Decided on June 28,2013

Mohan Swaroop and Ors. Appellant


Servesh Kumar Gupta, J. - (1.) BOTH appeals, titled above, assail the judgment and order dated 09.04.2010 rendered by learned Sessions Judge, Udham Singh Nagar (Rudrapur) in S.T. Nos. 292/2007 and 293/2007, whereby the accused/appellants Mohan Swaroop and Jagdish were directed to undergo rigorous imprisonment for life with fine of Rs. 5,000/ - each for having been found guilty u/s. 302 IPC. Appellant/accused Mohan Swaroop was further sentenced to undergo one year's R.I. with fine of Rs. 1,000/ - for the offence of Section 4/25 of the Arms Act. Smt. Seema and Smt. Savitri (co -accused persons though acquitted) are the wife and mother respectively of the accused Mohan Swaroop, whereas accused Jagdish is his real brother. Deceased Tara Devi, an old lady of 60 years of age, was the real BUA (father's sister) of the appellants who was residing along with her husband Brij Lal in the nearby vicinity of accused.
(2.) THE first information report was lodged by PW1 Smt. Bachan Kaur who was also living in the same vicinity. This incident occurred on 9.8.2007 at about 8:45 PM and the FIR was lodged just after one hour of the occurrence i.e. at 9:45 PM, having been scribed by Prem Shankar R/o Town Kichha, PW1 has averred in the report that accused/appellants were having an ill eye upon the house of Tara Devi (deceased) and were pressing her to transfer the ownership of house in their favour, to which she did not agree, which made the accused persons annoyed. Tara Devi had also disclosed this fact to Bachan Kaur. Since the deceased was apprehending threat to her life, the complainant used to sleep in Tara Devi's house in order to render a safety feeling to her. On the relevant date and lime, when the complainant reached at the house of Tara Devi, she heard a moaning sound. The power supply was disrupted at the moment, so she switched on a torch inside the house and found that accused/appellant Jagdish had overpowered Tara Devi lying on a cot and accused Mohan Swaroop was stabbing knife on her neck. At the same time, Savitri Devi (mother of accused), standing on the stairs, was keeping surveillance on the passers -by. No sooner did the accused were highlighted in the torch light, they escaped from the spot pushing the complainant aside. An alarm was raised which attracted the attention of tenant Smt. Madhu W/o Mahendra from the roof of house. Smt. Madhu disclosed that at about 8:30 PM, when the accused/appellants entered the house, their mother Savitri took her forcibly on the roof and did not permit her to come down even at the disclosure that her husband was to arrive soon. This way, Smt. Madhu was almost kept confined on the roof. Thereafter when the informant went inside the house, she found Tara Devi dead. Then she narrated the incident to scribe Prem Shanker (PW2) and thereafter submitted the report at the police station which is Ex.Ka -1, Chik report whereof is Ex.Ka -13. The police came into motion and arrested the accused. On 29.8.2007, the knife, which was used in the commission of crime, was recovered at the instance of accused Mohan Swaroop, recovery memo whereof is Ex.A -10. Matter was investigated which culminated into submission of charge sheet against the accused persons. A separate chargesheet was also submitted against the appellant Mohan Swaroop for the offence of Section 4/25 of the Arms Act. Charge was levelled against the accused/appellants u/s. 302/120B IPC, as also against the co -accused Smt. Seema and Smt. Savitri u/s. 302/34 and 120B IPC.
(3.) TO prove its case, prosecution has examined PW1 Smt. Bachan Kaur (complainant), PW2 Prem Shanker (scribe of FIR), PW3 Smt. Madhu (tenant of the same house, who has been declared hostile), PW4 Makhan Lal (before whom the I.O. had recovered the bloodstained string of the cot of deceased), PW5 Dr. L.S. Toliya (who conducted post -mortem), PW6 S.I., K.R. Arya (I.O. of the case), PW7 Constable Manohar Singh (before whom the accused Mohan Swaroop got discovered the knife), PW8 S.I. Sundaram Sharma (I.O. of the case u/s. 4/25 Arms Act), PW9 H.C. Devnath (who prepared Chik FIR and made entry in GD) and PW10 Om Prakash (declared hostile). Thereafter the statements of accused were recorded u/s. 313 Cr.P.C. The trial court, vide the judgment under appeal, convicted the accused/appellants, as afore -stated, and at the same time, acquitted the co -accused Smt. Savitri and Smt. Seema from all the charges levelled against them.;

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