SADHU SINGH Vs. STATE OF U P

JUDGEMENT

(1.) - This appeal has been filed by Sadhu Singh and Sonpal Singh against their conviction under section 324 Indian Penal Code and a sentence of two years R.I. recorded by Sri P. B. Mashiwal. III Additional Sessions Judge, Moradabad vide his judgment dated 1st June 1976. The case against the appellants was that they along with others framed an unlawful assembly, the only object of which was to kill Vijai Singh and they committed rioting armed with deadly weapons. It is said that with that object on the 30th July, 1968 at about 6.30 P.M. in village Kalyanpur they went to the house of Yijai Singh, P.W. 1 who was sitting in his Baithak. The appellants were armed with pistols while their companions who have been acquitted by the learned Sessions Judge were armed with lathis and spears. They surrounded Yijai Singh and Sonpal Singb told him that he would be set right for lodging a report against Dig Pal Singh. Sadhu Singh appellant fired but Yijai Singh went inside his house and bolted it from inside and the pellets thus could not hit him but struck at the door. The complainant wanted to run away from the house but Son Pal Singh and Sadhu Singh appellants along with others jumped inside the house. Then Yijai Singh started running to save himself Sonpal appellant then fired which hit him at the back. He rushed to his room and bolted it from inside and Sadhu Singh fired a second time which did not hit him but the pellets struck at the door. The witnesses then arrived and intervened and pacified the accused who went saying that they would come another time and do away with him. Yijai Singh went to P.S. Mughalpura and lodged a report at 1.40 P.M. The report, Ext. Ka-1 was lodged at 10.40 P.M. This report was taken down by Rajendra Prasad, Head Constable, P.W. 7 who registered the case in the general diary, copy of which is Ext. Ka-3. The shirt or by Vijai Singh was taken into possession and a memo Ext. Ka-5 was prepared. Dr. D. P. Manchana, P.W. 6 examined the injury of Vijai Singh at 1 A.M. on the 31st July, 1968 and found gun shot wounds mentioned in the report Ext. Ka-4, Sri L. N. yagi, P.W. 8 started the investigation of the case, took down the statements of the witness, inspected the locality and prepared the site plan Ext. Ka-4. Thereafter the investigation was taken up by Sri Chandan Singh Visht, P. W. 5 who took down the statement of Abdul Karim and submitted a charge sheet, Ext. Ka-31 against the accused.

(2.) The accused denied the allegations against them and attributed their implication in this case owing enmity. The learned Sessions Judge recorded a conviction under section 324 against the appellants but acquitted all the other co-accused.

(3.) I have heard the teamed counsel for the appellants and the learned State counsel at great length and come to the conclusion that this appeal must be allowed and the conviction recorded by the learned Sessions Judge must be set aside.