MASOOM Vs. STATE OF U P

JUDGEMENT

(1.) These two appeals are directed against the order and judgment of Sri R.C. Awashthy, 1st Additional District and Sessions judge Saharanpur, dated 6/8/1979 rendered in Sessions Trial No.1 of 1979 convicting and sentencing the appellants under section 302 I.P.C. read with section 149 I.P.C. to undergo Imprisonment for life. The appellants Masoom, Manphool and Phailloo arc further convicted and sentenced under section 147 I.P.C. to undergo R.I. for a term of two years. The appellant Titan and Rashid are also convicted and sentenced under section 148 I.P.C. to undergo R.I. for a term of three years. Both the sentences were directed to run concurrently.

(2.) The incident in question is alleged to have taken place on 19/8/1979 at about 6 P.M. at village Paniala in front of the house of the accused-appellant Manphool within the jurisdiction of police station Roorkee, District Saharanpur, According to the prosecution case as disclosed in the written First Information Report Ext. Ka 1 lodged by Ramesh Chanda P.W. 1 son of Natthu Pal at Police Station Roorkee Janeshwar Prasad had gone to attend the cases in the Court on his scooter and while returning from the court, he reached near the Chaupal of Manphool, Manphool gave him signal by showing hand to stop, Due to signal Janeshwar stopped his scooter, parked the same on the Kharanjaand went to the Chabutra of Manphool. All other four accused appellants namely Masoom, Phailloo, Rashid and Titan had come on the Chabutra, Masoom and Phaillo arc alleged to have caught hold of Janeshwar and Irfan and Rashid inflicted blows on him by knives carried by them with intention to commit murder, they also said that he was doing Pairvi of Baniyas of the village and was to be killed. On the cries raised by Janeshwar, Nand. Kishore P.W. 2, Shripal Singh P.W. 3, Asha Ram, Rishipal and many others reached the place of occurrence and witnessed the occurrence. On seeing the witnesses, the accused persons ran away taking Janeshwar Lo be dead.The motive alleged in the First Information Report is that in June 1978 a dacoity had taken place at the house of Lala Visheshwar Dayal of the village of Janeshwar in which accused Rashid was named in the report. Suresh Chand, a cousin brother of the deceased was deprived of his golden chain by the accused irfan. A report of that incident was -lodged against Irfan by Suresh Chand on 11/8/1978. On account of these two incidents Irfan and Rashid harboured enmity towards Janeshwar Prasad as he used to do pairvi of these cases. Janeshwar prasad was seriously injured and was taken to Roorkee Hospital by Shyam Singh and Anil Kumar P.W. 7 in a car. At Roorkee Hospital first aid had been given to Janeshwar and, thereafter, he was taken to the District Hospital Saharanpur. At the hospital at Roorkee the Investigating officer alleged to have recorded his statement under section 161 Cr. P.C. in the presence of the doctor which is Ext. Ka. 2 On the basis of the First Information Report Ext. Ka 1, chik report Ext. Ka 7 was prepared at the police station by Sri Satyavir Singh P.W. 6 and he also registered a case of attempt to murder in the G.D. at serial No. 37 copy of which is Ext. Ka 8. Janeshwar, however, had succumbed to his injures near Chhutmalpur on his way to the District Hospital Saharanpur.On receipt of the information of the death of Janeshwar at Police Station Roorkee, the case was converted into 302 I.P.C. at 7.45 P.M. the same day vide G.D. report No. 33 copy of which is Ext Ka .9.Sri Mohan Krishna Ashthana, A.S.I. P.W. 5 was present at the police station when the written report Ext. Ka 1 was lodged and he immediately started investigation. He reached the Hospital and recorded dying declaration of Janeshwar which is Ext. Ka 2 in presence of the doctor. He has stated in his statement that before recording the Dying Declaration Ext. Ka. 2 he read out First Information Report to the injured. He also recorded the statements of P.W. 1 Ram Chanda, P.W. 3 Shri Pal, P.W. 2 Nand Kishore and P.W. 7 Anil Kumar. Janeshwar, as stated earlier died on his way to Hospital and his dead-body; was taken to B.C. Hospital, Saharanpur where he was declared dead by the doctor, After completing the inquest report Ext. Ka 12 the dead body was despatched for postmortem examination. The defence has admitted the genuiness of the papers Ext. Ka 12 and Ext. Ka 13 to Ext. Ka 15.

(3.) The post-mortem examination on the dead body of Janeshwar was conducted on 20.8.1978 at 1 p.m. in the District Hospital, Saharanpur by Dr. A.K. Pant P.W. 8 and he found the following ante mortem injuries: 1. Incised wound 4 cm. x 1/2 cm x muscle deep on left side of face 1-1/2 cm below outer angle of left eye. 2. Incised wounds cm x 1-112 cm. x bone deep on right upper 113rd of front of upper arm. 3. Incised wound 9 cm. x 4 cm. x cavity deep on front of abdomen 6 cm. above and medial to umbilicus omentum and loop of intestine are coming out. 4. Incised wound 6 cm. x 3 cm x cavity deep on right side of abdomen 10 cm. above the umblicus at 10 clock position comentum and loop of intestine are coming out 5. Incised wounds cm. x 2 cm x cavity deep on right side of abdomen 26 cm. below right nipple- at 7 clock position mention arid loop of intestine are coming out. 6. Incised wound 4 cm x 1/2 cm. x muscle deep on base of left index finger. The heart was found to be empty. There was about 11/2 litres of blood in abdominal cavity and about 150 Millitires coffee coloured liquid in the stomach, His large intestine was full of faecal matter while small intestine and bladder were found empty In the opinion of the doctor, Janeshwar died due to shock and haemorrhage due to abdominal injuries and the injuries were in the ordinary course of nature sufficient to cause his death.