TMI Blog2012 (1) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal are as under: A. An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about 12 O'clock, Jalsur (PW.2) - complainant and his Uncle Onkar Singh (deceased) were sleeping on the roof of their house in their village Kidhara. The Appellants came to the house of complainant along with other accused persons. One Jagdish who was having a shop in the outer room of the complainant's house, woke up after hearing the sound of the movement of Appellants and accused persons and raised alarm and took to his heels. Jalsur (PW.2) and his uncle Onkar Singh (deceased) also woke up. Onkar Singh (deceased) climbed down from the roof towards Chabutara while Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a chappar in front of his own house. It was in the light of the fire made on account of burning of Chappar , that Jalsur (PW.2) saw the accused Bira, Tara, Onkar, Rati Ram and some 7-8 unknown persons. The Appellants were armed with country made pistols and other assailants were armed with lathi, bhala and other lethal weapons. A scuffle took place between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jalsur (PW.2) and in that case accused Tara, his brother Mahabir and father Munshi faced trial and stood convicted under Section 307 Indian Penal Code and they served the sentence. It was further submitted that Tara, Bira and Onkar were closely related to each other. In respect of another incident, Jalsur (PW.2) had filed a complaint against Tara and Mahabir under Section 395 Indian Penal Code but the said case ended in acquittal. The other accused persons took the defense that they had enmity with the police and had falsely been implicated in the case. E. After appreciating the evidence on record and considering all other facts and circumstances of the case, the Trial Court vide judgment and order dated 16.4.1982 convicted all the 7 accused persons and awarded the sentence as mentioned hereinabove in S.T. Case No. 277 of 1980. Aggrieved, all the 7 convicts preferred Criminal Appeal No. 1096 of 1982 before the High Court of Allahabad. F. During the pendency of the said appeal, Omveer, Ahmad Sayeed and Suresh died and thus, their appeal stood abated. At the time of hearing the appeal, it stood established that Bira was a child on the date of occurrence and therefore, his convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the witness has been closely related to the victim. The injuries found on the person of the deceased as well as on Tarawati, Chandra Bose and Mohd. Shafi corroborate the case of the prosecution and in such a fact-situation, the provisions of Section 149 Indian Penal Code have rightly been applied. The issue of non-examination of the injured witnesses, namely, Tarawati and Chandra Bose and of eye-witnesses, namely, Roshan Singh, Hukum Singh and Jagdish has not been put to the Investigating Officer in cross-examination who could have furnished the explanation for their non-examination. Thus, the issue cannot be raised first time in appeal before this Court. The appeal lacks merit and is liable to be dismissed. 5. We have considered the rival submissions made by Learned Counsel for the parties and perused the record. 6. Before we enter into the merits of the case, it may be relevant to refer to the injuries caused to the victims. (a) The post mortem examination of the dead body of Onkar Singh, son of Sher Singh, was conducted by Dr. Pradeep Kumar (P.W.7) on 23.3.1980 at about 5.15 a.m. and he found following ante mortem injuries on his person: 1. Gun shot wound of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njuries were simple in nature and were caused by fire arm and their duration was about half a day old. (d) Dr. D.P. Singh (PW.1) examined the injuries of Mohd. Shafi on 26.3.1980 at 11.15 a.m. and the following injuries were found on his person: 1. Circular wound 1/8 x 1/8 x muscle deep on the front aspect of right forearm 4 below the level of right elbow joint. 2. Multiple circular wound 1/8 x 1/8 x muscle deep on the front and lateral aspect of right upper arm 12 in numbers in an area 8 x 5 between the shoulder and elbow joint. 3. Three circular wounds 1/8 x 1/8 x muscle deep each in an area of 3 1/2 x 2 on the right shoulder joint. 4. Multiple circular wounds 1 /8 x 1/8 x muscle deep, 5 in numbers, extending in a linear fashion starting from 3 1/2 above the right nipple to the lower part of 9th rib at a place 6 1/2 away from mid line of back. In the opinion of the doctor, all the injuries were simple and were caused by fire arm. Duration of these injures was found to be 3 1/2 days which is corresponding to the date of incident. 7. The prosecution has examined 3 eye-witnesses. According to Jalsur (PW.2), the victims' side had earlier filed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e witnesses would screen and spare the real assailants and falsely enrobed the Appellants and Ors. only because of old enmity. Had it been so, there could have been no reason to involve at least four other accused persons in the crime, particularly, Mohd. Shafi, Suresh, Ahmad Sayeed and Omveer. Admittedly, he lodged the FIR most promptly within a period of 3 hours of the incident at 2.50 A.M. though the police station was at a distance of 3 miles from the place of occurrence. So far as the present Appellants are concerned, they have specifically been named. The other co-accused who were not the residents of the village where the offence has been committed, had been duly identified in Test Identification Parade as well as in court by all the three eye-witnesses. 10. We do not find any force in the submission made by Shri Upadhyay, learned Senior counsel that in the facts and circumstances of the case provisions of Section 149 Indian Penal Code were not attracted, for the reason, that this Court has been very cautious in the catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinize the evidence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily members and in prosecution of the said common object six persons were killed. The Appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant. (See also: Ramesh v. State of Haryana AIR 2011 SC 169) 12. The witnesses have deposed that not a single article was looted nor any attempt had been made to commit dacoity, rather it has been specifically stated that all the assailants/miscreants declared that no one would be left alive and had been exhorting one another to eliminate all. All the assailants came together and participated in the crime in which Onkar Singh was killed, Tarawati and Chandra Bose were injured. The assailants tried to break open the door of the house but could not succeed, thus they fired from the ventilator and that is why Tarawati and Chandra Bose got injured. After commission of the offence a large number of persons gathered at the place of occurrence. The assailants ran away. The offence was committed at mid-night. Therefore, after reading the entire evidence collectively inference can safely be drawn that the assailants had an object to commit murder of persons on the victim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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