- (1.) S. K. Agarwal, J. This appeal was filed by Amolak appellant against his conviction under Section 302 IPC and consequence sentence of life imprisonment inflicted upon him by Shri R. C. Awasthy, the then Ist Additional District & Sessions Judge, Saharanpur by his judgment in ST 163 of 1970.
(2.) THE facts giving rise to the offence are as under : On 18-4-1976 around 12 noon when the informant Shobha Ram and his brother Sadhoo were present in his house and were taking meal six persons Ishwar Dayal, Virendra, Rishipal, Raj Kumar, Ghanshyam and Ramesh Chauhan came to his house and sat down thereafter encoring about Sadhoo. It is alleged that at that time Amolak appellant reached there. All these persons used to visit Sadhoo. It is alleged that at about 1. 00 p. m. (noon) Amolak took away Sadhoo to his shop. He was followed by all the above said accused persons. THE motive for the incident as alleged was squabble between Bachhi and Sadhoo. Some 7-8 days days before the incident milkman Bachhi had lodged a First Information Report against Sadhoo. Having this motive in the back of his mind the informant also claimed to have reached the shop of Amolak at about 1. 30 p. m. He saw Amolak, Ishwar, Virendra, Rishipal, Raj Kumar, Ramesh and Ghanshyam assaulting Sadhoo with bricks and knives at the shop of Amolak. THE informant raised shouts of 'save'. His alarm attracted Vishamber s/o Ridka, Baljit s/o Bhola, Raghuvir s/o Yugal, all residents of Kutubpur, and many others the spot. THEy intervened and save Sadhoo. Sadhoo sustained number of injuries in incident and was lying on the ground inconspicuous in a pool of blood. Amolak was allegedly arrested by the witness at the spot after giving him thorough beating. After a while a police Inspector with two constables also reached the spot. Amolak was handed over to him by the witnesses. THE rest of the accused who took to their heels, were chased by the witnesses. THEy arrested Ishwar Dayal and Virendra near the canal. THEy were brought to the spot and handed over to the police. THE informant lodged the injured on a bullock cart and brought him to the road. He took him to Roorkee Hospital for medical aid. But neither any medical examination was held nor any medical assistance was given to the victim due to non-availability of the doctor. While they were bringing him back to Hardwar the deceased at about 6. 30 p. m. in the evening breathed his last near Ranipur Barrier. Abandoning the body in the taxi at that very place the informant Shobha Ram had prepared a report and took it to police station. This written report is Ex. Ka-2. It was lodged by him on 18-4-1976 at 8. 00 p. m. at O. P. Ranipur, PS, Jwalapur. The autopsy on the person of deceased Sadhoo was conducted by Dr. Jagdish Prasad (PW-1) on 19-4- 1976 at 12. 00 noon. Following ante-mortem injuries were noted. (1) Lacreated wound 2 cm x 1 cm x bone deep right temporal region. (2) Contusion 5 cm on right side of face of (head) in front and above right ear in temporal region. (3) Lacerated wound 1 cm x 1/2 cm x 1/2 cm at the outer end of right eyebrow. (4) Lacerated wound 2 cm x 1 cm x bone deep right side of scalp 6 cm above right ear. (5) Abrasion 1 cm x 1 cm on left forehead 1-1/2 cm above midpoint of left eyebrow. (5) Abrasion 1 cm x 1/2 cm on left side of forehead 1-1/2 above (5 ). (7) Abrasion 3-1/2 cm x 2-1/2 cm left face 2-1/2 cm infaront of left ear. (8) Contusion 5 cm x 3 cm over and around right ear. (9) Contusion 4 cm x 1-1/2 cm on the lower side on face of left eye (left side of face ). The internal examination shows extravagation blood clot 12 cm x 7-1/2 cm on right parietal and temporal region. An internal extravagation blood clot 7 cm x 4-1/2 cm over left temporal region. Depressed and commuted fracture on right parietal and temporal bones in an area of 9 cm x 5 cm under injury No. 4 was also noted by doctor. He also found membrane lacerated and torn in an area of 2 cm x 1 cm under fractured bone. Brain was found deeply congested all over. On the right side lacerated wound 2 cm x 1 cm x 1 cm under fractured bones was also detected on the left. Blood clot 15 cm x 8-1/2 cm. over left hemisphere especially over temporal region was also detected. Two ounces of blood was found present in the internal cavity. Fracture of left cranial fossae and fracture on both middle fossae were also found. The stomach was found containing two ounces digested food. The small intestine was empty and large intestine contained faecal matter. Gall bladder was found full. Urinary bladder was found empty. In the opinion of the doctor the death was caused as a result of head injuries and consequent shock and haemorrhage. The doctor was of the opinion that these injuries could be caused by bricks if the blows were inflicted with force. The injuries were sufficient in ordinary course of nature to cause death. It was further opined by the doctor that the death could occur at 1. 30 p. m. (noon ). The post-mortem report is Ext. Ka-1. He was not cross-examined by the defence at all.
(3.) THE prosecution in support of its case examined PW-2 Shobha Ram who is maker of the First Information Report. He is also an eye-witness and claimed to have arrested the appellant on the spot alongwith others. Baljit is PW-3. He is a chance witness. He had stated that he was gong to Vishamber carpenter for getting his agricultural instruments repaired. Vishamber is PW-4. He is also a chance witness. He claimed that he had gone to Saddique for getting his quilt prepared. Saddique PW-5 was also examined by the prosecution but he turned hostile and denied to have seen anything. But he has admitted that he had heard hue and cry from the shop of Amolak. THE other witnesses examined by the prosecution are formal witnesses. One of them is PW-1 Dr. Jagdish Prasad. He has conducted the post mortem examination. His testimony has been discussed earlier. THE next witness is PW-6 Raj Pal Singh, Head Moharir. He registered the FIR and prepared check report Ext. Ka-3 and GD entries. PW-7 Keshav Deo Verma is Investigating Officer, who reached the spot at about 12-1. 00 noon on receiving the information about Sadhoo being beaten at the Chabutra of Amolak. On reaching the spot, received in his custody the appellant who was in the captivity of the witnesses. He had also taken in his custody two other accused persons who were also apprehended by other witnesses. THE Investigating thereafter was taken over by SHO PW-9 S. S. Verma. He sent PW-7 to prepare inquest on the person of deceased Sadhoo whose body was lying at Ranipur barrier. He had also prepared other relevant papers and sent the dead-body for post mortem examination through constable Kamta Nath and Prahlad. Constable Jay Prakash is PW-8 who escorted the dead body to Hardwar for post-mortem. After completing the formalities the charge-sheet against the accused persons was submitted. No charge-sheet was submitted against Ramesh. The learned Counsel for the appellant has urged before us that there is no reliable evidence on the record to establish the presence of witnesses. They are highly partition and belong to the community of the deceased and the informant. PW-2 Shobha Ram is brother of the deceased. The version has been materially altered from the FIR and the statement recorded under Section 161 Crpc which renders their reliability seriously in doubt. The origin of the Marpit is shrouded in mystery and the evidence of the witnesses fails to prove it in right earnest. On the contrary these witnesses appears to conceal truth from the Court. No independent witnesses of the locality where the incident had taken place were examined. In the FIR names of Saddique and Yashpal find place and the presence of many other persons being admitted as witnesses of the incident, non-production of independent witnesses belonging to the locality is fatal to the prosecution case. The next submission is that no explanation has been offered in the trial Court with regard to the injuries of the appellant. According to the submission of the learned Counsel for the appellant the injuries of the appellant clearly show that they are the result of assault launched upon the appellant by the deceased. It is borne out from the evidence that the deceased was a dare devil and was involved in number of cases of dacoity, assault and theft etc. His history sheet was also opened at the police station. The probability that the incident occurred on account of the deceased attempting to extort money cannot be ruled out in the circumstances of this case. He may have been assaulted by the shopkeepers including Amolak appellant in exercise of right of private defence of their person and property. It has been further stressed on behalf of the appellant that he had absolutely no motive to assault the victim and the motive alleged by the prosecution runs against its own case and supports the defence. The FIR also appears to be ante timed. In order to appreciate the above said argument, we have to examine closely the evidence of PW-2 Shobha Ram, PW-3 Baljit, and PW-4 Vishamber. The other witness PW-5 Saddique has turned hostile and had not supported the prosecution case.;