GANDHARV SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Criminal Appeal No. 650 of 1979 has been filed by Gandharv Singh Whereas Criminal Appeal No. 674 of 1979 has been filed by Rajendra Singh and Asha Ram. Both these appeals are directed against the ORDER and order dated 13/2/1979 passed by Sri. J.N. Tandon, III AddI, Sessions Judge, Mainpuri convicting the appellants under see 302 read with 149 I.P.C. and un4er Sec. 148 I.P.C. The appellants were awarded sentence of life imprisonment for the offence under sec. 302/149 I.P.C. and two years rigorous imprisonment for the offence under Sec. 148 I.P.C. Both the sentences were, however, directed to run concurrently. By the same ORDER and order the other accused persons namely Jai Dayal, Radhey Ratan Singh and Smt. Sumitra were given the benefit of doubt for the charges under sec. 302 read with 149 I.P.C. and they were consequently acquitted.

(2.) The occurrence has taken place on 26/3/1976 at the time of sun set and the First Information Report was lodged on 27/3/1976 at about 8.30 A.M. at police station Kotwali, district-Mainpuri. The distance of village Burrah, where the occurrence has taken place, was 12 miles from the police station Kotwali. Suresh aged about 15 years was the deceased.

(3.) The First Information Report contains the prosecution story. It was lodged by Nawab Singh (P.W 2). It was to the effect that on the date of occurrence Suresh was driving bullock-cart keeping the harvested crop of wheat. When it reached near the naali of tube well of Bachchan, Suresh deceased came down from the bullock cart to drink water. In the meanwhile Rajendra armed with country made pistol (Tamancha), Gandharv, armed with a gun, Jai Dayal and Asha Ram armed with country made pistols; whereas Smt. Sumitra and Ratan Singh armed with lathis and Radhey armed with Kanta came there. Smt. Sumitra exhorted the accused to kill the deceased with the fire-arm so that her husbands murder may be compensated. Immediately thereafter the appellants fired from their respective weapons upon Suresh, which hit near his eye and he fell down. He was in the bullock cart when he raised alarm. Thereafter Kayam Singh, Gulab Singh and Indra Jeet came there and saw the occurrence. The other details have been given in the impugned ORDER and order. The three eye witnesses namely Kadori (P.W. 1) (At page 12 of the paper book), Nawab Singh (P.W. 2) and Kayan Singh (P.W. 3) have been examined in support of the prosecution version. Whereas Dr. B.K. Mishra (P.W. 5) has been examined who conducted the post mortem examination and ascertained the ante-mortem injuries. The injuries found on the body of the deceased are mentioned as follows, as are noted in the postmortem report conducted on 28/3/1976: 1. Fire arm wound of entrance 1.5 cm x 1.8 cm. x whole skull deep through and through, corresponding to wound of exit given below on head left side 3.5 cm behind the left ear at 3 oTclock position margins inverted, no blackening, tattooing or scorching seen. Margins contused. 2. Fire arm wound of exit 2.5 cm. x 3.0 cm. x whole skull deep, through and through, corresponding to wound of entrance, given above, on face right side, just below the right eye, margins averted and no blackening tattooing or scorching seen. The cause of death was shock and haemorrhage due to ante mortem injuries. Ram Dutt Dixit (P.W. 6) and Vikram Singh (P.W. 7) were the investigating officers. The learned Sessions Judge has relied upon .the Statements of prosecution witnesses and has accorded the conviction and sentence as indicated above.