BUDHA Vs. STATE

JUDGEMENT

(1.) BUDHA, Zarnir,, Chhotey, sons of Qaiyam Uddin, Wali Uddin, Shakeel and Ibrahim have filed Criminal Appeal No. 387 of 1979 while Mukhtar and Shahzadey have filed appeal no. 407 of 1979 against their conviction and sentence recorded by Sri G. S. Sharma, 11 Additional District and Sessions Judge, Budaun by his judgment and order dated 25th January 1979. All the appellants were convicted under sections 333/149, 225, 147 and 148 IPC and they were sentenced to undergo 5 years' R. I. one year's R. I. one year's R. I. and 2 year's R. I., respectively. Zamir and BUDHA were further convicted under section 27 of arms Act and were sentenced to undergo R. I. for two year's each. Both the aforementioned appeals were connected by this Court as they arose out of the same judgment.

(2.) THE case of the prosecution is that Udaivir Singh Tomar PW 1, the Station Officer of Police Station Allahpur, District Budaun, received information at 9.50 A. M. on 24-10-73 that one Phulu wanted in a case under section 396 IPC by the Kotwali Police. Badaun, was present along with his associates in the house of Budha Zamir and Chhotey appellants in the town of Allahpur. On getting the information, Udaivir Singh Tomar left the Police Station along with Sub-Inspector Satendra Pal Tyagi four constables, including Sardar Singh PW 2 and after making necessary entry Ex Ka-1 in the General Diary of the Police Station regarding his departure for the arrest of Phulu and other miscreants. On the way he collected public witnesses Dwarika PW 3, Lalman PW 4 and others and reached the house of Budha appellant at about 10.30 P. M. and found the door of the aforesaid house closed. He noticed a lantern burniug inside the house and he also heard some whispering inside the house. On the direction of Udaivir Singh Tomar, one constable called out the name of Budha and Zamir appellants but no am responded horn inside the house. THEreafter two constables had scaled the wall of the house of Budha appellant on the direction of Udaivir Singh Tomar and they succeeded in opening the door from inside. THE police party entered the house and they had seen in the light of the lantern burning inside the house and by flashing their torches that accused Phulu and his two companions, were scaling the eastern wall in order to make good their escape. THE Station Officer Udaivir Singh Tomar alongwith his party tried to arrest them but he was challenged by all the appellants who struck lathis on the police party and had caused injuries to constable Sardar Singh, PW 2 and the public witness Dwarika PW 3. THE Station Officer had plied his cane in his defence at that time. Sardar Singh PW 2 on receiving the injuries fell down inside the house and his private gun Ex. 2 also fell on the ground from his hand which was picked up by Budha appellant, Zamir appellant had tried to load his own gun Ex. 1 which was snatched by the Station Officer Udaivir Singh Tomar and Dwarika Chaukidar, PW 3 but in the meantime accused Phulu and his companion made good their escape by scaling the wall. When Budha had tried to run away with the gun of constable Sardar Singh, his companions also started running who were chased by the police party and Budha fired a shot from the gun but it did not hit the police party. However, Budha could not re-load the gun and considering the critical situation he managed to run away from his house throwing the gun of Sardar Singh PW 2 on the ground. However, Mukhtar and Ibrahim appellants were arrested on the spot by the police but other accused had made their good escape from the place of occurrence.

(3.) DR. R. S. Tyagi also examined the injuries of Sardar Singh at 7.10 A. M. on 25-10-73 and he found the following injuries on his person :- 1. Lacerated wound 2.5 cm x .50 cm x scalp on the front of forehead 6.5 cm above the bridge of nose. 2. Lacerated wound 6 cm x .50 cm x scalp on the top of left side of hand. 3. Lacerated wound 2 cm x .50 cm x scalp on the left side of head just below injury no. 2. 4. Contusion 1.5 cm x 1 cm on the outer aspect of left arm above the elbow. 5. Abrasion 3 in number 0.75 cm x.50 cm each on the back of left hand. 6. Contusion 8 cm x 2 cm on the left side of back at shoulder blade. 7. Lacerated wound 1.7 cm x 2 cm on the left side of back below the shoulder blade. 8. Lacerated wound 1.5 cm x 0.75) cm x skin on the back of right index finger. 9. Abrasion 2 cm x.50 cm on the back of right hand,