Barin Ghosh, C.J. -
(1.) IN the First Information Report, lodged at 07:45 a.m. of 25th October, 2001, by Deepak (PW1), it was alleged that the appellants murdered his mother Smt. Suman at 07:00 a.m. in his house and that he witnessed the murder being committed in his presence along with one Shyam Singh (PW8). This First Information Report contained the signature of PW1 as well as the signature of Kunwar Singh (PW9). PW9 happens to be the husband of the sister of the deceased. In the First Information Report, it was alleged that, while appellant Sampati Bisht was restraining the movement of the victim by catching her hair, appellant Devendra Singh Bisht inflicted injuries on the victim by a patal, a heavy sharp -edged weapon, and, at the same time, appellant Dhanendra @ Dhirendra Bisht was inflicting blows on the victim with a cricket wicket. This First Information Report led to filing of a charge -sheet against all the appellants alleging commission of offence punishable under Section 302, read with Section 34, of the Indian Penal Code. Appellants were charged also for having committed offence punishable under the said Sections.
(2.) AT the trial, prosecution proved, through PW2, the post mortem report of the victim. PW2 was the doctor, who conducted the post mortem. The post mortem report suggested that the cause of death is ante mortem injuries caused by sharp -edged object. The post mortem report suggested that the victim received eight injuries. Seven injuries were shown as incised wounds, some of them bone deep and some muscle deep. The eighth injury was initially shown as an incised wound and, later, converted to lacerated wound. However, it was indicated that the said injury is 1 x 1 cm into muscle deep on the outer part of the middle thigh. PW2, in course of tendering evidence, did not, however, clarify that a lacerated wound may be of that nature. As the wound has been described, the same appears to be incised wound. In course of tendering evidence, PW1 held out that there was a water tap, in which some wooden chip was stuck. Victim asked PW1 to fetch a plier. PW1 returned with a plier when he found that the victim and the appellants are quarrelling near the said tap. He stated that, at about that time, appellant Devendra Singh Bisht and appellant Dhanendra @ Dhirendra Bisht left the place and went to the backside of their house and returned. While appellant Devendra Singh Bisht returned, he had a patal in his hand and, while appellant Dhanendra @ Dhirendra Bisht returned, he had a cricket wicket in his hand. PW1, then, stated that, while appellant Sampati Bisht held the victim by her hair, appellant Devendra Singh Bisht inflicted injuries on the victim by using the patal and appellant Dhanendra @ Dhirendra Bisht gave blows with the cricket wicket. No doubt, one side of the cricket wicket has a sharp edge and the same is supposed to be covered by a small metal sheet, but PW1, in course of evidence, did not describe the cricket wicket that was allegedly used by appellant Dhanendra @ Dhirendra Bisht. PW1, at the same time, did not hold out in course of tendering evidence that appellant Dhanendra @ Dhirendra Bisht was using the cricket wicket as a spear. Therefore, PW1 held out that appellant Dhanendra @ Dhirendra Bisht was using the cricket wicket as a stick. The post mortem report does not suggest that the victim received any injury, which could be, thus, inflicted.
(3.) PW 1 held out that the incident narrated by him was also watched by Shyam Singh (PW8). PW8 did not support the version of PW1 and, accordingly, was declared hostile. In the circumstances, the incident complained of was seen by PW1 alone. If his evidence is looked at, the same would show that the victim on the one side and the appellants on the other were quarrelling amongst each other. At that stage, appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht left the place of incident and returned respectively with a patal and a cricket wicket. Appellants Devendra Singh Bisht and Dhanendra @ Dhirendra Bisht, thereafter, inflicted blows respectively by patal and cricket wicket. Appellant Sampati Bisht was holding the hair of the victim. The said state of affair clearly indicates that PW1 has not been able to establish that appellant Sampati Bisht, from the beginning, intended that the victim will be inflicted injuries by patal and cricket wicket. The overt act on the part of appellant Sampati Bisht, according to PW1, appears to be catching hold of the hair of the victim. The fact remains that, while appellant Sampati Bisht was a woman, the victim was also a woman and they were quarrelling before an arrangement was made to bring patal and cricket wicket to inflict injuria upon the victim. In such circumstances, if appellant Sampati Bisht was holding the hair of the victim, that cannot be treated as an overt act in respect of intention to cause injuries to the victim through patal and cricket wicket.;