YOGENDRA KUMAR SANGAL,J. - (1.) THIS criminal appeal is at the instance of four accused namely Parsan, Bispat, Jhurrey and Mangrey who stand convicted and sentenced for the offence under Section 302/34 and 394 IPC for life imprisonment and seven years rigorous imprisonment respectively in Session Trial No. 449 of 1980, P.S. Umribegumganj, District Gonda vide judgment and order dated 15.10.1981 and 16.10.1981 passed by the IInd Additional Session Judge, Gonda. Both the sentences are to run concurrently.
(2.) INCIDENT narrated in the FIR is that on 07.12.1977 at 2.00 P.M. wives of accused Parsan and Jhurrey (real brothers) came at the house of Ramhet/complainant situated at Village Ghadi Manjhar, P.S. Umribegumganj, District Gonda and made complaint that his "calf" caused damage in their Ikh-crop field and they hurled abuses. Complainant stated that calf was of his brother and his father Paramhans also scolded them. On this they returned with a threat that they will send their husband to teach lesson to them. Shortly, thereafter all the four accused armed with lathis came there and hurled abuses and threatened them. Complainant and his father under their fear hid themselves and they did not come before them. They all left the place threatening them that they will chop the tongue of the Paramhans and kill him as and when he will meet them. In the same day mid-night i.e. on 07/08.12.1977, when Paramhans was sleeping in his house, Marah/Bathak all the four accused entered in the house having firearm, sickle, lathis, etc., with them. Three out of them i.e. Jhurrey, Mangrey and Bispat caught hold and pressed Paramhans and Parsan fired shot on him with country made pistol and Bispat given sickle below on his tongue. As usual lantern was glowing in Bathak as Paramhans was suffering with poor vision. On hearing the hue and cry of Paramhans and noise of shot fired members of family awoke. Complainant ignited the "Khari" as such, there was sufficient light and they challenged the assailants. Other villagers and neighbourers also assembled there. Accused persons threatened them on the point of pistol and other arms and they looted ornaments from the body of the sister of the informant namely Shivraji who also was there and saw the occurrence. Accused persons when were leaving the place, they were chased but they succeeded in escaping from there after entering in Arahar Crop field. Thereafter the family members found victim Paramhans in dead position having firearm injuries on right side of his chest to shoulder and on tongue also. FIR was lodged at about 9.30 A.M. on 08.12.1977 at P.S. Umari Begumganj scribed by Raghunath on the dictation of the complainant/informant. On the same case was registered against the named accused persons for the offence under Sections 302 and 394 IPC and entry was made in the G.D. Investigation of the case was taken up by S.H.O. Bharat Singh. He recorded the statement of complainant and his brother at police station and then proceeded to place of occurrence. After seeing the dead body there, he prepared the inquest report, photo lash, challan lash and letter to C.M.O. for the purpose of post-mortem of the dead body and the same was sealed and sent for post-mortem. Thereafter, he prepared the site plan of place of occurrence and collected blood stained and "Sada Mitti" sample of Ash of the "Khari" and also collected pellets spread there and sealed them and also prepared the memo's of the same. He then recorded the statement of the rest prosecution witnesses and made efforts for the search and arrest of the accused persons, but they were not available. Later on, he came to know that they have surrendered themselves in the Court of Magistrate. Investigating Officer also collected post-mortem report of the body of Paramhans where doctor had given details of injuries and condition of body noticed by him and opined that death was caused due to shock and hemorrhage as a result of ante-mortem injuries. After concluding the investigation, he submitted charge-sheet in the matter against the accused persons. After submission of the charge-sheet, learned Magistrate has taken cognizance in the matter and seeing the case under Section 302 IPC committed the same to the Court of Session for the trial of the accused persons. In the Court of Session, all the four accused were charged for the offence under Section 302/34 and 394 IPC but they pleaded not guilty and claimed their trial. The prosecution has produced complaint Ramhet as PW-1; Rammurat his brother as PW-3; Smt. Shivraji his sister as PW-4; Ramsamuj as PW-5 showing them eye-witnesses of the occurrence; Dr. H.C. Srivastava who conducted the post-mortem of dead body as PW-2; Saddique Ali Sweeper a witness of post-mortem of the dead body as PW-6 and investigating officer Bharat Singh as PW-7. Written FIR Exhibit-Ka-1; memo of lantern Exhibit-Ka-2; post-mortem report Exhibit-Ka-3; inquest report Exhibit-Ka-4; photo lash, challan lash Exhibit Ka-5 and Exhibit-Ka-6; letter to C.M.O. Exhibit-Ka-7; site plan Exhibit-Ka-8; Fard of blood stained and Sada Mitti, Ash, pellets Exhibits-Ka-9 to Exhibit-Ka-11; chik report and entry of G.D. about registration of the case Exhibit-Ka-12 and Exhibit-Ka-13 and copy of statement under Section 161 CrPC of Sadique Ali Exhibit-Ka-14 were also produced and proved. Blood stained dhoti and Salooka and blood stain and simple mitti Exhibit-1 to 4 were also produced. In their statement under Section 313 CrPC, accused have denied the correctness of the prosecution case and evidence. Accused Jhurrey and Mangrey stated that Bispat and Parsan are their brothers respectively. Bispat stated that his nephew Bhagwati had kidnapped the daughter of Paramhans five months before the occurrence. Parsan stated that Ramhet and Paramhans used to do Batai Kheti with Raghunath, although he was in possession of the same, they want to get it sold, but he has not permitted them to do so. Only due to this reason, this false FIR was lodged. No evidence in defence either oral or documentary was produced on their behalf. Heard Sri I.B. Singh learned Senior Counsel for the appellants and Sri Rajesh Kumar Diwedi Additional Government Advocate and perused the record. From record, it reveals that it is not disputed to the accused persons that in the night of 07/08.12.1977, father of the informant, namely Paramhans was murdered and he received injuries by use of firearm. Post-mortem report Exhibit-Ka-3 along with statement of Dr. PW-2 who conducted the post-mortem in support of this case of the prosecution is available on the record showing that cause of death of Paramhans was ante-mortem firearm injuries received by him found by the doctor on his body. Injuries are detailed in the report. It was suggested on behalf of the accused to PW-1 informant in his cross-examination that some unknown person has committed this murder and they have been falsely implicated in this case which was denied by him in his on oath statement. Place where murder of Paramhans has taken place is residential house of the informant/complainant. It is also established and not disputed on behalf of the accused which is clear from the record. I.O. has collected blood stained Mitti from that place. He has also collected pallets 14 in numbers from there. I.O. had also shown the same place of the occurrence in the site plan from where he also seized the dead body of the deceased and prepared the inquest report. Moreover, it is also not the case of the accused persons that this murder has taken place elsewhere and dead body was placed there later on.
(3.) AS per prosecution case, injuries found on the body of the deceased resulting in his death were inflicted by the accused Parsan by firing shot with country made pistol when he along with other accused entered into the house of the complainant in the mid-night of 07/08.12.1977 (having firearm and deadly weapons like sickle) under a common intention to commit his murder and Bispat had also given below of sickle on his tongue and at that time rest three accused caught hold and pressed Paramhans for the purpose of chopping his tongue. As per prosecution case, lantern was glowing in the Bathak at the time of the occurrence. The same was hanged there as usual because Paramhans was suffering from poor vision and to help him if he awoke in the night. I.O. has also prepared the memo of this lantern Exhibit-Ka-2 and he has also noticed blackness at the place in the bathak where this lantern was hanging. As per prosecution case when complainant saw the accused persons there he also ignited the "khari", showing that there was sufficient light on the spot at the time of the occurrence in which assailants could be identified. I.O. has also collected the sample of Ash of Khari next day at the time of his inspection and prepared the memo of the same which is Exhibit-Ka-10 on the record. He has also shown the place in the site plan from where he had collected the "Ash" of "Khari". When he was inquired by the counsel for the accused in cross-examination whether he found the leaves of trees nearby the place of the occurrence were effected due to fire, he denied the same and explained that trees were at distance so these were not effected by this ignition of "Khari".;