Sripal And Others vs State on 14 August, 2024

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Allahabad High Court

Sripal And Others vs State on 14 August, 2024

1. This criminal appeal has been filed against the judgment and order of conviction dated 12.11.1982, passed by learned II Additional District and Sessions Judge, Shahjahanpur, in Sessions Trial No.9 of 1982, whereby the appellants have been convicted and sentenced as under:-

(1) Accused Sripal was sentenced to rigorous imprisonment for life under Section 302 IPC for committing the murder of Chhatter; 4 years rigorous imprisonment under Section 307/34 IPC (four counts) under each count, for co-accused Chhotey having caused hurt to Chhotey Lal and Ram Swaroop in an attempt to murder them and co-accused Satyapal having caused hurt to Chhotey Lal and Anant Ram in an attempt to murder them; 3 years rigorous imprisonment under Section 366/511 IPC; 4 years rigorous imprisonment under Section 364 IPC and 5 years rigorous imprisonment under Section 458 IPC.

(2) Accused Satya Pal was sentenced to rigorous imprisonment for life under Section 302/34 IPC for co-accused Sripal having committed murder of Chhatter; 4 years rigorous imprisonment under Section 307 IPC (double counts) for causing hurt to Chhotey Lal and Anant Ram in an attempt to murder them; 4 years rigorous imprisonment under Section 307/34 IPC (double counts) for co-accused Chhotey having caused hurt to Chhotey Lal and Ram Swaroop; 3 years rigorous imprisonment under Section 366/511 IPC; 4 years rigorous imprisonment under Section 364 IPC and 5 years rigorous imprisonment under Section 458 IPC.

(3) Accused Chhotey was sentenced to rigorous imprisonment for life under Section 302/34 IPC for co-accused Sripal having committed murder of Chhatter; 4 years rigorous imprisonment under Section 307 IPC (double counts) for causing hurt to Chhotey Lal and Ram Swaroop in an attempt to murder them; 4 years rigorous imprisonment under Section 307/34 IPC (double counts) for co-accused Satyapal having caused hurt to Chhotey Lal and Anant Ram; 3 years rigorous imprisonment under Section 366/511 IPC; 4 years rigorous imprisonment under Section 364 IPC and 5 years rigorous imprisonment under Section 458 IPC.

(4) Accused Ravindra Singh was sentenced to rigorous imprisonment for life under Section 302/34 IPC for co-accused Sripal having committed murder of Chhatter; 4 years rigorous imprisonment under Section 307/34 IPC (four counts) for co-accused Satya Pal having caused hurt to Chhotey Lal and Anant Ram in an attempt to murder them; 4 years rigorous imprisonment under Section 307/34 IPC for co-accused Chhotey having caused hurt to Chhotey Lal and Ram Swaroop in an attempt to murder them; 3 years rigorous imprisonment under Section 366/511 IPC; 4 years rigorous imprisonment under Section 364 IPC and 5 years rigorous imprisonment under Section 458 IPC.

All the sentences were directed to run concurrently.

2. The factual matrix of the case as unfolded from the first information report and investigation of the case are that the informant filed a written report with police station Tilhar, District Shahjahanpur (Ext.Ka-1) on 16.8.1981, wherein it is stated that he is resident of Village Khanpur, Police Station Tilhar, District Shahjahanpur. In the night of 15.8.1981, at about 24:00 hours, the informant Bhudhar Lal was at his house in the village Khanpur whereas his brother Chhattar, his son Chhotey Lal and Anant Ram, his son-in-law Jai Chand, his wife and daughter (Maina Devi) were in the house of Chhattar, Ram Swaroop, the son of the informant was also present there. Chhattar's married daughter Maina Devi had visited her parental place together with her husband and both were in the house of Chhattar. His co-villager Sripal was having evil eye upon said Maina Devi. On 15.8.1981, at around 24:00 hours, four accused namely, Sripal, Satyapal, Chhotey (all the three being resident of same village) and Ravindra Singh (resident of village Hakimpur) came and mounted on the roof of the house. Sripal was armed with a double barrel countrymade gun, Satyapal was armed with a countrymade pistol and battery torch, Chhotey was armed with countrymade single barrel gun and Ravindra was armed with a lathi. Ravindra stood at the door of Chhattar's house, while remaining three accused entered the house. Accused Sripal aimed his gun at Chhattar while accused Satyapal and Chhotey caught hold of Smt. Maina, daughter of Chhattar and dragged her. Chhattar's wife raised an alarm whereupon complainant and Balak Ram came running to the spot and challenged the accused. Chhattar also challenged them and tried to catch hold of the barrel of the gun of Sripal whereupon Sripal opened fire on Chhattar due to which he suffered firearm injuries. On this, the witnesses Chhotey son of Chhattar and Ram Swaroop, son of Bhoodhar Lal caught hold of accused Sripal. Thereupon, accused Chhotey fired shots at witness Ram Swaroop and witness Chhotey by his gun, which resulted loss of grip of the witnesses on Sripal. Satyapal also fired a shot which hit witnesses Anant Ram and Chhotey. Thereafter, the accused persons caught hold of the witness Chhotey and Jai Chand, son-in-law of Chhattar and took them away by dragging them with a view to kill them and Chhotey Lal returned back after some time having been released but Jai Chand did not come back. The incident was seen by a number of villagers. The FIR was lodged on the next day i.e. 16.8.1981 at 7:20 AM at police station concerned which is Ext.Ka-16 on record. The FIR was lodged vide Crime No.341 if 1981, under Sections 452, 307, 364 IPC. The written report Ext.Ka-1 dated 16.8.1981 was scribed by Surajpal, son of complainant Bhoodhar Lal and bore his thumb impression. A case was registered vide GD report No.12, time 7:20 hours, on 16.8.1981, copy thereof is marked as Ext.Ka-17. The four injured namely, Chhattar Lal, Chhotey Lal, Ram Swaroop and Anant Ram were carried from place of incident to police station and after lodging of FIR under Sections 452/307/364/341 IPC, medico legal examination of Chhotey Lal, Ram Swaroop and Anant Ram was conducted at male medical hospital, Tilhar at the instance of police, between 9:10 to 10:30 hours. Their injury reports are marked as Ext.Ka-2 and Ka-3. Injured Chhattar Lal was also taken to hospital for medical examination but Dr. R.P. Gulati (PW-5) had found him dead and he prepared a death report (Ext.Ka-5). These three injured were also subjected to X-ray examination and their X-ray plates are marked as Ext.Ka-9 to Ka-13 and their X-ray reports are marked as Ext.Ka-6 to Ka-8, respectively by radiological Dr. P.S. Verma on 17.8.1981. Injured Chhatter Lal was examined at the hospital on the same day and was found dead on account of death of Chhatter Lal, Section 302 IPC was added in penal sections vide G.D. Report No.24, Time 10:45 AM dated 16.8.1981 (Ext.Ka-18).

3. The inquest on the body of deceased Chhattar was conducted by PW-9, S.I. S.S. Saxena, who prepared Panchayatnama, photo lash, challan lash and other police papers for postmortem examination of the dead body, on which Ext.Ka-19 to Ext.Ka-22 are marked. The postmortem examination on the dead body of Chhattar Lal was performed by PW-7, Dr. M.L. Tandon on 17.8.1981, at 3:15 PM as is revealed from postmortem report (Ext.Ka-14).

4. The initial investigation of his case was conducted by S.I. S.Saxena PW-9. He inspected the place of occurrence on the identification of Brij Ram S/o deceased Chhatter Lal and prepared the site plan (Ext.Ka-23) on 16.8.1981. He found blood lying at the spot and took sample of blood stained and plain earth, prepared a memo Ex. Ka- 24 and placed them in separate closed and sealed cartons. Before starting for the place of occurrence, he had recorded the statements of the complainant Bhudhar Lal and the witnesses Chhotey Lal Anant Ram and Ram Swaroop at P.S. Tilhar. He searched for the accused after inspecting the spot and took their house-search but neither accused, nor any incriminating material was found. He arrested the accused Satyapal in the "BAGIYA" of Nathu Singh Pradhan to the south of the village and placed him in the lock up of Police Station Tilhar. On 18.8.81, he recorded the statement of Smt. Maina and her husband Jai Chand and Smt. Ram Dai on 21.8.81. He again searched for the accused but they could not be found on that day, He also recorded the statement of witness Balak Ram on 27.8.81 He submitted report under sections 82 and 83 Cr.P.C. against the accused, but he learnt that the three accused have already surrendered themselves before the court and hence the processes were not taken out u/s 82 and 83 Cr.P.C. On 1.9.81 he recorded the statement of accused Ravinder and Shripal in the District Jail and thereafter he proceeded for his training in Civil Emergency at Shahjahanpur and left the investigation incomplete. The latter part of the investigation was carried out by S.I. R.L. Dwivedi (PW-8). He searched for the accused Chhotey Lal at his house on 10.9.1981 but could not find him. On coming to know that he is lodged in Bareilly Jail, he got a warrant "B" sent on 8.10.1981 to District Jail, Bareilly. He recorded the statement of accused Chhotey Lal in District Jail Bareilly on 24.10.1981 and on the same day, he submitted a chargesheet Ext.Ka-15 against all the accused.

5. This case was committed to the Court of Session by C.J.M., Shahjahanpur by his committal order dated 5.1.1982. In the Court of Sessions, charges under Sections 366/511, 458, 302, 302/34 IPC 307 (double counts) 307/34 IPC (double count) were framed against the accused persons. The accused pleaded not guilty and claimed to be tried.

6. In the Court of Session, the prosecution proved papers Exts.Ka-1 to Ka-18 and examined as many as 9 witnesses. Bhudhar Lal PW-1, is the victim, informant, complainant, elder brother of the deceased Chhatter Lal and and eye-witness; Chhotey Lal PW-2 is the victim, son of deceased Chhattar Lal and an eye-witness; Ram Swaroop PW-3, son of Bhudhar Lal and nephew of the deceased Chhattar and an eye-witness of the occurrence, PW-4 Sri Prakash- Constable, who carried dead body to mortuary after inquest; Dr. R.P. Gulati PW-5 M.O. Male Hospital Tilhar; Dr. P.S. Verma PW-6 is Radiologist; Dr. M.L. Tandon, PW-7 is M.O. District Hospital; S.I. S.S. Saxena PW-9 and S.I. R.L. Dwivedi, PW-8 are the Investigating Officers. Constable Shree Prakash, who has filed an affidavit is PW-4. The prosecution did not prove any case property.

7. The accused in their statements, admitted that Shri Pal and Satya pal are real brothers but denied that the accused Chhotey and Ravindra Singh are their companions or co-workers. They denied their presence, participation or involvement in this crime and pleaded that they have been falsely implicated on account of enmity. They also pleaded that there were clouds in the sky at the time of occurrence. Accused Shripal pleaded that the marriage of his younger brother Satya Pal was settled with Dhan Devi- daughter of Prempal but it was broken due to dispute about the presentations and dowry and hence the complainant side bore enmity against them. The statement of Satya Pal accused is also to the same effect. The accused Chhotey Lal pleaded that he is Dhanuk by caste and rears pigs. About three and half years ago, his pigs had entered the agricultural field of Bhudhar Lal and he gave a beating to the accused. On this, the mother of Chhotey Lal, who is working as mid-wife, refused to work in the houses of the complainant's side and hence Chhotey Lal has been falsely implicated due to enmity. The accused Ravindra Singh pleaded that Raghubir Singh and Drig Pal Singh are his "Mamas", that there was a quarrel between his "Mamas" on one side and Chhatter Singh on the other, which led to litigation between then, and hence he has been falsely implicated. The accused had not produced any documentary or oral evidence in defence in support of their statements under Section 313 Cr.P.C. except certified copy, Ext.Kha-1 as appears from order-sheet dated 23.10.1982.

8. PW-1 Bhudhar Lal, the informant, is real brother of the deceased and father of injured witness Ram Swaroop. He fully supported the FIR version in his sworn testimony before the Court. He stated that the occurrence took place in the night of 6.8.1981, at 24:00 hours. The police station situates at the distance of nine miles from village Khanpur where the incident occurred. His brother Chhatter Lal had been seriously injured by the gunshot fired at him by accused Shripal. Witnesses Ram Swaroop (PW-3), Chhotey (PW-2) and Anant Ram had also been injured by the gunshot fired at them by other accused Chhotey and Satyapal. Injured witnesses namely Chhotey Lal and Anant Ram are sons of deceased Chhatter and witness Ram Swaroop is son of the witness. He stated that house of Chhatter situates in the east of the village. His house consists of two exits one eastwards and other southwards. These exits were devoid of any door or chaukhat. When one enters in the house of Chhatter from east opening, a courtyard lies there. A room is made in the west of the courtyard, which was having a thatched shed. This room was also without any door or door-coast (chaukhat). His house is adjacent to the hosue of his brother Chhattar and lies westward to his house. A muddy pathway intervenes between the house of the witness and his brother. Sripal, is real brother Satyapal and Chhotey Lal working with them. Accused Ravindra Singh was resident of village Hakimpur, who started living in his village 4-5 months prior to the incident and had constructed a thatched house there. He also worked with Sripal and Satyapal. The witness was sitting on a cot inside his house in the fateful night, which was lightened by light of full moon. It was moon night. He heard noise emerging from eastwards and he rushed towards east door of house of Chhater wielding a lathi. He saw accused Sripal armed with a DBBL Gun, who stood near the cot of Chhattar and had pointed out his gun towards him. Accused Sripal was armed with a countrymade pistol and was also having a battery torch. Accused Chhotey was armed with a SBBL Gun, who stood in front of the door of the room (kothari) of Chhatter inside his house. Accused Ravindra Singh stood on south door of the house of Chhatter. Smt. Maina Devi, the daughter of the Chhatter, wife and sons of Chhatter were also present there. His son Ram Swaroop and Jai Chand, son-in-law of Chhatter were also present there. Accused Sripal asked Satyapal and Chhottey to drag and produce Smt. Maina whereupon Satyapal and Chhotey dragged her up to 2-4 paces. Wife of Chhatter raised an alarm. Chhatter tried to catch hold of the gun of Sripal whereupon Sripal opened a fire by his gun at him and he got injured. Ram Swaroop, the son of witness was lying on other cot together with Chhotey Lal. Chhotey Lal and Ram Swaroop caught hold of Sripal but Sripal exhorted accused Chhotey to open fire whereupon accused Chhotey opened fire by his gun, which hit Ram Swaroop and Chhotey Lal. Thereafter, accused Sripal also opened fire by his tamancha (countrymade pistol), which hit Anant Ram and Chhotey. Satyapal and Chhotey dragged Smt. Maina up to 2-4 paces but due to hue and cry they left her and took away Jai Chand and Chhotey Lal while speaking that take them to the sugar cane field and kill them. They took the abductees namely Jai Chand and Chhotey Lal towards sugar cane field. Chhotey Lal came back by getting him rescued but Jai Chand had not came. He got the written report scribed by his son Surajpal on the place of incident in the light of lantern and affixed his thumb impression thereon after being read over and explained its contents to him, on which Ext.Ka-1 has been marked. The witness further stated that when the accused caught hold of Smt. Maina, he got apprised of the fact that the accused were having evil eye on her. The informant and witnesses took the injured Chhatter, Ram Swaroop, Chhotey Lal and Anant Ram to police station by laying them on a bullock cart. They were crying at that time. He filed the written report at police station. The injured were sent for medico legal examination at Government Hospital by police but Chhatter expired as soon as he reached at hospital. The witness stated in cross-examination that on Ext.Ka-1, he affixed his thumb impression by ball point pain. The scribe Surajpal did not accompany him to police station. He visited the hospital from police station and went back to his home when dead body was moved from government hospital, Tilhar to District Headquarter, Shahjahanpur. He got a copy of FIR at 10:00 AM on same day. He came to Shahjahanpur in the evening and stayed there in the night. Jai Chand met him at Shahjahanpur at around 12:00 Noon at the place where the dead body of Chhater was brought. The witness denied the defence suggestion that on fateful night Jai Chand and Smt. Maina were not present in the house of Chhater Lal (deceased).

9. PW-2, Chhotey Lal is son of the deceased Chhatter Lal. He is an injured witness. He supported the prosecution version in his evidence and corroborated the testimony of PW-1. He stated in his sworn testimony before the Court that his father received gun shot in the incident which occurred in the mid night. He was lying on a cot in the courtyard by of his house in open. His father Chhatter was also lying on another cot in southwards of his cot. His cousin Ram Swaroop was also lying down on his cot. Towards west of his cot, his mother Ram Dei and sister Maina lied down on the floor. It was full moon night and sky was clear. His co-villager Sripal, Satyapal and Chhotey Dhanuk entered in his house from sought door. Sripal was armed with DBBL gun, Chhotey Dhanuk was wielding a SBBL gun, Satyapal was armed with tamancha and torch. Ravindra stood on south door of his house having a lathi in his hand. He identified all the four accused persons at the time of incident. Sripal stood by the side of foot of his father who was lying down on his cot and pointed his gun towards him. Satyapal and Chhotey tried to drag his sister Maina whereupon mother Ram Dei raised and alarm. Uncle Bhudhar Lal reached inside the courtyard of his house and challenged the accused persons to which his father Chhatter Lal opened his eyes and saw the accused Sripal having pointed his gun towards him. He tried to grab the gun of Sripal but Sripal opened a fire at him due to which he again fell down on the cot. The witness and his cousin Ram Swaroop caught hold of Sripal whereupon Chhotey Dhanuk opened fire on him and Ram Swaropp. Ram Swaroop fell down having received firearm injuries and the witness also received firearm injuries as another brother namely Anant Ram ran towards him after alienating from the cot Satyapal fired a shot at Anant Ram in the meantime which hit Anant Ram and the witness both. Four accused persons caught him and his brother-in-law Jai Chand and took away with them while stating that they will be killed. Sripal asked his companions to tie down Jai Chand and beat Chhotey Lal. However, when accused were tying Jai Chand, the witness Chhotey Lal taking the benefit of this escaped from sugar cane field and went back to home. In cross-examination the witness stated that Surajpal, the son of his uncle Bhudhar resides in village Nagaria and had come to his native place 2-3 days ago the incident and at the time of incident, he was sleeping in the house of his father Bhudhar Lal. When he reached at home after escaping from captivity of accused persons, his family members were all prepared to transport his injured father Chhatter in a bullock cart. He narrated the fact to his uncle Bhudhar Lal as to what happened with him and Jai Chand in the captivity of the accused persons. His mother Ram Dei and cousin Surajpal and Prem Lal also accompanied him to police station. The witness was frieghtened due to accused persons and for that reason, none dared to rescue Jai Chand in the night from the captivity of the accused persons. It is true that when accused Chhotey fired a shot the witness and Ram Swaroop slipped the hold of accused Sripal, whom they had caught hold. His sister Maina was dragged for two steps only. He had stated in his statement under Section 161 Cr.P.C. to Darogaji that accused Satyapal was frequently lighting his torch but this statement did not find place in his statement recorded by the Darogaji. The accused were identified the witness and his family members in the ligth of torch.

10. PW-3 Ram Swaroop, who is also an injured witness and witness of fact and son of the informant has supported the prosecution version. In his sworn testimony before the Court, he has stated that due to firing of accused persons, pellets hit the wall of the house of Chhatter. The witness denied the defence suggestion that in the night of incident, thieves committed trespass in the house of his uncle and but when people there got awake and raised alarm, the thieves fired at them which also hit the witness. The witness also denied the defence suggestion that they could not recognize the accused persons as it was cloudy night and darkness perveded all around the witness categorically stated that it was ful moon night.

11. PW-4 Sri Prakash testified that he carried the body of Chhatter from place of inquest to postmortem house together on 16.8.1981. He was posted as a constable of Police Station Tilhar and Darogaji entrusted the dead body of Chhatter in sealed cover and he produced the same on 17.8.1981 at 3:30 PM before Dr. Vimal Tandon at postmortem house and identified the dead body.

12. PW-5 Dr. R.P. Gulati is author of injury reports of injured Chhotey Lal, Anant Ram and Ram Swaroop. He stated in his evidence that on 16.8.1981, he was posted as Superintendent of Male Hospital, Tilhar and he conducted medico legal examination of injured Chhotey Lal, Ram Swaroop and Anant Ram and prepared their injury reports in his hand writing and signature on which Ext.Ka-3, Ka-2 and Ka-4 are marked.

13. According to the opinion of Dr. R.P. Gulati (PW-5), these injuries of the three injured could have been caused at about midnight during the night of 15/16.8.1981 and that they could have been caused by gun shots from firearm. It is true that he had not expressed any opinion about the weapon being a firearm in his injury report but it was only by way of abundant precaution , as he had not found any shot palpable and had advised X-ray. In para 11, he has clearly stated that these injuries could not be caused by a lathi, danda or rod. The defence counsel could not suggest any different time or weapon or manner in which these injuries had been caused. There is no allegations of these injuries being fictitious, concocted or manufactured. They are on the vital parts of the body and as such, it is evident that the assailants must have intended to kill the victims while causing these injuries.

14. The postmortem examination on the dead body of deceased Chhatter Lal was performed by Dr. M.L. Tandon and PW-7 on 17.8.1981, vide PM Examination Report Ext.Ka-14. The statement of Dr. M.L. Tandon goes to show that Chhatter Lal had received a gunshot injury of 12 cm X 9 cm X muscle deep on the front of left thigh, 10 cm above left knee extending to inner aspect. Blackening and tattooing around margin of wounds were present. Margins inverted and directions from front and left side to backward and right side and upwards. He had also received abrasion 4 cm X 2 cm on outer aspect of right upper arm 2 cm above the elbow and another abrasion 5 cm X 3 cm from right elbow outer aspect at left side. Heart was found empty. The stomach contained one and half gram of semi digested food matter and the large intestines contained faecal matter at places. The bladder was empty. According to the medical evidence the death had been caused due to shock and haemorrhage as a result of antemortem injuries received by the deceased. According to the Doctor M.L. Tandon, the deceased may have died at around 8:30 hours on 16.8.1981 and that it was possible for him to surviving 7 or 8 hours after receiving the said antemortem injuries. He has further opined that gunshot injury received by the deceased was sufficient in the ordinary course of nature to cause death. Learned counsel for the defence suggested to PW-7 and he admitted in paragraph No.8 of his statement that the deceased could have died at 4:00 hours, 5:00 hours in the morning of 16.8.1981. Injury Nos.2 and 3 could have been caused by friction from any substance. PW-7 has also stated in postmortem report (Ext.Ka-14) that rigor mortis was passing from upper extremities and was present in lower extremities. Nine small metallic pellets were recovered from muscles of left thigh.

15. PW-8 Ram Lakhan Dwivedi is the Investigating Officer of the case who proved steps taken during investigation of the case on 10.9.1981 after departure of earlier Investigating Officer namely, Sri S.S. Saxena on training. The witness proved chik FIR of this case in absence of its author Head Muharrir Nafees Ahmad, who worked with him, and by his evidence Ext.Ka-16 was marked thereon. The witness also proved GD entries of 16.8.1981 of police station concerned regarding registration of case vide GD report No.12 Time 7:20 AM, which was prepared by Head Muharrir Nafees Ahmad in his hand writing and signature. The witness compared the copy of GD entries with original brought by him on which Ext.Ka-17 was marked. The witness also proved GD entries of report No.24, time 10:45 AM dated 16.8.1981 prepared by Head Muharrir Nafees Ahmad in his absence and after comparing the same with original Ext.Ka-18 was marked thereon.

16. PW-9 S.I. S.S. Saxena is first Investigating Officer of this case which was registered at police station Tilhar. After lodging of first information report, he recorded statement of informant and witnesses Chhotey Lal, Anant Ram and Ram Swaroop at police station at the same date i.e. 16.8.1981. He proceeded to PHC Tilhar and carried out inquest on dead body of the deceased after appointing 'Panch Witnesses'. He prepared inquest report in his hand writing and signature, on which Ext.Ka-19 was marked. The witness also stated that he prepared photo lash, challan lash, letters to CMO, sample seal after inquest proceeding in his hand writing and signature, on which Ext.Ka-20, 21 and 22 were marked. As accused persons were at large, he carried out proceeding under Section 82 and 83 Cr.P.C. by orders of the Court and surrender of three accused persons, he recorded their statements on 8.9.1981 at District Jail. Prior to this, he arrested accused Satyapal from his village. He recorded statement of Maina Devi and her husband Jai Chand on 18.8.1981. PW-9 also proved site plan on place of incident as Ext.Ka-23 during his evidence, whereas PW-8 Ram Lakhan Dwivedi proved chargesheet in his hand writing and signature on which Ext.Ka-15 was marked.

17. After conclusion of prosecution evidence statement of accused persons was recorded under Section 313 Cr.P.C. by learned trial court in which accused stated that the witnesses have testified against them due to enmity. A defence case has been taken by the accused Sripal that marriage of his younger brother Satyapal was fixed with Dhan Devi, daughter of Prem Pal but due to some monetary issues, the marriage could not be solemnized and, therefore, he has been falsely implicated due to this enmity with informant's side. Accused Chhotey Dhanuk has taken defence case in his statement under Section 313 Cr.P.C. that accused is 'Dhanuk' by caste and they were rearing pigs around 3 and half years ago, his pig trespassed into the field of Bhudhar Lal (PW-1) and he assaulted the pig. His mother was working as 'Dai' in the village but due to this incident, he prohibited his mother to visit the house of informant and due to this enmity, he has been falsely implicated. Accused persons also stated that accused Sripal and Satyapal are real brothers but they denied this fact that accused Chhotey and Ravindra were working with Sripal. Accused Ravindra Singh had taken a defence case in his statement under Section 313 Cr.P.C. that Raghuveer Singh and Drigpal Singh were his maternal uncles and an altercation took place between Drigpal Singh and deceased Chhatter Singh which resulted in litigation and he has been falsely implicated in the case due to this reason. Accused Satyapal stated in his statement under Section 313 Cr.P.C. that marriage of Dhan Devi, daughter of Prempal was fixed with him but he turned down the marriage proposal and due to which Prempal and Bhudhar Lal were bearing grudge with him as Prempal was son of Bhudhar Lal (PW-1). The accused did not tender any evidence in defence. Their defence is of denial.

18. Learned trial court after considering the submissions made by learned counsel for the parties and appreciating the evidence on record placed reliance on FIR version, observed that the suspicion raised by learned counsel for the defence on thumb impressions of injury reports and that of written report Ext.Ka-1 are baseless. Ink appears to be different on injury reports and written report. He also observed only due to the fact that PW-1 has stated in cross-examination that he affixed his thumb impression on written report by ink of same ball pain whereas the thumb impression of Ext.Ka-1 appears to be made by stamp pad, no adverse inference can be drawn against prosecution version as well as authenticity of FIR. The prosecution has succeeded to prove the motive as well as the place of incident by its evidence. The FIR has been lodged by PW-1 Bhudhar Lal, who is real brother of the deceased, who is an eye-witness without any unexplained delay and without any advise or consultation with the police. Prosecution has successfully proved that Chhatter was murdered by gunshot fire and the assailants must have intended to kill him when the injury was caused by the gunshot was sufficient in the ordinary course of nature to cause death and that when it ultimately succeeded in causing his death within a few hours. The prosecution has also been able to prove by medical evidence as well as eye-witness account of injured witnesses that three injured witnesses Chhotey Lal, Ram Swaroop and Anant Ram had received gunshot injuries at the time of the occurrence in an attempt to kill them. There was no occasion for prosecution witnesses of fact who were family members of the deceased to set up false story of attempt to molest Smt. Maina, the daughter of the deceased and thus, bring her character into disrepute unless the occurrence was reality. The defence taken by accused persons in their statements under Section 313 Cr.P.C. is without substance. The accused could not produce any witness in support of their case. The prosecution has proved its case that at the time of incident Maina Devi, daughter of deceased and her husband were present in the house and this fact could not be controverted by accused persons by any evidence. There are some natural variations in the statement of genuine eye-witnesses of the occurrence. They have given their eye-witness account according to what they have seen and observed rather than what they might have been taught and tutored. The accused have failed to make out their case that they have been falsely implicated in the case on account of any previous enmity. The trial court has held that prosecution has successfully established its case beyond any reasonable doubt against all the four accused persons.

19. Learned counsel for the appellant submitted that the incident occurred way back in the year 1981 and thus 43 years have passed since the date of occurrence, which fell in the intervening night of 15/16.8.1981 as per the prosecution case. Learned trial court convicted all the four named accused persons for charges levelled against them i.e. under Sections 366/511, 458, 364 IPC and 307, 307/34, 302/34 IPC and accused were convicted and sentenced for various terms in the impugned judgement and order. He next submitted that during the pendency of present appeal, three accused persons namely, Sripal, Satyapal and Ravindra Thakur died and the appeal has been directed to be abated by orders of this Court qua them and only accused Chhotey is surviving at present. The prosecution case as set up does not inspire confidence. The motive attributed to accused persons in FIR as well as in evidence of witnesses is that the accused appellant Sripal was having evil eye on married daughter of deceased Chhatter namely Maina Devi, who had visited her parental place alongwith her husband few days ago the incident. Sripal alongwith three other accused persons committed house trespass in the mid night and tried to abduct said Maina Devi and two accused namely, Satyapal and Chhotey tried to grab Maina Devi, which resulted in firing by accused persons on deceased Chhatter Lal and also on witnesses Chhotey Lal, Ram Swaroop and Anant Ram. There is neither any allegation nor evidence that Sripal, the main accused had himself grabbed Maina Devi or tried to take her away. In fact neither Maina Devi nor Jai Chand were present in the house and they were planted only to set up a false prosecution case. Neither Maina Devi appeared in witness box nor her husband Jai Chand appeared as a witness in support of the fact that what occurred with them when the accused forcefully took him away alongwith witness Chhotey from the place of incident to a nearby sugar cane field. The witnesses who were close relatives of Jai Chand failed to explain in their evidence that what actually occurred with him in between incident and his subsequent appearance on next day at District Headquarter at around 12:00 PM at the time of postmortem. He next submitted that the injuries of injured Chhotey Lal, Anant Ram and Ram Swaroop were found simple by the Doctor, who examined them. If the accused had intended to kill the witnesses, they would have fired fatal shot at them. These anomalies itself created a reasonable doubt on prosecution version and evidence. He also submitted that PW-1 the informant had stated in cross-examination that he had affixed his thumb impression on written report Ext.Ka-1 by ink of same ball point pain by which his son Surajpal scribed the report but in fact it is apparent by naked eye that the thumb impression is marked by stamp pad which was not supposed to be there in the house of the informant. The stamp pad usually remains at police station and marking a thumb impression by stamp pad itself suggests that the thumb impression was made at police station and also suggests that the written report was prepared at police station and not at the house of the informant as stated by him in his evidence. The preparation and marking of thumb impression on written report at police station strongly indicated that the FIR was product of consultation with police and not a natural outcome of the state of affairs which lead to the incident. Inasmuch as PW-5, Dr. R.P. Gulati, who conducted medico legal examination of the injuries of witnesses Chhotey Lal, Ram Swaroop and Anant Ram have opined that the injuries were caused by some hard and blunt object although the injured had stated that these were caused by firearm. Thus, there is medical inconsistency in eye-witness account and a medical evidence. On perusal of FIR version itself, it is manifest that the accused persons were not having common intention of committing murder of deceased Chhatter and even on taking the statement of witnesses on its face value, it can be easily discerned that the incident occurred on spur of the moment and it was not pre-planned. In any manner, the surviving appellant Chhotey cannot be saddled with charge of committing murder of deceased Chhatter where there is specific allegation and evidence that the fatal shot was fired at him by appellant Sripal (since deceased). The evidence of attempt to commit abduction of Smt. Maina Devi is quite unbelievable and it is quite unnatural that if the accused intended to abduct Maina Devi in the incident, why they had taken witness Chhotey Lal and his brother-in-law Jai Chand instead with them. The entire prosecution case is suspicious and highly doubtful and the appellant deserves to be acquitted of all charges.

20. Per contra, learned AGA strongly supported the impugned judgement and order in his submissions and argued that the impugned judgement is quite reasonable, based on due appreciation of evidence on record and it need not be interfered with in present appeal. The case of prosecution is based on direct evidence of eye-witnesses out of whom two are injured witnesses, who also suffered pellet injuries in the incident and prosecution case should not be doubted by imaginary case set up by accused which is devoid of any substance and based on unfounded doubts raised towards prosecution evidence. The written report (Ext.Ka-1) which was promptly filed at police station can not be doubted only due to the fact that it bore thumb impression of the informant which appears to be affixed by stamp pad. The appeal deserves to be dismissed quo surviving appellant whose complicity is duly proved by the evidence on record.

21. Apart from the deceased Chhatter who was found dead on production at hospital for medico legal examination, the other injured namely, Chhotey Lal was medically examined at 9:10 hours, Ram Swaroop at 9:35 hours and Anant Ram at 10:30 hours at Male Hospital, Tilhar by PW-5 Dr. R.P. Gulati and the injury reports are proved as Ext.Ka-2, Ka-3 and Ka-4, respectively by Dr. R.P. Gulati during his evidence before the trial court. These three victims were also advised for X-ray and their X-ray plates are marked as Ext.Ka-9 to Ka-13 and their X-ray reports are marked as Ext.Ka-6 to Ka-8, respectively by radiological Dr. P.S. Verma on 17.8.1981.

22. The medico legal examination of these three injured was conducted on the basis of 'chitthi majrubi' (injured letter) prepared by S.O. concerned and which is addressed to Medical Officer, Incharge Male Hospital, Tilhar, District Shahjahanpur. In this injury letter the concerned police officials has also described the injuries observed on person of the injured persons, which are further verified by medical evidence. According to PW-5, Dr. R.P. Gulati, at the time of examination following injuries were found on the person of injured Chhotey Lal:

1. lacerated wound on left side of back, 9 cm below deep of left shoulder,

2. lacerated wound on left side back lower part,

3. lacerate wound on left side chest 15 cm below axilla,

4. lacerated wound on left 15 cm both left of umbilicus on abdomen

5. lacerated wound on left buttock.

All injuries were simple, caused by blunt object, duration about half day. Lacerated wound each about 1/4 cm X 1/4 cm X subcutaneous tissue X margin inverted. Injured claims the injuries due to gunshot. No shock palpable, no blackening of skin or scorching of hair around wounds. Referred to District Hospital Shahjahanpur for X-ray of abdomen and detection of extraction of skin, if any.

In injury report of Ram Swaroop following injuries were detected by PW-5:-

1. 75 lacerated wounds each about 1/4 cm X 1/4 cm into the muscle on outer side back of right rib over an area 13 cm X 10 cm. Intervening distance vary from 0 to 1/2 cm,

2. lacerated wound 1/4 cm X 1/4 cm into muscle on right side of abdomen, 28 cm below axilla,

3. abrasion circular shape 2 cm X 2 cm all on front of abdomen, 6 cm right of umbilicus.

All injuries simple, caused by blunt object, duration about half day. Injured claims the injuries due to gunshot. No shock palpable. No blackening of skin and scorching of hair. Referred to District Hospital, Shahjahanpur for X-ray.

PW-5 has observed following injuries on person of injured Anant Ram, who was aged around 10 years at the time of examination:-

1. 9 lacerated wound each about 1/4 cm X 1/4 cm into muscle on back, on left side of head in the year 7 cm X 7 cm. The distance between injuries was from 1/3 cm X 1/3 cm,

2. 17 lacerated wound 1/4 cm X 1/4 cm into tissue of muscle, left side back upper half over area 15 cm X 13 cm. Inter se distance between injuries 1/2 cm X 7 cm;

3. 18 lacerated wound 1/4 cm X 1/4 cm into muscle on back and front of outer side of left hand. Thumb, index finger and wrist over an area of 15 cm X 7 cm inter se distance from 1/4 cm X 5 cm.

All injuries simple, caused by blunt object duration about half day. Injured claims the injuries due to gunshot. No blackening of skin or scorching of hairs. All wounds margins inverted. Referred to District Hospital Shahjahanpur for X-ray and detection of injuries, if any.

23. PW-6 Dr. P.S. Verma, Radiologist District Hospital Shahjahanpur proved X-ray plates and X-ray reports of injured Anant Ram, Chhotey Lal and Ram Swaroop as auther of X-ray reports, on which Ext.Ka9 to Ka-13 were marked. In X-ray report of Chhotey Lal, two radio opaque shadow were seen on left side of chest and two were on left side of abdomen on which Ext.Ka-6 is marked. In X-ray report of Ram Swaroop multiple radio opaque shadows were seen on right elbow joint. In X-ray report of Anant Ram multiple radio opaque shadows of firearms was seen on skull and left hand.

24. PW-6, Dr. P.S. Verma, the author of X-ray reports stated in his evidence that he prepared X-ray reports of injured in his hand writing and signature and he had filed their x-ray plates during his evidence before the Court. In cross-examination the witness stated that he had not retrieved pellets of injured nor any pellets were retrieved before him. Radio opaque shadows can be caused due to pieces of stones also but the area where radio opaque shadows were detected, there was no possibility of existence of stone pieces.

25. On re-appreciation of evidence appearing on record in the light of submissions of learned counsel for the parties, we are of the considered opinion that there is no infirmity in finding of learned trial court while recording verdict of guilt with regard to complicity of deceased appellant Sripal for charge under Section 302 IPC, which resulted to causing death of deceased Chhatter Lal, the brother of the informant, at given date, time and place. From evidence on record, this fact is duly proved that in the intervening night of 15/16.8.1981, at about 12:00 PM, Sripal accompanied with Satyapal, Chhotey and Ravindra Singh committed house trespass in the house of Chhatter, situated at village Khanpur, Police Station Tilhar, District Shahjahanpur with intent to abduct Smt. Maina Devi, married daughter of deceased, who had come to her parental place prior to the incident alongwith her husband Jai Chand either with intent to subject her to illicit intercourse with him or to marry her forcefully as from evidence of witnesses of fact, this is proved that Sripal was having evil eye on the said lady but he could not succeed in his nefarious design due to intervention of deceased Chhatter and witnesses, who are his family members. Present appellant Chhotey and co-accused Satyapal caught hold of Maina Devi and tried to drag her on instruction of main accused Sripal. We find no misappreciation of evidence on part of learned trial court on this score and affirm conviction of the appellants including the present surviving appellant Chhotey Lal for charge under Section 366/511 IPC.

26. The motive of offence is specifically attributed to accused Sripal (since deceased), which is duly proved by the evidence of witnesses. On appreciation of evidence with regard to sequence of events, it appears that the intention of the accused appellant was initially not to commit murder of the deceased Chhatter but to abduct his daughter Maina Devi, on whom accused Sripal was having evil eyes and as she had visited her parental place alongwith her husband prior to the incident and appellants were aware of this fact that she was present in her home, they committed lurking house trespass in the house of deceased Chhatter to abduct Maina Devi and Sripal pointed a gun towards deceased Chhatter and his family members to make good his intent to abduct said Maina Devi and with a view to fulfil this object, he directed co-accused Chhotey and Satyapal to catch and take Maina Devi before him. On instruction of Sripal, appellant Chhotey and Satyapal dragged her for few paces on which said Maina Devi and her mother raised alarm and with a view to make resistance Chhatter tried to grab the barrel of the gun of Sripal, to which Sripal opened a fire by his gun at Chhatter who became injured by gunshot. As a mark of protest, Ram Swaroop, the nephew of deceased Chhatter, Chhotey, son of deceased, caught hold of assailant Sripal when he fired a shot at Chhatter with a view to get Sripal freed from hold of witness Chhotey Lal and Ram Swaroop, appellant Chhotey Dhanukk opened fire on said Ram Swaroop and witness Chhotey by his firearm, which resulted into Sripal getting freed from hold of witnesses Chhotey and Ram Swaroop. Thereafter, Satyapal also opened a fire which hit Anant Ram, a child aged around 10 years, who was son of witness Chhotey Lal and Chhotey Lal himself. On meticulous examination of evidence of witness in this regard, we find no anomaly or infirmity in this part of prosecution version, which is supported by reliable prosecution evidence of witnesses of fact and only due to the fact that the witnesses are family members of the deceased and two of them are themselves injured witness, no adverse inference can be drawn in their testimony. There is no rule of evidence that a related witness is unworthy of credit. The only rule of prudence in this regard is that being related witness of the deceased, his testimony should be meticulously examined with a view to avoid false implication of accused persons. Inasmuch as evidence of injured witnesses is usually treated as one of the reliable pieces of evidence and such witnesses are treated as credible witnesses because being injured their presence on the scene of occurrence may not be doubted and it is inconceivable that an injured witness will spare the real assailant and implicate unconcerned person only to settle some score with them.

27. In present case, the motive of false implication attributed to the witnesses in statement under Section 313 Cr.P.C. of accused persons is not based on any logical foundation and on perusal of the defence case taken by accused persons, it appears that the defence case taken in statements have surfaced only for sake of maintaining a defence case. No defence evidence has been adduced in support of these facts. The witnesses have stated in their evidence that Dhan Devi, the daughter of Prempal was only ten years of age at the time of incident and it can hardly be believed that due to some differences over proposed marriage of Dhan Devi with Satyapal, the younger brother of Sripal, the accused persons are falsely implicated in view of non solemnization of marriage. Prempal was son of the informant PW-1 and nephew of the deceased.

28. Prosecution has also been successful to prove the charge under Section 458 IPC against the appellants namely, Sripal, Satyapal and Chhotey, which relates to complicity of appellant for offence of lurking house trespass after preparation of hurt, assault or wrongful restraint. This fact is proved that the appellants committed house trespass on the date of night in the house of deceased after preparation for hurt, assault and wrongful restraint, which is obvious in view of the conduct of appellants as when resistance was offered by deceased Chhatter when appellants tried to drag his married daughter from his house, appellant Sripal fired a shot at him, which resulted in his death within a short span of time as he was found brought dead by Doctor at the hospital. He was produced for medico legal examination of his injuries at the instance of police and by police. Therefore, on the basis of clinching evidence on record on this score as appearing from sworn testimony of the witnesses of fact, the charge under Section 458 IPC is also proved against the aforesaid three appellants beyond reasonable doubt and the three appellants in furtherance of common intention of all committed house trespass in the house of Chhatter after preparation for hurt, assault and wrongful restraint. However, in absence of evidence against appellant Ravindra Singh with regard to charge under Section 458 IPC, this charge is not proved against him beyond reasonable doubt.

29. So far as charge for offence under Section 302/34 is concerned, the charge is duly proved against appellant Sripal for firing a shot at Chhatter with intention to cause his death or with intention to cause such brutal injury as he knew to be likely to cause death of Chhatter - the injured, who subsequently scummed to his injuries. PW-7, Dr. M.L. Tandon, who authored postmortem examination report of deceased Chhatter and proved the same as Ext.Ka-14, has stated in his sworn testimony before the Court that the cause of death of deceased Chhatter was shock and haemorrhage due to antemortem firearm injuries. His death was possibility on 16.8.1981 at 8:30 AM. The injuries found on the person of deceased were sufficient to cause death. Therefore, we find no infirmity in finding of guilt recorded by trial court in respect of deceased appellnt Sripal for charge under Section 302 IPC. So far as vicarious liability of other appellants for offence under Section 302 IPC, of which appellant Sripal was perpetrator, the learned trial judge has not applied the principle of common intention as enshrined under Section 34 of IPC in proper manner and has failed to appreciate the fact that on examination of sequence of events as stated in FIR as well as narrated by witnesses of fact during trial, it is quite obvious that at the time of entry into the house of deceased, the appellants were not sharing any common intention of causing death of any person and known common object appears to abduct married daughter of deceased at the instance of appellant Sripal, who was having evil eyes on her. However, when the deceased offererd resistance, the appellant Sripal fired a shot at him by his firearm resulting in his death after some time, due to injuries suffered in the incident. This is admitted fact that accused Ravindra Singh had not played any active role in the offence and he stood as a guard at the exit of residence of Chhatter and even he did not commit house trespass in the house of Chhatter- the deceased. Apart from this fact, a general role has been assigned to all four accused persons including appellant Ravindra that after the incident of firing in the house of deceased by three appellants namely, Sripal, Satyapal and Chhotey Dhanuk all the four accused took witness Chhotey and Jai Chand, the son-in-law of deceased forcefully with them with intention to kill. This fact emerged in evidence that the accused persons took witness Chhotey Lal (PW-2) and Jai Chand with them in a nearby sugar cane field where they tied hands of Jai Chand and thrown him in the sugar cane field and the witness Chhotey Lal taking advantage of this act of appellants, escaped from the place and came back to his home and join him family members. There is no iota of evidence that apart from Sripal any of the accused persons including present appellant namely Chhotey tried to assault the deceased Chhatter. The Doctor who carried postmortem examination on the person of deceased found one gunshot wound of entry on left thigh with blackening and tattooing on margins of wound. The Doctor also detected one abrasion on outer aspect of upper arm and one abrasion on right elbow. However, none of the witnesses have stated that the deceased was assaulted by any hard and blunt object and only firearm injury found on the person of deceased, is categorically attributed to appellant Sripal. On internal examination, pellets were found in internal muscle corresponding to injury No.1. Consequently, on appreciation of evidence on this score, we failed to countenance the finding of learned trial court to the effect that other accused persons shared common intention of causing death of deceased Chhatter. In fact the intention to kill the deceased arose in the mind of Sripal when the deceased offered resistance and tried to grab the barrel of the gun wielded by Sripal. The other appellants cannot be saddled with vicarious liablity of having common intention of causing death of Chhatter together with appellant Sripal, the author of crime of murder. Therefore, in our considered opinion charge under section 302/34 IPC is not proved beyond reasonable doubt against the appellants namely, Chhotey, Satyapal and Ravindra Singh.

30. So far as the charge under Section 307/34 IPC is concerned, present appellant Chhotey has been convicted of charge under Section 307 IPC (double counts for attempt to commit murder witness Chhotey Lal and Ram Swaroop) while remaining accused Sripal, Satyapal and Ravindra are convicted for charge under Section 307/34 IPC (double counters for sharing common intention to attempt to commit murder of witnesses namely, Chhotey Lal and Ram Swaroop) and the appellant Chhotey Dhanuk has been sentenced to 4 years rigorous imprisonment for charge under Section 307 IPC and 4 years rigorous imprisonment have been awarded to other accused persons for charge under Section 307/34 IPC. If we go through the evidence of witnesses of fact namely, PW-1 informant, PW-2 Chhotey lal, PW-3 Ram Swaroop in the light of FIR version, you find that there is consistent evidence of eye-witnesses with regard to charge under Section 307 IPC. The witnesses have stated that when Sripal fired a shot at Chhatter by his firearm, the witnesses Chhotey and Ram Swaroop caught hold of Sripal but the appellant Chhotey Dhanukk opened a fire at witness Chhotey Lal resulting loss of their hold of Sripal and at the same time Satyapal also opened a fire by his firearm which injured Anant Ram and witness Chhotey Lal. The ocular evidence in support of this charge is in conformity with medical evidence of PW-5, who proved injury reports of three injured persons by his testimony in the Court. Therefore, role of firing is attributed to appellant Chhotey as well as Satyapal but learned trial court has also given a finding that it was accused Chhotey and Satyapal, who fired a shot at witnesses and convicted and sentenced the accused Chhotey and Satyapal for charge under Section 307 IPC and other accused persons for charge under Section 307/34 IPC with finding that they shared common intention of attempt to commit murder of the witnesses namely, Chhotey Lal, Ram Swaroop and Anant Ram. Therefore, the role of causing of offence of attempt to commit murder is specifically attributed to appellant Chhotey as well as Satyapal and same is proved beyond reasonable doubt by prosecution evidence and they are only liable to be convicted and sentenced for charge under Section 307 IPC. In our considered opinion neither accused Ravindra who even had not entered the house of the deceased Chhatter and was out of knowledge as to what happened inside the house nor appellant Sripal who is author of the crime of murder of deceased Chhatter could be convicted and sentenced for charge under Section 307/34 IPC. However, from perusal of medical evidence, it is evident that the injuries of witnesses namely, Chhotey Lal, Anant Ram and Ram Swaroop, who received pellet injuries, were not dangerous to life and therefore, this factum is relevant for deciding the punishment.

31. So far as charge with regard to Section 364 IPC is concerned, learned trial court has found all the appellants guilty of this charge. Learned trial court has recorded finding and awarded punishment to appellants for this charge on account of FIR version and statement of witnesses that after firing incident inside the house of the Chhatter, in which Chhatter received fatal injuries and three persons namely, Chhotey Lal, Ram Swaroop and Anant Ram suffered pellet injuries, all the four appellants took away the witness/injured Chhotey Lal and his brother-in-law Jai Chand towards nearby sugar cane field where they tied Jai Chand and in the process the witness Chhotey Lal made good his retreat from the place taking advantage of darkness of night. This fact has also stated in the evidence of witnesses that when the accused persons were taking Chhotey Lal and Jai Chand with them, they stated that they would kill them but PW-2 Chhotey Lal nowhere has stated in his statement that the accused persons assaulted him even once while taking him with them from the house. If the intention of accused persons was to kill Chhotey Lal and Jai Chand, they would not come back unhurt. Even the witnesses failed to divulge the mode and manner when Jai Chand came back. PW-1 has stated in his evidence that Jai Chand met him in Shahjahanpur next day at around 12:00 hours where dead body of deceased Chhatter was taken for postmortem but Jai Chand himself has not come into the witness box to state as to what happened to him when he was taken to sugar cane field by appellants from the house of his in-laws. There is no evidence that he received any hurt in the process. The witnesses having been close relatives of Jai Chand had not stated about his whereabouts from his alleged abduction by appellants to his return from their captivity. This is natural that said Jai Chand would have disclosed his predicament and sufferance to the witnesses after being made captive by appellants. Therefore, the evidence tendered against the appellant with regard to charge under Section 364 IPC is shaky and not reliable as such. We are of the opinion that learned trial court has misappreciated evidence on record while recording the verdict of guilty against the appellants for charge under Section 364 IPC.

32. On the basis of foregoing discussion, we are of the considered view that the surviving appellant Chhotey is liable to be acquitted of charge under Section 302/34 IPC. He is also liable to be acquitted of charge under Section 364 IPC. However, his conviction is affirmed for charge under Sections 307, 366/511, 458 IPC. This fact cannot be lost sight that much water have come down in the rivers since year 1981 when the occurrence took place. This appeal is itself pending from year 1982 i.e. for 42 years. Therefore, the sentence awarded to the appellant Chhotey for said proved charges deserve to be reduced keeping in view the facts and circumstances of the case, age of the appellant and long pendency of appeal in following manner:-

(1) The sentence of appellant Chhotey for charge under Section 307 IPC is reduced from 4 years rigorous imprisonment to 3 years rigorous imprisonment and Rs.5000/- fine and in default of payment of fine, 6 months imprisonment is awarded.

(2) The sentence of appellant Chhotey for charge under Section 366/511 IPC is reduced from 3 years rigorous imprisonment to 2 years rigorous imprisonment and Rs.3000/- fine and in default of payment of fine, 3 months imprisonment is awarded.

(3) The sentence of appellant Chhotey for charge under Section 458 IPC is reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment and Rs.5000/- fine and in default of payment of fine, 6 months imprisonment is awarded. All the sentences will run concurrently and period undergone by the appellant in jail in connection with present case shall be set off towards the maximum sentence awarded to the appellant Chhotey in this appellate judgement.

(4) The appellant Chhotey is acquitted of charge under Sections 302/34 and 364 IPC and conviction for charge under Sections 307, 366/511 and 458 IPC is affirmed but the sentences stand modified, as stated above.

33. Accordingly, present appeal stands partly allowed.

34. Bail bonds filed by the appellant Chhotey in present appeal are cancelled and sureties are discharged. Appellant be taken into custody by court concerned to serve out the sentence as modified in this appellate judgement.

35. Let a certified copy of this judgement alongwith lower court record be sent to court concerned for intimation and compliance.

Order Date :- 14.08.2024 Kamarjahan

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