- (1.) NASEEMUDDIN, J. This Appeal has been filed by Om Prakash S/o Ganesh Prakash and Santosh S/o Om Prakash against the judgment and order dated 13-8-1991, passed by Sri R. C. Gautam, the then III Addl. Sessions Judge, Lakhimpur Kheri in S. T. No. 101 of 1990, whereby the appellants were convicted for an offence punishable under Sections 302/34, I. P. C. and each of them was sentenced to under go imprisonment for life.
(2.) ON 10-6-1989 at 0030 hours an F. I. R. was lodged with the Police of Kotwali Dhaurhara district Lakhimpur Kheri by P. W.-l Babboo Lal S/o Mihi Lal R/o Raipur against the two appellants, alleging that the same night on 9-6-1989 while he alongwith his brother Bhaiya Lal and the younger brother Ram Khelawan, Chhotey Lal S/o Mool Chand, P. W.-2 Kishori Lal were returning from Dhaurhara Bazar to their village Raipur and reached near the sugarcane field of Peer Ghulam about 8 p. m. then the two appellants armed with Banka, challenging Bhaiya Lal started causing hurt to Bhaiya Lal by means of Banka. That out of fear these persons rushed towards the village. That many persons of the village were brought to the spot of occurrence by these witnesses. That these persons found that Bhaiya Lal was lying dead and the miscreants had run away. ON the basis of this EI. R. Ext. Ka-1 Chick Ext. Ka-3was prepared and case was registered vide Ext. Ka-4. Case was inves tigated by P. W.-4 Sukh Ram Sonkar S. I. who went on the spot and prepared the inquest report on the dead body and sealed it. The inquest report Ext. Ka-5 and its connected papers Exts. Ka-6 to Ka-9were sent alongwith the dead body for post mortem. Then site map of the place of occurrence Ext. Ka-10 was prepared. Sample of blood stained and plain earth was taken into custody and sealed and prepared its memo Ext. Ka- 11. Some papers (Ext. 2 and 3) were given by Smt. Bitto of which memo Ext. Ka-12 was prepared. Statements of the witnesses were also recorded and autopsy on the dead body of Bhaiya Lal was prepared by P. W.-3 Dr. S. K. Tiwari. After completing the investigation charge-sheet was sub mitted. Accused denied the allegations and pleaded not guilty to the charge. Ac cused Santosh was alleged to be a minor. The trial Court believed the evidence of the prosecution witnesses and convicted and sentenced the appellants as above. Feeling aggrieved the present appeal has been filed. Learned Counsel for the parties were heard and record of the trial Court was perused. The motive of the occurrence as alleged in the EI. R. was an incident of three years prior to the lodging of the EI. R. wherein Bhaiya Lal, the deceased was objected to the construction of a Man-dir by the two appellants. Both the sides alleged the land of the Mandir to be their own. It was alleged by the appellants that Babboo Lal (P. W.-l) etc. have not been permitting them to offer their prayer in the Mandir. Kishori Lal has been cultivating the land of Babboo Lai. It was further alleged that the dead body of Bhaiya Lal was found in the field of Peer Gulam. That no occurrence as alleged took place. A second motive was brought in evidence regarding the illicit relation of Bhaiya Lal with one Meena, the daughter of Om Prakash appellant. However, these two motives were simply alleged. The prosecution had examined Babboo Lal and Kishori as the two witnesses of the factum of occurrence. Babboo Lal is the real brother of the deceased and Kishori Lal is alleged to be the person who cultivates the land of Bab boo Lal. Other witnesses of factum of occur rence mentioned in the EI. R. and elsewhere viz. . Ram Khelawan, Chhotey Lal etc. were not produced before the trial Court.
(3.) THE occurrence is alleged to have taken place at about 8 p. m. in the night. No source of light was mentioned in the EI. R. under which the alleged appellants were seen and identified. THE post-mortem report inter alia, reveals that 100 gram of food matter recognised as rice was present in the stomach. THEre was material and gases in the two intestines also. Besides, there were found to be the following ante-morrem injuries on the dead body of Bhaiya Lal: (i) Incised wound 4 cm. x 1 cm. x muscle deep on right side of head 10 cm. above right ear. (ii) Incised wound 25 cm. x 2 cm. x bone fractured right side of head 3 cm. above right ear. Membranes an bones are divided. (iii) Incised wound 20 cm. x 2 cm. on the right temple and right side of neck and bone just above right ear pinna extending from front of right ear pinna to back of neck on right side (Note under neath by No. 38. 4 fracture of tem poral parietal and middle cranial fossa found ). (iv) Incised wound 3 cm. x 1/2 cm. x muscle deep on left side head 7 cm. above right ear. (v) Incised wound 8 cm. x 3 cm. x bone deep on right scapular area, horizontal direc tion (scapula fractured ). (vi) Incised wound 7 cm. x 1 cm. x muscle deep on right side back of chest in middle part, vertical and oblique. (vii) Incised wound 6 cm. x 2 cm. x cavity deep on the left side chest 7 cm. below left nipple axilla fractured and pleura and lung congested. (viii) Incised wound 3 cm. x 1 cm. x muscle deep on palmer side of left wrist. (ix) Incised wound 14 cm. x 1/2 cm. x bone deep in left palmer, extending from root of thumb to base of little finger. (x) Incised wound 7 cm. x 1 cm. x bone deep in left palm at the base of index finger. (xi) Incised wound 15 cm. x 3 crn. x bone cut in right fore arm back aspect and inner back, muscles, vessels and both bones of fore arm divided. (xii) Incised wound 2 cm. x 1 cm. on right fore arm and proximal of wrist. Brain, membranes were congested pulpy and divided. Middle cranial fossa fractured. THE cause of death was shock and haemorrahage as result of ante-mortem in juries. THE post-mortem was conducted on 11-6-1984 at 5. 20 p. m. The above datas of the injuries and food matter have to be looked into with the fact that the occurrence took place near Abadi and in the open field while the deceased and other persons were return ing back from Dhaurahara Bazar in the night. In the F. I. R. no source of light was mentioned but the source of light was in troduced in the statements of the two wit nesses of fact of occurrence It was men tioned that there was Moon light under which the appellants were identified. The very fact that it was stated that the as sailants were identified and recognised in the moon light shows that the occurrence took place in the night. The Abadi of the village is away by about 50 paces according to P. W.- 1 from the field and Rasta of occurrence. None of the persons which included the real brother had intervened and had tried to rescue the victim. P. W.-l says that when he returned alongwith the villagers at the place of occurrence he had found the victim dead and that he had reached the spot of occurrence immedi ately alter the occurrence. By this he per haps means that when the occurrence started and all the persons ran away then P W.-l came alongwith the villagers on the spot i,e. , he returned after leaving the oc currence in middle. He says that he dic tated the F. I. R. at about 11. 30 p. m. in that night. He clarifies that the report was writ ten after three hours of the incident and that thereafter he started for the police station alongwith two others viz. , Chhotey Lal Chaukidar and Chhotey Lal S/o. Mool Chand. As to why F. I. R. was written in the village after three hours has not been ex plained. P. W.-2 stated that when he had started alongwith others for the village from the Bazar then the Sun had not set and it was after ten minutes that it became night. The distance of the village from the Bazar is three miles. So there is no doubt that it was dark. If the occurrence had been seen, then there was no reason to delay the writing of the F. I. R. by three hours. This is important in this case because if the F. I. R. was dictated at 11. 30 p. m. then the lan guage of the F. I. R. would have been such which would have indicated that the occur rence took place on that day (viz. , today ). In the F. I. R. the word used is that the occurrence took place yesterday. If the F. I. R. had been written at. 11. 30 p. m. then the natural thing was to write that the occurrence had taken place today. The writing that the occurrence took place yesterday means that the occurrence was not witnessed by any one and the F. I. R. was written later on and was ante-limed. It was introduced in the evidence of the two wit nesses that the two appellants caught hold of the victim aged about 28 years by hold ing one hand each and caused injuries by another hand by means of Banka. One of the appellants is a minor and the other appellant is aged 50 years. Had it been so then it would not have been possible to cause so much injuries of such dimension in presence of kith and kin of the vict m only 50 paces away from the Abadi. There would have been certainly resistance from the victim as well as from the real relation and others who were present on the spot. It may be mentioned that the story of the prosecution is that these persons were returning after shopping and the victim had money and vegetables etc. and other persons had also material with them but none of these things including the money with victim was recovered from his body at the time of preparation of the inquest report. Moreover it is alleged in the F. I. R. that all the witnesses had run away towards the village out of fear and thereafter had returned alongwith others and found the victim dead. The witnesses say that these persons continued standing and continued to witness the occurrence and that P. W.-l ran away from there. Another thing was introduced to the effect that the appel lants were also saying that Bhaiya Lal be killed. This thing was never alleged originally. The occurrence took place on the road initially but P. W.-2 says that no blood had fallen down on the Rasta. He says that blood was found only at the place where the dead body was found. These facts shows that none of these two persons were present on the spot or in any case the occurrence took place some time in the darkness and nobody could be seen. If there had been a source of light, be it Moon light, then this fact would have been men tioned in the F. I. R. It was the sixth night of Shuklapaksha and full moon was away by about 8 days.;