- (1.) THESE two connected Criminal Appeals were filed by Siaram, Ram Charan alias Changa, Bhagwan Das and Maloo (in Criminal Appeal No. 1172/80) and Megh Singh, Ram Charan and Satpal (in Criminal Appeal No. 1174/800. Siaram, Ram Charan alias Changa, Megh Singh and Ram Charan were convicted under Section 148 IPC and sentenced to undergo R. I. for two years. They were further convicted under Section 302 IPC read with Section 149 IPC and sentenced to undergo imprisonment for life. They were also further convicted under Section 323 IPC read with Section 149 IPC and sentenced to undergo R. I. for one year for causing injuries to Hori Lal. They were further convicted and sentenced to one year's R. I. under Section 323 IPC read with Section 149 IPC for causing injuries to Basudeo. All the sentences of these four appellants were directed to run concurrently. The accused persons of Criminal Appeal No. 1174/80 Bhagwan Das, Maloo and Satpal were convicted and sentenced to R. I. for two years under Section 147 IPC. They were also convicted and sentenced to life imprisonment under Section 302 IPC read with Section 149 IPC. They were further convicted under Section 323 IPC read with Section 149 IPC and sentenced to undergo R. I. for one year for causing injury to Hori Lal. They were further convicted under Section 323 IPC read with Section 149 IPC and sentenced to one year's R. I. for causing injuries to Basudeo. All the sentences were directed to run concurrently.
(2.) IN this case incident had occurred at about 5. 30 p. m. The report of the incident, Ext. Ka 1, was lodged at about 12. 30 p. m. on the next day by Bhurey Lal son of deceased Dhani Ram. Motive behind the incident as alleged by Bhurey Lal, is that they had not permitted the appellants to take a watercourse to their filed. Since the date of refusal the appellants were entertaining animosity with the whole family including their father. On 15-2-1979 when the informant along with his father and brother Radhey Shyam were returning after selling Rab (Molasses) to their house on a dunlop bullock cart, in the way two villagers Basdeo and Hori Lal also met them at about 5. 30 p. m. These persons also boarded the cart. When the dunlop cart reached village Kunerpur, near the grove of Jivan, appellant Siaram and Ram Charan alias Changa armed with guns, Megh Singh armed with a 'pharsa' Ram Charan S/o Dwarka armed with a 'bhala' and the remaining accused Maloo resident of Village Kunerpur, Satpal first cousin of Megh Singh resident of village Rampur and Bhagwan Das S/o Siaram armed with lathis accosted them. They stated "since they were not allowed to draw watercourse through his filed they will teach them a lesson". Then and there Siaram and Ram Charan took positions and exhorted others to assault and stated "let us see who saves them. " Megh Singh and others armed with Pharsa, lathis and spear started assaulting the informant's father. INformant claimed that he and his brother ran towards the village. His father also alighting from Dunlop cart ran Northeast towards the filed of Megh Singh. Their alarm attracted witnesses Nanhey Ram, P. W. 3 Ghurey Ram and many others to the spot. The assailants chased his father and killed him in the filed of Megh Singh by assaulting with Pharsa and Bhala. When the witnesses chastised them they ran away. Basdeo and PW 2 Hori Lal, who intervened were also beaten by lathi. The incident was witnessed by both the injured and other witnesses. INformant, leaving his family members at the spot, went to the police station. The F. I. R. came to be lodged 19 hours after the murder. The explanation for it is that due to rain and fear of the assailants, he could not dare to go to police station during night. The prosecution in support of its case has examined three eye- witnesses. Bhurey Lal P. W. 1. He is son of the deceased. Hori Lal P. W. 2 is an injured witnesses. Ghurey Ram is P. W. 3, P. W. 5 Doctor H. S. Ambwani had conducted the autopsy on the person of the deceased. P. W. 8 Dr. R. C. Sharma conducted the medical examination of injured persons, Basdeo and Hori Lal, on the next day. The autopsy report is Ext. Ka-5 and the injury reports are Ext. Ka-6 and 7. Vishnu Dutt Mishra P. W. 4 is Head Constable. He had prepared the check FIR and G. D. entries. Lalta Prasad P. W. 6 is Head Moharir, Sardar Malkhana. Kripal Singh P. W. 7 is constable who had brought sealed articles of the case property. S. K. Sharma P. W. 9 is the Investigating Officer, P. W. 10 constable Jai Pal Singh escorted the dead-body for the post- mortem examination. P. W. 11 Mohd. Naquvi took sealed bundles from Medical Officer for chemical examination. This is the entire evidence. The defence has produced Mahendra Singh DW 1 and Chedda Khan, P. W. 2, Irrigation Lekhpal who has proved village 'shizra'. The defence has challenged the prosecution case on the grounds; that genuineness of the FIR is highly doubtful; that there is likelihood that the incident occurred after sunset; that the explanation offered for delay in making the FIR clearly indicates police assistance in its preparation, and that the presence of the prosecution witnesses in the circumstances is highly doubtful.
(3.) SO far as P. W. 2 and other injured Basudeo are concerned, FIR shows that they accompanied the informant. Evidence further shows that they had boarded bullock cart of the deceased at an intermediary place i. e. near village Pachak. It is this village where the filed of the informant and the appellants fall or are situated. Dealing with the first submission regarding authenticity of the FIR we find substance in this contention. In para 1 while offering the explanation for delay, informant P. W. 1 stated that he did not make any attempt to lodge the report during night or in the early hours of the morning due to fear of the assailants as also rain. According to him he transcribed the report of the incident next day in the morning and they had proceeded by train to police station Fatehgarh with Latoori Singh, Ram Kirat and two injured Hori Lal and Basdeo. They had also walked some distance on foot. He had very clearly admitted that due to fear none from the village accompanied them. He had taken Ram Kirat from village Nasirpur and Lotoori Singh from village Kuwakhera. These two villages do not fall on the way to police station Fatehgarh. Nasirpur village is about one mile from his village and Kuwakhera is about half mile from Nasirpur. They had proceeded from Kuwakhera and dropped down at Sahaspur Station. From there they had gone to police station Fatehgarh by train. From Bilari above police station is about 4-5 miles Sahaspur police station falls in Bilari. He has denied existence of any shorter route Ukrauli is too far away from the police station concerned. According to him he reached Kudh from Bilari in 2-2 1/2 hours. He reached Bilari at about 10. 00 a. m. He was unable to give out the time that was taken by him in reaching village Bilari from Kuwakhera. He had also stated that he boarded the train from Kuwakhera. He did not know how much time was taken to reach Bilari. According to him he started from Kuwakhera later on. He gave out that he started from Kuwakhera at about 9. 45 a. m. He further admitted that there is a train from Bilari at about 4. 40 a. m. Though there is a train halt at Kuwakhera but it was night, therefore, he had not gone by this train. When he was further probed on the point of report in para 27- 28 very material facts have been revealed which discredit the veracity of the FIR completely. In para 27 he admitted that the report was transcribed by him on his own. It was transcribed near the dead-body. When he was confronted with the statement made by him in the FIR. "i leaving my family members near the dead-body came to lodge this report" he was unable to explain. He admitted clearly that these lines were not transcribed by him in his written report Ext. Ka-1. These lines were written by him at police station Kuwakhera. Rest of the report was transcribed by him near the dead-body. He further admitted that he had not made initial on this report in the village. He explained it by stating that there was no necessity for putting his signature in the village. He further stated that he prepared his report in one stroke but he did not feel any necessity for putting his signature at the end. He clearly admitted that he had not transcribed the above said statement and the word `prarthi' at the spot. These lines and word Prarthi were transcribed by him at Kuwakhera police out post. He had explained the anomaly by saying that he had transcribed last line and the word `prarthi' and put his initial underneath it at the above said police outpost because he was lodging the FIR after a day and he had to give the reason for this delay. The Investigating Officer would have enquired from him who made the report, therefore, he had wrote the word `prarthi' and also put his name underneath it. This fact that Sub-Inspector will enquire from him about the maker of the report did not pass his mind while transcribing the report near the dead- body therefore, he had not written the word Prarthi and his name there. He has very candidly accepted in Court that now he cannot transcribe a similar report. He has offered an explanation that since his stomach is aching and it will take sufficient time in transcribing the same he cannot write it. Examining these circumstances very carefully we have no hesitation in coming to the conclusion that this FIR was transcribed at the police outpost Kuwakhera or at the police station but not at the spot. The above said conclusion of ours is further fortified by under mentioned facts.;