STATE OF U P Vs. BUDH SINGH

JUDGEMENT

(1.) This Government Appeal No. 2750 of 1982, under section 378 Cr.P.C. has been filed by State of U.P. against Buddhu Singh @ Udaipal Singh, son of Chote Singh, r/o village Sartholi, police station Kant, District Shahjahanpur against the impugned judgment and order dated 28.7.1982, passed by the then learned III Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 807 of 1981 (Crime No. 86, under section 302 IPC and Crime No. 87, under section 25 Arms Act), P.S. Kant, District Shahjahanpur, whereby he has acquitted the aforesaid accused respondents. The impugned judgment and order has been challenged on the ground that it is against the law and facts of the case; learned Sessions Judge has erred in holding that the evidence of eye-witnesses, Dharampal (P.W. 1), Kaptan Singh (P.W. 2) and Pt. Mool Chand (P.W. 4), is not consistent with the medical evidence; because the learned Sessions Judge erred in holding that it was highly improbable that Mangli Kachhi (hereinafter called as 'deceased') had left village Sartholi for Shahjahanpur in the morning of 17-18 March, 1981, without easing himself; because learned Sessions Judge erred in holding that since no scorching and tattooing were found around the gun-shot injury sustained by the deceased indicated that the shot was fired at him with the barrel of the pistol, which was almost in touch with the body of the deceased; because learned Sessions Judge erred in holding that the presence of the eye-witnesses (P.Ws. 1, 2 and 4) was doubtful at the time of the incident; because learned Sessions Judge erred in holding that the possibility of the incident, having taken place Some-time in the night is not ruled out; because learned Sessions Judge erred in holding the arrest of Buddhu Singh at the spot and the recovery of the incriminating pistol, live and empty cartridges from his possession, was doubtful; because the prosecution story was consistently supported by the testimony of the three eye-witnesses (P.Ws. 1, 2 and 4) and found material corroboration from the prompt F.I.R. of the incident and the medical evidence; because as per the evidence of Ram Ashrey Pandey (P.W. 5), Ballistic Expert, is there to prove that the recovered empty cartridges were fired from the pistol recovered from the possession of accused Buddhu Singh and still the learned Trial Court erred in holding that since the arrest of Buddhu Singh from the spot was doubtful, the evidence of ballistic expert was of no help to the prosecution; and lastly because the acquittal of accused Buddhu Singh is contrary to the weight of evidence on record and is bad in law, which has resulted in miscarriage of justice. The prayer was made to allow the appeal, set aside the impugned judgment and order of acquittal and convict and sentence accused Buddhu Singh, according to law.

(2.) In brief, Dharampal Singh, son of Jadav Singh, r/o village Sartholi, P.S. Kant, District Shahjahanpur, lodged his oral report to the aforesaid police station on 183.1981, at about 7.30 a.m. with an accusation that on 18.3.1981, at about 6.30 a.m., he was proceeding from his house to Shahjahanpur on a tractor trolley loaded with paddy. His uncle Kap-tan Singh and Mool Chand as well as Mangli Kachhi (deceased) were also boarding the tractor and trolley. Deceased was sitting on the left mudguard of the tractor while Kaptan Singh and Mool Chand were sitting on the paddy bags, loaded on the trolley. When the tractor and trolley reached on the canal culvert of village Emliya at about 06.30 a.m., accused respondent Buddhu Singh, son of Chote Singh, r/o village Sartholi, P.S. Kant, district Shahjahanpur, all of sudden, appeared on the trolley from back side. Kaptan Singh checked him as to why did he come on the tractor and where is he to go? but all of sudden, he came on the tool-box of the tractor and fired with his country made pistol causing gun shot injury to the deceased and thereafter jumped from the tractor and started running, but informant, who was driving the tractor also jumped and chased him. Kaptan Singh and Mool Chand came down and they also helped the informant in overpowering accused respondent Buddhu Singh at the nala at a distance of 5-7 steps from the tractor when he was after unloading country made pistol was trying to reload the same. The country made pistol along with live and empty cartridges were recovered from his possession. Buddhu Singh was tied with the rope with his waist and hand on the joint of the tractor and trolley. Mool Chand was sent to the village to inform the incident from where a number of persons came. Village Pradhan came on a different tractor. Leaving Kaptan Singh, Mool Chand and other persons near the tractor trolley and accused Buddhu Singh at spot first informant Dharampal Singh went to the police station on the tractor of Village Pradhan. He also took the country made pistol and empty & live cartridges recovered to the police station concerned where he handed it over to Head Constable and dictated his oral report to him. The arms and ammunitions were sealed by the Head Constable and oral report was reduced to writing. Check report was, accordingly, drawn and case was registered in the General Diary dated 18.3.1981, at 07.30 a.m. Since Mangli Kachhi has died at spot, therefore, inquest report was prepared and after observing necessary formalities, his dead-body was sent for postmortem examination in a sealed cover.

(3.) The autopsy was done on his body on 19.3.1981, at about 12.15 p.m. He was found aged about 55 years and duration of death was about one day. Following ante-mortem gun shot injuries were found at his body:--