- (1.) These appeals by way of special leave arise out of the following facts : On 6th February, 1989 at about 2:45 p.m., the first informant Ram Pukar Chaudhary (PW-2), had gone to ease himself when he heard some sounds coming from outside his house. On returning, he saw his nephews Anjani Chaudhary armed with a pistol and a lathi, Bhimsen Chaudhary armed with a farsa and KinKin Chaudhary armed with a bhala assaulting his brother Prem Kumar Chaudhary, killing him on the spot. PW-2 raised an alarm, whereafter Satyadeo Chaudhary (PW-1), Madan Chaudhary (PW-5) and Ahsarfi Chaudhary (PW-4) also reached the site and saw part of the alleged occurrence. The motive for the murder was that the family property had been partitioned amongst the four brothers and their mother, and the mother had started living with the deceased Prem Kumar Chaudhary and had also executed a gift-deed in respect of her land in favour of PW-2's wife on which PW-2's brothers Mukti Chaudhary and Ram Pukar Chaudhary as well as the appellants had raised a dispute. On receiving information about the incident, a police party reached the village and recorded the statement of PW-2 and on that basis and after due investigation a charge-sheet was submitted against the appellants under Section 302/34 of the Indian Penal Code, to which they pleaded not guilty and were brought to trial.
(2.) The prosecution, in support of its case, examined inter alia: PW-3 Ramadhaar Chaudhary who proved the F.I.R (Exhibit-2), CW-2 Sikan Shahani proved the gift deed dated 15th December, 1987 executed between Suhagwati in favour of Dharamsheela Devi and several other formal witnesses who proved the animosity and prolonged litigation between the warring brothers. PW-4- Ahsarfi Chaudhary and PW-5 Madan Chaudhary who had been named as eye-witnesses, however, turned hostile and did not support the prosecution. The prosecution, accordingly, fell back on the eye-witnesses; PW-1 Satyadeo Chaudhary, PW-2 Ram Pukar Prakash Chaudhary, PW-13-Ram Padarath Chaudhary and PW-14 Tarawati Devi, the wife of deceased.
(3.) The Trial Court held that the evidence of PW-14 could not be believed as her presence had not been noted in the FIR. The court then went into the eye-witness account of Satyadeo Chaudhary PW-1 and observed that though he belonged to a village at a distance of about eight miles from the place of incident, his presence was proved on record as the wife of the deceased was his sister and on the day in question he had been present to participate in a religious ceremony in her house. The court also found that as the statement of this witness had been recorded by the police at about 5:00 p.m. that is within half an hour of the recording of the F.I.R, his presence was proved on record for this additional reason. Likewise, the Trial court examined the evidence of PW-2 Ram Pukar Chaudhary, the brother of deceased, who deposed that as his mother had gifted her share of the land in favour of his wife, the other members of the family were annoyed on that account. He further stated that Bhimsen Chaudhary had been armed with a farsa, Kinkin Chaudhary with a Bhala and Anjani Chaudhary with a lathi and they had inflicted injuries to the deceased with their weapons. The court also found that the ocular evidence was corroborated by the medical evidence as there were thirteen (13) injuries on the deceased, out of which twelve (12) injuries were incised and injury No.5 was a penetrating wound which could have been caused by a Bhala. It was, however, noted that there was no injury with a lathi on the deceased. The court further observed that there was absolutely no delay in the lodging of the FIR. The Trial Court accordingly convicted all the accused under Section 302 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for life and a fine of Rs.15,000/- with a default sentence as well.;