DHAUNKAL Vs. STATE OF U. P.

JUDGEMENT

(1.) The instant Criminal Appeal has been preferred by the convict /appellants against the judgment and order dtd. 22/2/2021 passed by learned VIth Additional Session Judge, Fatehpur in Case No.405 of 1996, whereby the appellants are convicted for charge under Sec. 302 IPC read with Sec. 149 IPC and sentenced to imprisonment for life for the said charge. The appellants Dhaukal, Bhaiya Lal, Rajendra and Ram Swaroop are convicted for charge under Sec. 302 IPC read with Sec. 149 IPC and sentenced to life imprisonment, and they are also convicted for charge under Sec. 148 IPC, sentenced to one year rigorous imprisonment for said charge. The appellant Buddhu is convicted for charge under Sec. 302 IPC and sentenced to imprisonment for life. He has also been convicted for charge under Sec. 148 IPC and sentenced to one year rigorous imprisonment for said charge. All the sentences are directed to run concurrently.

(2.) The factual matrix of the case in brief as discerned from the material on record is that FIR in the case was lodged on the basis of written report Ext. Ka-1 of deceased Raju alias Kamta in injured condition which was scribed by one Dharamveer Singh, at Police Station Kishanpur, District Fatehpur on 10/9/1995 at 6:30 PM, wherein he stated that he is a resident of village Rampatiya Ka Purwa, H/o Dariyapur, Police Station Kishanpur, District Fatehpur. His co-villager Dhaukal son of Jodhi had got a criminal case registered against him and his father in which he was bailed out. In view of this enmity the accused, co-villagers Buddhu and Dhaukal sons of Jodhi, Bhaiya Lal son of Ramdev, Rajendra son of Rambhawan and one Ram Swaroop son of Badal, R/o Gokulpur H/o Dariyapur, P.S. Kishanpur, came to him at his agricultural field lying in his village Rampatiya Ka Purwa, where he was weeding, his mother Mantoriya and one Hiruwa son of Kichdu were ploughing the field, as soon as he said to take meal, these persons came near him, and on being given a call by Bhaiya Lal to kill, him come whatever may, he would spend whatever money required, accused Buddhu, fired two shots from his fire arm at him which hit him on his right waist and knee of left leg, he fell down on the spot, the miscreants fled away after the incident. The incident was seen by mother of the injured and witness Hiruwa. As condition of the injured deteriorated, his dying declaration was recorded by Naib Tehsildar (Executive Magistrate) on 11/9/1995 at around 7:45 AM at District Hospital, Fatehpur, wherein he substantially reiterated his version in FIR with variation that in dying declaration he stated that first fire was shot at him by Buddhu, which hit him and thereafter Ramswaroop fired a shot at him by his gun and he fell down. He also stated the accused persons were on inimical terms with him and a scuffle (marpeet) occurred prior to ten days, in which he was sent to jail. The investigation of the case was entrusted to Sub Inspector Kamla Singh, who collected relevant papers including copy of FIR, got the inquest and postmortem examination on dead body of the deceased Rajesh who died during treatment on 17/9/1995 at 04:00 PM at District Hospital, Fatehpur. In postmortem examination report Ext. Ka-3, the cause of death has been shown as Toxemia and Septicemia as a result of ante-mortem injuries. The postmortem was conducted on 19/9/1995 at 04:30 PM and inquest was conducted on 19/9/1995 at 10:00 AM. The Investigating Officer carried out local inspection of the place of incident and prepared a site plan, which is marked as Ext. Ka-4. The medico legal examination of the deceased was conducted in injured condition at C.S.C. Khaga, which is marked as Ext.Ka-2. He was admitted in District Hospital, Fatehpur for his medico legal examination, where he died during treatment. The FIR was initially registered vide Crime No.136 of 1995, under Ss. 147, 148,149, 307 IPC at Police Station Kishanpur, District Fatehpur and same was altered into Sec. 302, 147, 148,149 IPC vide GD Report No.11, time 08:00 hours dtd. 21/9/1995 on receiving death memo of injured Raju alias Kamta from hospital.

(3.) The Investigating Officer, received report of Serologist regarding blood stained clothes of the deceased, which is marked as Ext. Ka-17. The Investigating Officer submitted charge-sheet against accused persons on finding their complicity in the offence marked, which is marked as Ext. Ka-5. The learned Civil Judge (Judicial Magistrate, Kharga) District Fatehpur took cognizance of the offence and committed the case to the court of session vide order dtd. 21/10/1996, where it was registered as ST No.405 of 1996, and was transferred to the Court of VIth the Additional Session Judge, Fatehpur. The learned trial judge, framed charge under Sec. 147, 148,302/149 IPC against all the accused persons and charge under Sec. 302 IPC against accused Buddhu simplicitor on 20/2/1997 on commencement of trial.