LAWS(ALL)-2017-12-274

DIPTY & ANOTHER Vs. STATE OF U P

Decided On December 14, 2017
Dipty And Another Appellant
V/S
STATE OF U P Respondents

JUDGEMENT

(1.) Instant appeal is directed against the judgment of conviction and order of sentence dated 11.08.1984 passed by learned the IV Additional Sessions Judge, Sitapur, in Session Trial No.224 of 1982, corresponding to Case Crime No.3 dated 04.01.1982, of Police Station Hargaon, District Sitapur, whereby and whereunder learned trial court had convicted the appellants namely Dipty and Naresh under Sections 302/34 and 457 of the Indian Penal Code and sentenced them to undergo imprisonment for life for committing an offence under Section 302/34 of the I.P.C. Both the appellants were further sentenced to undergo rigorous imprisonment for five years for committing an offence under Section 457 of the Indian Penal Code.

(2.) The case of the prosecution as per the written report dated 04.01.1982 of Hasan Ali (deceased) is that the appellant no.1 Dipty had stolen the crop of black gram (urd) from the field of Bandhoo Kalwar, which was witnessed by the servant of Bandhoo Kalwar namely Anis, who intimated this fact to Bandhoo Kalwar. It is further alleged that because of the aforesaid reason appellant Dipty was abusing Anis in presence of deceased. It is further stated that the deceased forbade the appellant (Dipty) from abusing Anis. It is stated that because of that Dipty had developed animus with the deceased and had threatened him for dire consequences. It is then alleged that on the preceding night at about 2:00 P.M. while the deceased and his family members were sleeping in the house, appellants namely Dipty and Naresh alongwith one unknown had entered into the house of deceased by scaling over the wall with the help of a bamboo. It is further stated that hearing the noise the deceased woke up and sat on the cot and then flashed the torch light. It is alleged that as soon as the deceased flashed torch light, the appellant no.1 (Dipty) fired on him, due to that the deceased received injuries on his abdomen. It is further stated that hearing the sound of fire and also the cry of deceased, his son namely Rafiq and villagers namely Balloo, Bandhoo arrived flashing their torches, then the appellants fled away after opening the door.

(3.) On the basis of the aforesaid written report Case Crime No.3 under Section 307 of the Indian Penal Code instituted in the Police Station Hargaon, District Sitapur and police took up investigation. During the investigation, the Investigating Officer (I.O) had recorded the statement of Hasan Ali (Exhibit Ka-8) under Section 161 of the Criminal Procedure Code. Thereafter, the deceased was sent to Primary Health Centre, Hargaon for examination of his injuries. It appears that PW-10 Dr. M. G. Deane had examined the injuries on the person of the deceased and had issued injury report (Exhibit Ka-6). It further appears that PW-10 had referred the deceased for better treatment to District Hospital, Sitapur. It further appears that the Investigating Officer during the investigation had recorded the statements of deceased's wife namely Smt. Anwari and other witnesses and thereafter inspected the place of occurrence and prepared its site plan (Exhibit Ka-10). Thereafter, he seized the blood stained earth as well as plain earth from the place of occurrence in presence of witnesses and prepared memo of recovery (Exhibit Ka-11). The Investigating Officer had also seized one Bamboo and one lamp in presence of witness from the place of occurrence and prepared its fard (Exhibit Ka-12). During the investigation, the Investigating Officer had examined the torch of witness Balloo and Bandhoo Shah and had given it in their custody by preparing a memo (Exhibit Ka-13). It then appears that after completing the investigation the Investigating Officer submitted charge-sheet against the appellants.