DALVEER Vs. STATE

JUDGEMENT

(1.) This appeal assails the judgment and order dated 28.08.1992 passed by the IVth Additional Sessions Judge, Moradabad in Sessions Trial No. 587 of 1986 by which the appellants, namely, Dalveer, Ramesh and Naresh were convicted under sections 148 and 302/149 IPC and punished as follows: one year of rigorous imprisonment under section 148 I.P.C.; and imprisonment for life under section 302 read with section 149 I.P.C. Both sentences to run concurrently.

(2.) The aforesaid appellants were sent for trial along with co-accused Man Singh. Man Singh however died during the course of the trial. Hence, the case against him was abated. Amongst the appellants, Dalveer and Ramesh died during the pendency of the appeal hence their appeal was abated vide order dated 31.01.2019. Thus this appeal has been pressed only on behalf of surviving appellant no.3, namely, Naresh.

(3.) In brief the facts of the case are that on 14.06.1986, at 04:15 hours, a first information report (for short FIR) (Exhibit Ka-1) was lodged by Jagdish Prasad (not examined) at police station Kund Fatehgarh, District Moradabad, which was at a distance of about 10 km from the place of occurrence. In the FIR it was alleged that the informant along with his sister's husband (the deceased - Kishan Lal), nephew (another deceased, namely, Mahender son of Kishan Lal) and another nephew (P.W.3), namely, Surender son of Kishan Lal, had gone to the house of Nathu Lal (not examined), at about 7 pm, on 13.06.1986, to attend a feast. On their way back home, near the house of Roshan (not examined), at about 8:30 p.m., they were surrounded by five persons, namely, Dalveer (appellant no.1), Ramesh (appellant no.2); Naresh (appellant no.3); Man Singh Jatav (who died during trial); and one unknown person. All of them had emerged from the Gher of Naresh. Naresh had a gun whereas the rest had Tabal (sharp-edged weapon). Ramesh challenged the deceased - Kishan Lal by saying that today he shall be taught a lesson for lodging a case against him and for implicating Dalveer's father in a dacoity case. On his saying so, Naresh opened fire from his gun at the deceased - Kishan Lal, as soon as he fell down, Dalveer attacked him with his Tabal. In the meantime, informant's nephew, namely, Mahender, was surrounded by accused Ramesh, Man Singh, Dalveer and the unknown person, who all attacked him with Tabal and killed him too. Seeing all that, the informant raised an alarm. Upon which, Ramesh fired two shots in the air, as a result, due to fear, no villager came forward. Thereafter, Dalveer, Ramesh and Naresh effected their escape by running away towards the west and while they were running informant's sister- Ramwati (PW2) and informant's niece Ramshree (not examined) spotted them from the roof of their house. The remaining accused, namely, Man Singh and the unknown person escaped by using a Gali (lane) towards the east. In the FIR it was alleged that bodies of the two deceased were lying on the spot. The FIR sought to explain the delay by stating that in the night, due to fear, it could not be lodged.