Palok Basu, J.:— This appeal has been filed by two brothers Dori and Kamal Singh. These two and two others, namely, Babu Kumhar and Narain Singh were accused in Sessions Trial No. 159 of 1983. Babu Kumhar and Narain Singh remained absconders, as such their trial could not proceed. The appellants have been convicted u/Ss. 302/34, I.P.C and 323/34, IPC relating to the causing of death of Ganga Ram and causing injuries to Ram Roop, P.W 2 and sentenced to imprisonment for life and 1 year R.I each. The charge u/s. 394, IPC has been held not proved.
2. According to the prosecution story, an incident happened on 12-11-1982 around, 1 p.m in village Khadiha P.S Khadauli district Agra, in which the aforesaid four accused were named as having come to the fields in the possession of the prosecution side, well armed. Dori, Kamal Singh and Babu Kumhar were allegedly carrying fire-arms (Guns) while Narain Singh was armed with lathi. It is skid that in the fields of the said village the appellants and the absconding accused came with the common intention to commit murder Of Ganga Ram and others and in furtherance of the said common intention the said Ganga Ram was done to death while Ram Roop was assaulted with the butt ofthe gun and the lathi by one of the accused. The charge further was that while fleeing after the incident, the accused stook the gun of the deceased Ganga Ram, hence the charge u/s. 394, IPC was also framed. The accused denied their participation and claimed to be tried. They attributed their implication due to enmity and pre-existing animosity relating to politics
3. In ordered prove the case the prosecution has examined in all ten witnesses. It may be noted that PW 2, Ram Roop, is the injured witness while PW 73, Naththi Lal is the informant, who is the brother ofthe deceased Ganga Ram. P.W 4, om Shankar is yet another eye witness. Dr. A.K Jain, PW-1 examined the injuries of Ram Roop on 13-11-1982 at 3-25 p.m at the District Hospital, Agra. Dr. R.K Sharma, P.W 10 conducted the post mortem examination on the dead body of Ganga Ram on 13-11-1982 at 3-45 p.m Raj Narain PW-5 happened to be the constable, who carried the dead body for postmortem examination. Subedar Singh Chauhan PW-6 is the witness of the inquest report. Budha Singh P.W 7 is another witness of the inquest report, who belongs to the village of the incident. Onkar Singh is the Head Constable at P.S Kahdauli, who prepared the Chik Report. Indra Dutt Sharma P.W 9 is the Investigating Officer, who after due investigation filed a charge sheet against the appellants and the two absconding accused.
4. Shri Tej Pal learned counsel for the appellants, raised a preliminary objection to the trial having been held by the IXth Additional Sessions Judge, Agra. His argument was that since Agra falls within the area declared as the dacoity affected area, the trial could, under the circumstances, be held by a Special Judge appointed under the U.P Dacoity Affected Areas Act, 1983. Reliance was placed upon S. 6 of the said Act which reads as follows:—
“S. 6. Jurisdiction of Special Courts………
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, a scheduled offence shall be triable only by a Special Court.
(2) In trying any scheduled offences a Special Court may also try any offence other than such offence with which a scheduled offender may be charged at the same trial under any law for the time being in force.”
5. In, order to examine the validity of the argument a look has to be had at the definition of scheduled offence as also scheduled offender. For ready reference they may be quoted here:
“scheduled offence” in relation to a dacoity affected area means an offence, specified in the schedule to this Act, being an offence committed by a scheduled offender.
“scheduled offender” means a person who commits or has committed or is accused of committing or attempt to commit dacoity or robbery as such or being so connected with scheduled offence as to form part of the same transaction, whether such offence has occurred at the same time and place or at different times and places.
6. There is no doubt that Shri Tejpal is right in, arguing that S. 302, IPC is a scheduled offence, but the other limb of his argument that because it happened to be a scheduled offence, the trial u/s. 302, IPC could be held by a Special Judge is misconceived. A close scrutiny of the definition of “scheduled offence” and ‘scheduled offender’ indicates that if the scheduled offence was committed by a scheduled offender then only the Special Judge will have exclusive jurisdiction to try a case which may primarily involve offence of dacoity or robbery as one of the transactional ingredients. Therefore, the argument that since there was a charge u/s. 394, IPC in the instant trial, the case ought to have been tried, by a Special Judge, loses ground. As indicated above, the instant case was primarily that of a murder and incidentally while fleeing, an attempt was allegedly made to take away the gun of the deceased Ganga Ram. Under the circumstances, the appellants would not fall within the definition of “scheduled offender” and as such the Sessions Judge or for that matter the trial Judge was fully competent to try the c & se u/Ss. 302, 323 and 394, IPC. Therefore, the preliminary objection is hereby rejected.
7. Coming to the merits of the case, it has been argued by Shri Tejpal that Ram Roop's injuries were about 23, hours later and that he too belonged to village Sadabad falling within the district of Mathura, his presence, therefore, at the site is doubtful and the injuries, appear to have been fabricated. In this connection, it was emphasised that even though there is a P.H.C in the village of the incident and there was a note in the ‘Majroobi-Chiththi’ that the injured should be sent to P.H.C there is no evidence to indicate as to how and why the said injured was ultimately asked to go to Agra. Shri R.P Tripathi, Assistant Government Advocate, appearing on behalf of the State of U.P has argued that there is an endorsement in the document (Majroobi Chiththi) showing that the case was referred to District Hospital, Agra, and consequently the said injured Ram Roop was carried to the said hospital by Constable Girish Chand bearing No. 236. It appears that the name of the Constable is also found noted in the Majroobi Chiththi. The cross-examination of P.W 1 Dr. A.K Jain indicates that the existence of the injuries on Ram Roop were not challenged by the accused. Some alternative mode of causing those injuries was suggested. Under the circumstances, we are unable to accept the argument of Shri Tejpal that Ram Roop's injuries were fabricated though he was not present at the scene of occurrence or that he was deposing falsely in the instant case. It was argued that PW-3, Naththi Lal, the informant, has made serious contradictions in his statement as a result of which his presence at the Site may also be doubted. In this connection, attention of the Court was drawn to his statement, (i) that Panchayat Nama was done at the police station, (ii) that the tractor had received gun shot marks and (iii) that there were no gun shot marks on the tractor. The argument proceeds that if the tractor had no marks of pellet anywhere, it follows that neither Naththi Lal nor Ram Roop was present and therefore, it further follows that the witnesses were not present at the scene of occurrence. Shri Tripathi replied by saying that so far sis the causing of some pellet marks is concerned that is meaningless on the facts of the present case because the witness explained that he never said that there were marks of ‘injuries on the tractor. The second argument of Shri Tripathi was that Naththi Lal lodged the FIR at the Police Station at 3-45 p.m There is no reason tb doubt that the FIR was lodged at the said time and manner. Therefore, it is argued that Naththi Lal's presence at the site is fully corroborated by the independent circumstance i.e lodging of the FIR.
8. After considering the matter with all sincerity we are of the view that neither the presence of Naththi Lal at the site can be doubted nor can it be said that there is any such contradiction as would warrant rejection of his testimony by us. It may be noted that the incident had happened at 1:00 p.m It was broad-day light. P.W 4 Om Shanker, who is an independent witness, is available to the Court for lending corroboration to the statement of Naththi Lal, It may further be noted that Om Shanker was also present and has been named in the FIR. Therefore, the FIR also stands fully corroborated not only by post-mortem report but also by the statements of Naththi Lal, Om Shanker and Ram Roop.
9. The third and final point vehemently argued by Shri Tejpal was that the postmortem report does not corroborate the manner of the incident suggested by the prosecution. Attention of the Court was drawn to the injuries sustained by the deceased Ganga Ram. It was argued that since the Doctor had noted “direction probe roughly of wound upward”, the prosecution story about the gun shot injury on the deceased Ganga Ram should be rejected. We do not find any force in the argument raised by Shri Tejpal. It may be noted that the fire arm injuries were just below the shoulder and the margins were inverted and, therefore the direction was upward, as the pellets were not necessarily to remain static. In this connection, Shri Tejpal drew the attention of the Court to another fact that the C.O, who was allegedly present at the Police Station when the FIR was lodged, has not been examined with the result that the statement of the Investigating Officer about the lodging of the FIR also becomes doubtful and the medical testimony as noted through the injury report and the post mortem report would not lend corroboration to the prosecution story. It is true that the C.O has not been examined for no obvious reason and the record is silent as to why the presence of the C.O was not secured by the prosecution. However, it does not cause any damage to the prosecution story since we are placing implicit reliance upon the evidence as revealed through the statements of Ram Roop, Naththi Lal and Om Shanker.
10. In view of the discussions aforesaid, the prosecution has succeeded in proving the case against the appellants and they have been rightly convicted and sentenced.
11. Shri Tejpal then argued that the appellants had already been in jail for nearly 12 years and some concession in this regard shoud be made by this Court. It may be noted that the minimum sentence awardable under S. 302, IPC by the Courts is life imprisonment, hence no reduction is possible. As to the argument that a direction be issued that some remission may be made by the State Government, it is always open to the appellants to move proper application for remission before the State Government. Whenever such an application is moved, it will be decided in accordance with law. With the aforesaid observations, the appeal is dismissed. The appellants are in jail. They will serve out the sentence awarded by the court below.
12. Appeal dismissed.