Onkar & Anr vs State Of U.P

B. On the basis of the said FIR, investigation commenced and I.O. N.P. Singh (PW.6) came at the place of occurrence and collected seven empty shells of 12 bore cartridges alleged to have been fired by the miscreants. He also recorded the statement of witnesses. Site plan was prepared. Blood stained earth and sample of ash of burnt Chappar was collected. The injured persons were sent for medical examination and treatment. Dead body of Onkar Singh was sent for post-mortem. The Investigating Officer arrested Mohd. Shafi, Ahmad Syeed and Suresh on 25.3.1980 and other accused persons subsequently. The Test Identification parade of four accused, namely, Omveer, Suresh, Ahmad Sayeed, and Mohd. Shafi 3 was conducted and the accused were identified by the witnesses, namely, Roshan Singh, Shishu Pal, Hukam Singh and Jalsur on 17.5.1980. The Investigating Officer filed chargesheet dated 14.1.1981 against 7 accused persons, namely, Bira, Tara, Onkar, Mohd. Shafi, Omveer, Ahmad Sayeed and Suresh.

C. The Trial Court framed the charges on 14.1.1981 against all the 7 accused persons under Sections 147, 302/149, 307/149 and 452 IPC. So far as the present appellants and accused Bira are concerned, an additional charge was framed against them under Section 148 IPC. To prove the case, prosecution examined large number of witnesses including Jalsur (PW.2), Shishu Pal (PW.3) and Bani Singh (PW.4) as eye-witnesses of the occurrence.

D. The accused persons, namely, Bira, Tara, Onkar and Omveer when examined under Section 313 of the Code of Criminal Procedure (hereinafter called Cr.P.C.) took the plea that they had falsely been implicated because of their previous enmity as 5-6 years prior to the incident, an attempt was made on the life of Shishupal, uncle of the complainant Jalsur (PW.2) and in that case accused Tara, his brother Mahabir and father Munshi faced trial and stood convicted under Section 307 IPC and they served the sentence. It was further submitted that Tara, Bira and Onkar were closely related 4 to each other. In respect of another incident, Jalsur (PW.2) had filed a complaint against Tara and Mahabir under Section 395 IPC but the said case ended in acquittal. The other accused persons took the defence that they had enmity with the police and had falsely been implicated in the case.

3. Shri S.B. Upadhyay, learned Senior counsel appearing for the appellants has submitted that injured witnesses, namely, Tarawati and Chandra Bose have not been examined. Similarly, independent eye-witnesses, namely, Roshan Singh and Hukum Singh whose presence at the scene of occurrence had been witnessed by Jalsur (PW.2) himself were not examined. Jagdish who had raised hue and cry immediately after hearing the sound of coming of the accused persons on the spot has also not been examined. Only close relatives of Onkar Singh (deceased) have been examined. Therefore, the prosecution withheld the material evidence in its possession. In the facts and circumstances of the case, the provisions of Section 149 IPC were not attracted. The prosecution miserably failed to prove that there was unlawful assembly constituted for the purpose of executing a common object. The prosecution case itself had been that the prime object was to commit dacoity and not murder of Onkar Singh (deceased). In the deposition, Jalsur (PW.2) had made a statement in the court that Rati Ram was involved in the killing of Onkar Singh (deceased) and his name also finds place in the FIR lodged by Jalsur (PW.2) but no chargesheet has been filed against him. In view of the above, the appeal deserves to be allowed.

13. Thus, the graveness of charges against the appellants that they in concert with other accused to achieve a common object entered into the house of the complainant stood proved.

14. In view of the above, we do not find any force in the appeal.

Facts and circumstances of the case do not warrant any interference in the matter. The appeal lacks merit and is, accordingly, dismissed.

...J. (T.S. THAKUR) New Delhi, January 18, 2012 16