MAHAK CHAND Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal assails the judgment and order dated 29.06.1993 passed by Additional Sessions Judge/ Special Judge, Meerut in S. T. No.294 of 1989 by which the appellants, namely, Mahak Chand and Mahkar both sons of Jai Lal; and Nand Kishore son of Phool Singh have been convicted under Sections 302 / 34, 307 / 34 and 449 I.P.C and punished as follows: life imprisonment for offence punishable under section 302/ 34 I.P.C.; three years R.I. each for offences punishable under Sections 307 / 34 and 449 I.P.C. All the sentences to run concurrently.

(2.) The prosecution case as narrated in the first information report (for short FIR), which has been lodged by Charat Singh (P.W.1) at P.S. Kithore, District Meerut as Case Crime No. 227 of 1987 on 25.09.1987, at 3:30 AM, is that Mahak Chand (appellant no.1) is a dacoit. He threatens villagers therefore nobody complains against him. The informant's family however had been opposing him. As a result, Mahak Chand had been inimical towards the informant. In the night of 30/31.07.1987 an attempt on the life of informant's brother Bharat Singh was made by Mahak Chand in association with Nand Kishore (appellant no.3) and Ashok of which information was given at the police station. Ashok and Nand Kishore had obtained bail but Mahak Chand was absconding. On 15.09.1987, Mahak Chand and his brother Kallia (who expired before the trial) threatened the informant that if he does not enter into a compromise in that case his entire family would be eliminated. Thus, pressure was being continuously exerted on informant's family to file affidavit in their favour. After narrating the above background, it was alleged that in the night of 24.09.1987, while the informant (P.W.1) and Mathura (P.W.2) along with others were present at the house of Ram Chandra (cousin of the informant), to look after Ram Chandra, who was seriously ill, at about 11 pm, they heard cries of ladies coming from informant's house. Upon hearing those cries, informant and P.W.2 rushed towards the house. As they reached the gate of the house, in the light of a torch, they saw accused Mahak Chand (appellant no.1); Kallia; Mahkar (appellant no.2); and Nand Kishore (appellant no.3) coming out from the gate. Mahak Chand and Kallia had Bhala and Mahkar and Nand Kishore had Ballam in their hand. They all ran away towards the west in the Gali. When PW1 and PW2 went upstairs on to the second floor, they found Kailaso (informant's wife) lying dead on one cot and Sarmoz (Kailaso's sister's daughter - niece) lying injured and unconscious on another cot laid just next to the cot of the deceased. Harpati (wife of Bharat Singh - Bhabhi of P.W.1) and P.W.1's niece (Km. Babita - P.W.3) came and told P.W.1 and P.W.2 that Kallia; Mahak Chand; Mahkar; and Nand Kishore have killed informant's wife (Kailaso - the deceased) and caused injury to Sarmoz (deceased's niece) with Ballam and Bhala.

(3.) After the FIR was lodged, the Investigation Officer (for short I.O.), namely, Satyabir Singh Chauhan -P.W.8, proceeded to the spot, recovered bloodstained and plain scrapes of the floor beneath the two cots as well as the bloodstained covers etc., and prepared a fard (Ex Ka-9). Inquest report (Ex Ka 8) was also prepared, which revealed that inquest proceedings started at about 7 am and concluded by 9 am on 25.09.1987. In the column relating to clothes found on the body of the deceased, it was recorded that the body was having just a lower undergarment on it. A Chithi Majrubi (letter for medical examination/ treatment of the injured) addressed to the In-charge Primary Health Centre, Machare, Meerut was prepared for Sarmoz. She was however referred to P.L. Sharma Hospital, Meerut. At P.L. Sharma Hospital, Meerut, at about 7.15 AM, on 25.09.1989, she was examined by Dr. S.C. Nigam (P.W.6), who prepared her injury report (Ex. Ka-5). A punctured wound 2.8 cm x 0.8 cm x depth not probed on right side abdomen, 8 cm above the umbilicus, at about 11 o'clock position, margin clean cut and everted, with Omentum protruding out from the wound, was found. Injury was kept under observation and X-ray was advised. The injury report observes that detailed examination could not be done due to serious condition of the patient. Duration of the injury was found fresh, caused by sharp, hard and pointed object.