- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Uttarakhand High Court upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC').
(3.) Background facts in a nutshell are as follows: On 18.9.1993 at about 8.00 p.m. in Village Fauji Math Kota within the limits of P.S. Rudrapur (now part of District Udham Singh Nagar) accused appellant Buddu Khan and deceased Dinesh Oli were sitting together on a cot. Girish Chandra Chaturvedi (PW-1) was also present there. In his presence Buddu Khan protested to the deceased as to why did he bite on his cheek in the presence of his wife. Thereafter, Girish Chandra Chaturvedi had left the place. When PW-1 along with Tejpal (PW-5) and Jai Prakash again came towards near the office of Co-operative Society where earlier aforesaid incident had taken place, they saw Buddu Khan hitting with a brick on the head of Dinesh Oli and was saying that he will give the deceased taste of biting the cheek. The three eye witnesses rushed and caught hold of appellant. However, he escaped after freeing himself. The report of the incident was lodged by Tejpal Singh (PW-5) with P.S. Rudrapur on the very day i.e. on 18.9.1993 at about 9.30 p.m. after getting it scribed from one Dharampal. Constable Ved Pal (PW-3) who received the First Information Report prepared check report and made necessary entry in the general diary, a copy of which is Ext.A-7. The crime was initially investigated by Sub-Inspector Surendra Singh Dagri (PW-7). He went to the spot and got prepared inquest report on 19.9.1993 at 2.00 a.m. after taking the dead body of the deceased in his possession. He also prepared site plan. The police also got prepared other necessary papers, sketch of the dead body, police form No.13 and letter to the Chief Medical Officer, requesting him for getting the autopsy done. Constable Pramod Kumar (PW-4) took the dead body in a sealed condition for post mortem examination to Soban Singh Jina Hospital, Haldwani and handed it over for the purpose. Dr. A.S. Singh (PW-2) conducted the post mortem examination on 19.9.1993 at about 1.00 p.m. on the dead body of deceased and prepared report. He opined that cause of death was ante mortem injuries on the skull bone and effusion of blood into the brain matter. Subsequently, investigation was taken over by Prem Singh Ahlawat (PW-6), Inspector who after interrogation of the witnesses and completing the investigation submitted charge sheet to the Magistrate concerned. Case was committed to the Court of Sessions. The trial Court placed reliance on the evidence of the eye witnesses PWs 1 and 5. In appeal, the stand was that there was no pre-meditation. On the contrary, because the deceased had bitten on the cheek of appellant in the presence of his wife, there was a quarrel and in course of which the appellant picked up a brick and hit it on the head and one blow was given. The High Court did not find substance in the plea that Section 302 has no application.;