STATE OF U.P. Vs. ISHWARI AND OTHERS

JUDGEMENT

(1.) This is a Government appeal against the order dated 22.9.1976 passed by Sri Y.P.Singh, the then IInd Additional Sessions Judge, Agra, in Sessions Trial No. 189 of 1974, under Sections 302, 307/149, 147, 148 and 325/149 Indian Penal Code whereby he found the accused-respondents to be not guilty for the said offences and acquitted them of the same. The deceased in this case was Dharm Singh. Dharm Singh had a brother Ram Singh. Bahadur Singh is the son of Deceased Dharam Singh. Bahadur Singh has two sons Mahendra Singh Devendra Singh, allof whom were injured in this occurrence. Mahendra Singh was the informant and commplainant P.W.3). Accused-respondents Gayani and Aidal are real brothers inter se being sons of Girwar. Bhanwar Singh and Soran, accused-respondents, are real brothers inter se being sons of Bhogi Ram. Narain and Betal, accused-respondents are sons of Pitamber. The prosecution story as disclosed in the statement of Mahendra Singh, complainant (PW.3) at the trial was that there was an old enmity between the complainant's family and the accused party that a litigation had taken place about hand in which the complainant side had succeeded, that a theft had taken place at the house of his grand-father Ram Singh, the first information report about which was lodged against Gyani and Bhanwar Singh, Accused respondents, that a litigation had also taken place between the parties in consolidation courts, where also the complainant side had won that on 27.8.1972 at about 12.30 P.M. in broad-day light he (complainant Mahendra Singh) went to the well of the village for taking bath, that Bhanwar Singh, accused-respondent, also came to take bath at the well, that there was only one Ghiri (Pully) at the well, that on his drawing water from the well Bhanwar Singh, accused-respondent, started hurling abuses on him, that Bhawan Singh, accused respondent asserted that he would draw water from the well first, that he (Mahendra Singh complainant) stated that he (Bhanwar Singh, accused respondent) may draw water from the well subsequently, that thereupon Bhanwar Singh, accused respondent, started hurling abuses on him (Mahendra Singh complainant), that he (complainant Mahendra Singh) drew water from the well and went to his own house, that at that time Bhanwar Singh, accused respondent, went away saying MAIN APNE AADMI LAKER TUJHE ABHI THEEK KARA DOONGA", that after some time Narain, Betal, Gyani, Adal, Soran, Bhanwar Singh, Sujan, Gyasi, Nathi and Ishwari, accused-respondents, came at his (complainant's) door and started burling abuses on him (Mahendra Singh complainant), that at that time Ishwari, accused-respondent, was carrying a gun, while the other accused-respondents were carrying Lathis, that when he (Mahendra Singh complainant) called upon Gyani, accused-respondent, not to do so, Gyani, accused-respondent said "IS SAALE KO AAJ THEEK KAR DO", that the accused persons started beating him (complainant) with lathis, due to which he received injuries, that on an alram raised by him, his brother Devendra Singh (injured), his father Bahadur Singh (injured) and his grand-father Dharm Singh (deceased) came there, that thereupon they also were beaten by the accused-respondents; that near his house there was the house of Nathi, that Ishwari, accused-respondent, climbed over the roof of the house of Nathi with Sidhi and from that roof Ishwari, accused-respondent, fired with his gun, which struck on the head of his (complainant) grand-father Dharm Singh (deceased) and a pellet also struck the complainant's father Bahadur Singh (injured) who was standing at a distance of about 7-8 feet from Dharm Singh (deceased), that on the fire having been made the persons of the complainant side shifted here and there, that Dharm Singh (deceased) fell down on the spot, that Bhanu Pratap Singh, Chhote Lal Tyagi, Balbir and Ram Sewak witnesses came to the spot and saw the occurrence. The first information report was scribed by Bhanu Pratap Singh (PW8) at the dictation of Mahendra Singh complainant (PW3), which is Ex. K-10. Mehendra Singh complainant went to police Station Shamshabad taking the written first information report and Dharm Singh deceased in his injured condition, accompanied by Bhanu Pratap Singh (PW 8), Balbir Singh (P.W.7) and Devendra Singh injured with him and lodged the first information report at the police station Shamshabad at 17.30 hrs. on the basis of the said first information report a chik report (Ex. Ka-2) was prepared by Head Mohirrir Radhey Lal Gautam (P.W.2) and an entry was also made by him in the G.D. at serial no. 12 at 5.30 P.M. (whose copy was Ext. Ka-3) after the case was registered under Sections 148, 149, 307, 323 Indian Penal Code against the accused respondents. From the police station Dharam Singh (deceased) in his injured condition, complainant Mahendra Singh (injured P.W.3) and Devendra Singh (injured) were sent to Emergency Department of the District Hospital, Agra. Dharam Singh (deceased), in his injured condition, was medically examined by the Medical Officer, S.N. Hospital, Agra on 27.8.72 at 6.30 p.m. His general condition was very poor. He was unconscious pupils-right eye perforated, left eye perforated, left eye dilated and fixed. He was bleeding from ears, nose and mouth. The Doctor found the following injuries on the body of injured Dharam Singh: