and 3) inflicted injury on Itwari with the help of Ballams, thereafter, on exhortation of Dambar (appellant no.2), Tilak fetched his gun from his house and fired at Itwari (the deceased), which killed Itwari. It was alleged that Dambar's son Kaloo (appellant no.4) was also with the accused persons. In the FIR it was also alleged that at the spot Devendra (PW-6) and others were there and the informant including informant's brother Shivraj Singh (PW-5) also arrived and when they arrived, accused persons started pelting brickbat from roof top, in which, PW-5 received injuries. Making all these allegations and stating that the body of the deceased is lying at the spot, FIR was lodged.

(3.) The medical examination of Shivraj Singh (PW-5) was conducted on 17/3/1984 at 06.45 p.m. by PW-2. The medical examination report of PW-5 (Exb. Ka-2), prepared by PW-2, reveals: