BALLAN Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Ballan son of Hashmat AH aged 27 years, resident of town Nehtore in the district of Bijnor, who has been convicted by the learned Sessions Judge of Bijnor under Section 302, I. P. C. and Section 19 (f), Arms Act. He has been sentenced to death under the former section and to one: year's rigorous imprisonment under the latter section. Along with the appeal there is the usual reference by the learned Sessions Judge for the confirmation of the sentence of death.

(2.) BRIEFLY stated the case for the prosecution was as follows. The appellant was wanted in connection with three dacoities alleged to have been committed by him in village Moosepur, mangal Khera and Sahanpur Navada. He had been absconding and he could not be arrested by the police in spite of several raids at his house and in spite of proceedings having been taken against him under the provisions of Ss. 87 and 83, Criminal P. C. On 15-6-1954 sub-inspector Ram Marti Singh, station officer of police station Nehtore received information that the appellant was present at his house. The sub-inspector arranged a raid consisting of Radhey Shiam head constable, Rajendra Prasad constable and several other constables, and he took along with himself five other persons from the public inclusive of nanhey and Abdul Salam who were residents of that locality. The house of the appellant was besieged. Sub-inspector Ram Murti Singh along with head constable Radhey Shiam, constable Rajendra prasad, and Nanhey Abdul Salam and several others entered the house of the appellant. The appellant was lying on a cot inside the 'kothri' lacing west, the 'kothri' having been situate by the side of his inner courtyard. On seeing the raiding party inside the kothri the appellant slipped into a grain-bin which was just near the cot. Sub-inspector Ram Murti Singh asked the appellant to come out of the grain-bin. The accused did not come out; instead he fired a shot with a country-made pistol (Ex. 1) at the police party. Ram Murti Singh, who was standing in the forefront, seeing that he was firing towards the police party ducked and luckily saved himself. The discharge from that pistol hit constable Rajendra Prasad who was at a short distance from the sub-inspector. He was hit on the upper part of the chest. In agony Rajendra Prasad came out of the 'kothri' and lell down dead in the 'sehan' at a distance of about six feet from the door of the 'kothri'. Ram Murti Singh then fired two shots with his service revolver towards the grain-bin. The appellant, it is alleged, came out of the grain-bin at that juncture with the country-made pistol in his hand. Sub-inspector Ram Murti Singh at great risk to himself held the appellant by his hand and grappled with him in order to snatch away thy pistol from him. The other members of the raiding party also came to his aid in overpowering the appellant. The appellant and the sub-inspector received certain injuries in that scuffle; the pistol was taken away from the, hand of the appellant and he was secured. Sub-inspector Ram Murti Singh at once made a search of the grain-bin and found five. 12 bore live cartridges inside it. He prepared recovery list. A fired cartridge was found in the barrel of the pistol. Sub-inspector Ram Murti Singh noticed, marks of blood" inside the kothri where constable Rajendra Singh was shot at. He also found a cardboard disk inside the 'kothri' and blood in the 'sehan' where Rajendra Prasad had ultimately fallen down. He sent the accused to the police station together with a written report where a first information report was prepared on its basis. This report was lodged on the same day at 6. 45 p. m. within 45 minutes of the occurrence, the police station having been at a distance of two and a half furlongs from the place of occurrence. On receiving the register of inquest reports the sub-inspector prepared an inquest report; and the dead body was then sent to the mortuary at Bijrior. The injuries of Ram Murti Singh were examined by Dr. R, P. Gupta, Medical Officer in charge of the dispensary at Nehtore on 15-6-1954 at 9 in the night. He had a contusion on the left ring finger, two abrasions on the back of right middle and a swelling on the whole right thumb. Injury No. 1 was caused by pressure between some hard substances. Injury No. 4 was caused by striking against some hard substance and injuries Nos. 2 and 3 were caused by tooth-bite. The medical evidence further disclosed that these injuries were caused to ram Murti Singh exactly at the time when the prosecution alleged that they had been caused.

(3.) THE post-mortem examination over the dead body of Rajendra Prasad constable was performed by Dr. V. N. Srivastava on 16-6-1954 at 12 in the day. The deceased was a young man of 28 years. The probable time since death at the time of examination was about eighteen hours. He had a contusion 3/4" x 1/4" on the right side of the face one inch above the angle of mandible. He had another contusion 1/2" x 1/4" on the right cheek one inch above injury No. 1. He had gunshot wounds, nine in number each measuring 1/3" x 1/4" at the back of neck and right side of upper chest in an area of 5" x 4". The first, third and fifth ribs in the posterior side were fractured. The right lung showed four holes covered with blood clots. In the opinion of the doctor death followed shock and haemorrhage due to gunshot injuries.