SANTOSH KUMAR Vs. STATE

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 15-5-1979 passed by Sri Raman Prakash, the then 5th Additional Sessions Judge, Bijnor in Sessions Trial No. 233 of 1977, State v. Santosh Kumar, convicting the present accused- appellants of the offences under Section 302/149 IPC, 307/149 IPC, 324/149 IPC and 148 IPC and sentencing each one of them to undergo Imprisonment for Life R.I.for 4 years, R.I.for 1 year and R.I.for 18 months respectively.

(2.) The prosecution story as disclosed by Hargu Lal informant, PW-1 in his testimony at the trial was that Nidhi Kaj, Rajendra Singh, Shoorvir Singh, Ashok Kumar S/o Ghanshyam Singh, Hem Raj, Mahipal Singh, Mahendra Singh alias Surendra Singh, Raj Pal Singh, Om Prakash and Santosh Kumar, accused were of the same community and were members of Congress Party, that he and his brother Lajpat Rai deceased and others were members of Janata Party, that in the election for Lok Sabha in June, 1977 he and the deceased were on the side of Wahid, candidate of Janata Party while all the accused persons were siding Shaunath Singh, candidate of Congress Party, that Santosh Kumar accused was Pradhan of village Gohavar Jait, that his (the informant's) village was adjoining the village Gohavar Jait, that in the election the accused persons had asked them to support Congress Party, whereupon, the deceased had told them that he would remain with Janata Party, that this reply annoyed the accused persons and they started feeling enmity, that in the election, the informant and the deceased supported Janata Party and the candidate of Janata Party was successful, that all these accused persons threatened that they would see them and started roaming around the village carrying lathies and Guns, that on 30-6-1977 at about 5.30 p.m. when he was working on his tailoring shop, he heard the noise and abuses of the accused persons coming from North, that on this, he came out and saw that the accused persons have arrived at the Ciraha situated at a distance of 10 paces towards North, that Nidhi Raj, Rajendra Singh, Shoorvir Singh and Ashok Kumar accused were carrying Double Barrel Guns, Mahipal Singh, Mahendra Singh alias Surendra Singh and Santosh accused were carrying Single Barrel Guns, that Rajpal accused was carrying a Tamancha and Om Prakash and Hem Raj accused were carrying Lathies, that Mahipal Singh, Ashok Kumar and Nidhi Raj accused advanced towards Tukman Singh (CW-1) and hurling abuses retorted, "Tu Bahut Leader Banta Hai Aaj Tera Kam Tamam Kar Dengey." and Ashok Kumar and Nidhi Raj accused fired at Tukman Singh (CW-1) with their guns that at that time, Tukman Singh (CW-1) was standing in front of his (informant's) shop, that Tukman Singh (CW-1) got injured and fell to the ground, that then Santosh Kumar, Rajendra Singh, Shoorvir Singh, Rajpal Singh and Hem Raj accused advanced towards Lajpat Rai deceased who was taking tea at the shop of Hari Om, that Raj Pal Singh, accused climbed on the Chabootra situated infront of the shop and catch (Sic)(caught) hold of the hairs of the deceased and pulled him down, that Hem Raj accused gave a Lathi blow on the deceased from the back side, that then Santosh Kumar accused retorted, "Bahut Leeder Banta Hai, Isko Bhi Goli Mar Do" and Rajendra Singh accused fired from his gun which struck the deceased who got injured and fell down at the spot, that after this Shoorvir Singh accused made a fire towards the deceased but the fire did not strike the deceased, that he (the informant) made entreaties with the accused persons but they did not listen, that consequently, he shifted to one side, that on that very time, Mahendra Singh, Mahipal Singh, accused fired with their guns in different directions which struck Nihal Singh, Prasadi Lal, Krishna Kumar, Vishesh Kumar, Ashok Kumar (to be distinguished from Ashok Kumar accused) Km. Vaido Devi and all of them received pallet injuries, that witnesses Om Prakash, Jaswant, Bal Charan Singh, Chiranji Singh, Triloki Singh, Baljeet Singh, Bhim Singh, Rajendra Singh, Bhim Singh Mukhiya, Gajraj Singh, Dharampal Singh, Jiteridra Singh and Hari Om Chaiwala and others had come there and seen the occurrence, that he and his son Vishesh PW-3, picked up the deceased and took him from there to their own house and laid him at a cot lying infront of his door where he died instantaneously. The written FIR of this case (Ext. Ka-1) was scribed by Vishesh Kumar PW-3 at his (informant's) dictation. He reached at police station Noorpur by tractor and lodged his report there. On its basis, chik report (Ext. Ka-24) was prepared by the clerk constable on 30-6-77 at 6.30 p.m. and the case was registered under Sections 147, 148, 149, 307 and 303 IPC against all the 10 accused persons and the entry was made in the G.D.(Ext. Ka-25). The investigation followed in which witnesses were interrogated and the inquest proceedings were taken. The dead body of the deceased was sealed and was sent for post mortem. Blood stains were found on the spot. 6 empty cartridges were also found at the spot. The injured persons were sent for medical examination. After committal, accused persons were committed to the Court of Sessions where all of them were charged with the offence under Section 147 IPC and 8 of them namely Santosh Kumar, Shoorvir, Mahipal Singh, Nidhi Raj, Rajendra Singh, Ashok Kumar, Mahendra Singh and Raj Pal. accused were charged for the offence under Section 148 IPC.All of them were charged under Sections 307/149 IPC in respect of the assaults at Nihal Singh, Parsadi, Ashok Kumar S/o Ram Lal, Krishna Dutta, Vishesh Kumar, Tukman Singh and Smt. Vedo Devi. Rajendra Singh accused was further charged for the offence under Section 302 IPC simplicitor and the rest of the accused were charged for the offence under Section 302/34 IPC for the murder of Lajpat Rai, deceased.

(3.) Post mortem was done on-the dead body of Laj Pat Rai on 1-7-1977 at 4 p.m. by Dr. K.R.Sharma PW-4. The age of the deceased was about 32 years and the duration of death was one day i.e. 24 hours. The observations of the Dr. R.R.Sharma were that Rigor Morties was present on the entire body but there was no sign of decomposition. Following ante-mortem injuries were found on his person :-