JUGENDRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These are two connected criminal appeals. Criminal Appeal No. 1159 of 1991 has been filed by Jugendra s/c. Bhudev against the ORDER and order dated 14.6.199 1 of Sri V.K. Agarwal, 1st Additional Sessions Judge, Aligarh in S.T. No. 277 of 1985 convicting and sentencing him u/s. 302/149 I.P.C. to death, u/s 307/149 I.P.C. to two years R.I. Criminal Reference No. 3 of 1991 also arises out Jugendra. The State of U.P. has filed Government acquittal of Bachchu Singh and Ranbir Singh sons of Vijaypal Singh and Munesh and Balbir sons of Mahendra Singh. Since the two appeals and reference arise out of the same ORDER.

(2.) I have perused the ORDER of brother Justice G.D. Dubey. With profound respect I beg to differ with the said ORDER and hence I am giving my own reasons and conclusions below. The incident in question is alleged to have taken place on 8.5.1984 at 1.20 P.M. and a report gives a detailed expose to the prosecution case. According to the First Information Report, the incident had taken place in the Civil Court Campus, Aligarh in the verandah in front of there court of IV Additional Sessions Judge, Aligarh on the first floor of the court building. It is alleged that the three deceased Nepal, Yogendra and Ghanendra sons of Kuber Singh were facing trial in a murder case of P.S. Delhi gate, District Aligarh and on the fateful day they were escorted by the two constables to the court of IV Additional Sessions Judge, Aligarh. The presiding Officer was not present in the court and therefore, the two constable alongwith Nepal, Yogendra and Ghanendra sat down on a bench in the verandah outside the court room. Smt. Sumitra, mother of the victims and Manvendra Pal brother of the victims also arrived and were having a conversation with them. Smt. Sumitra disclosed that hakim had brought Munesh and Bachchu on his motor-cycle and that Panna, Jugendra and Gavendra had also come on cycles for doing pairvi Mean while one Shams had Ali also arrived and sat nearby. Soon, thereafter, six persons came there through the stair case. They were Hikim Singh, followed by Jugendra (applicant), Bachchu, Ranna, Munesh and Gavendra. Hakim exhorted and pointed out that the three deceased were sitting there and they should fulfil the oath administered to them by Ballo. The five companions of Hakim Singh started firing from their country made pistols towards Nepal Yogendra and Ghanendra. The escorting Constables Narottam Lal and Bhikam Singh tried to intervene and arrest the six assailants. In the said course Constable Bhikam Singh also suffered injuries. Thereafter, the assailants started escaping. A chase was given and assailants Jugendra and Gavendra who were trying to escape on a cycle, were arrested Singh could manage to escape on his motor-cycle with other two assailants. The sixth assailant melted away somewhere in the melee. The F.I.R. goes on to state that Hakim Singh etc. were still being chased by the police. The two-miscreants who had been apprehended gave out their names as Jugendra sb Bhudev and Gavendra sb, Bhagwan Singh, residents of village Lohsara, P.S. Lodha, district Aligarh and also disclosed the names of the remaining assailants as Ranna, Munesh, Hakim Singh and Bachchu. In the meantime several members of the public and Sub-Inspector Raghunath Singh and Constables of P.S. Civil Lines arrived and searched the persons of Jugendra and Gavendra. A Counter-made pistol with mis-fired cartridge in its barrel was found concealed under the pants of Jugendra and two live cartridges were also recovered from the right pocket of his pant. From Gavendra two live cartridges were recovered. The recovered articles were sealed on the spot and a memo was prepared. Constable Bhikam Singh and Smt. Sumitra were despatched on a police vehicle for medical aid. When the informant Constable Narottam Singh, returned to the spot, i.e., in the verandah, in front of the court of Additional Sessions Judge, the three injured were found in-a precarious condition and hence they were also despatched in a police vehicle for treatment. Constable Narottam Singh proceeded to P.S. Civil Lines in the company of other police personnels and lodged report as mentioned above at 3.10 p.m. It is stated in the F.I.R. by Head Constable Narottam Lal that he along with Jugendra and Gavendra as well as Sub Inspector Raghunath Singh and other police personnel had came to police station to lodge the report. It is noteworthy that in the F.I.R. the number of assailants who participated in the crime is given as six and Balvirs name has not been mentioned. The role of firing is assigned to five persons and the name of Balbir the seventh accused is alleged to have been disclosed by the arrested accused.

(3.) On the lodging of the F.I.R. the case was registered as Crime No. 198 of 1984 U/S 307/1091 120B/147/148 I.P.C. and Crime Nos. 199 and 200 of 1984 u/s. 25 Arms Act at P.S. Civil Lines, Aligarh vide G.D. Entry No. 30. The same day information was received at P.S. Civil Lines, regarding the deaths and the case was altered to one u/s. 302 I.P.C. vide G.D. No. 31 of the same date. It is significant to note that the time of G.D. No. 31 is noted as 15 hours, that is 3 p.m. It was later on altered as 15.40 hours by pen. The G.D. entry of registration of the case, that is G.D. No. 30 of 8.5.1984 of 3.10 p.m. mentions that S.I. Raghunath Singh along with Constable Rakesh Kumar and Constable Raghubir Prasad were despatched for holding inquest on the dead bodies. It may be remembered that till then the case was one under Section 307 I.P.C. only. The prosecution has tried to retrieve itself out of this discrepancy by in vain. I shall advert to this aspect of the case at the appropriate stage in this ORDER. By the order of the Superintendent of Police, Aligarh the investigation was handed over to S.I. Raghuraj Singh Tyagi P.W. 8. The three injured Nepal, Yogendra and Dhanendra had died on their way to Hospital. After the necessary inquest the bodies were sent for post-mortem examination which was conducted by P.W. 7 Dr. S.R.P. Mishra. The Doctor had noted the following injuries on the person of deceased Ghanna alias Ghanendra Sing: Ante-mortem Injuries