Pankaj Naqvi, Saurabh Shyam Shamshery - (1.) This criminal appeal arises out of judgment and order dated 05.11.2004 passed by Additional Sessions Court/Fast Track Court, Room No.2, Jhansi in Sessions Trial No. 1 of 2004, convicting the (accused/appellant) under Section 302, I.P.C. and sentencing him to life with fine of Rs.5000/-, and a default sentence of one year. The prosecution case is as under:- A. Kalicharan (PW-1) submitted a written report (Exhibit Ka-1) at Police Station Gursarai, District-Jhansi on 26.9.2003 at 19.30 hours that he was a resident of Mohalla Payega, P.S. Gursarai. His residence and bagiya (grove) was near Ramnagar road, where he and his brother Shankar (PW-5) were present. His cousin Sudama (accused/appellant) who's family was not having cordial relations with his family, came armed with an axe, challenging his mother, that despite death in the family, she was preparing food. Sudama was angry as none in his family had participated in the last rites of his brother Heera Lal, who had died a day before. B. On exhortations, mother of PW-1 came outside, accused Sudama attacked her with an axe, who collapsed. PWs-1 and 5 cried for help but, their mother died even before they reached near her. C. PW's-1 and 5 ran after accused Sudama, but he also attacked their Chachi, (paternal aunt/Jasoda) with an axe at Chungi on Ramnagar Road. She too collapsed at the spot. Meanwhile, accused Sudama ran away. PW's-1 and 5 returned and found their Chachi (aunt) also dead. PW-1 informed police that dead body of his mother lay at Bagiya (grove) and that of Chachi at Chungi, Ramnagar Road. D. According to written report, (Ext Ka-1) occurrence took place between 5-6 P.M. On the basis of said written report, an F.I.R. (Ex-Ka-2) bearing Case Crime No.87/03 was lodged at 7.30 P.M. at Police Station-Gursarai, District-Jhansi against named accused (Sudama) under Section 302 I.P.C. Distance between place of occurrence and police station was reported to be 1 ½ km. E. Investigation commenced same day i.e. on 26.9.2003 when PW-6 (IO) obtained statements of PW-1. On 27.9.2003, he collected blood stained and plain earth from the place of occurrence, prepared site plan (Ext Ka-8). Inquests of Jasoda and Durga Bai (Ext Ka-4 and 5) were conducted at 6.00 A.M. and 7.20 A.M. respectively. On 2.10.2003, an axe along with handle was recovered at the pointing out of accused in presence of witnesses, Shankar (PW-5) and Santram from a naali (drain) in front of a carpenter's shop. Recovery memo (Ext Ka-7) was prepared. Blood stains were also found on the axe, which was sent for forensic examination. As per the forensic report dated 15.11.2003, human blood was found on the axe but blood group was not detected as it had disintegrated. F. Autopsy of the deceased Jasoda (Ext-5) and Durgabai (Ext Ka-6) were conducted by Dr. R.G. Shankhwar (P.W.4) on 27.9.2003 at 3.30 P.M. and 2.45 P.M. respectively. Following antemortem injuries were found on the body of Jasoda: i. Incised wound 8 cm x 2 cm bone deep present over left upper bone of scapula, wound situated horizontally margins are clean cut. Clotted blood present in and around wound underlying bone upper border of left scapula fractured wound situated 8 cm posterior to top of left shoulder. ii. Lacerated wound size of 4 cm x 3 cm x bone deep situated horizontally on left side of just above left ear. Brain material coming through wound. Underlying bone fractured. iii. Lacerated wound 3 cm x 1 cm x muscle deep situated just posterior to left ear. iv. Contusion 3 cm x 3 cm situated right side skull situated 6 cm above right ear. Cause of death was shock and haemorrhage due to abovementioned antemortem injuries. Following antemortem injuries were found on the dead body of Durgabai: i. Lacerated wound size 4 cm x 1 cm x bone deep situated (lt) side of mandible and fracture of (lt) side of mandible present. ii. Incised wound 9 cm x 3 cm x brain deep situated horizontally. Brain material coming through wound situated 3 cm above (rt) ear (rt) side of fractured and temporal bone fractured sitauted (rt) side of skull. iii. Lacerated wound situated (rt) side of face just lateral to (rt) nostril size 5 cm x 1.5 cm x bone deep (rt) maxilla fractured. iv. Lacerated wound 3 cm x 1 cm x bone deep situated just lateral to (rt) mouth angle and fracture of (rt) upper jaw present. v. Lacerated wound 4 cm x 2 cm x muscle deep on lateral aspect (rt) lower and situated 6 cm above (rt) elbow joint. vi. Lacerated wound size 1 cm x 0.5 cm x 0.25 cm area interior aspect (rt) side arm situated 6 cm above (rt) elbow joint. vii. Incised would size 6 cm x 2 cm x muscle deep over anterior aspect (rt) mid thigh situated 14 cm above (rt) knee joint margins are clean cut. Wound situated horizontally clotted blood present in and around the wound. viii. Lacerated wound 7 cm x 1.5 cm x muscle deep situated obliquely just above lateral condyle (rt) femur lateral side. Cause of death was shock and haemorrhage due to abovementioned antemortem injuries.
(2.) Prosecution in order to prove its case examined six witnesses- (a) PW-1, Kalicharan, first informant, is an eye witness. He supported prosecution version that accused Sudama was upset as deceased Durga Bai (Mother of PW-1) was preparing food despite the death of his elder brother, a day before. Accused Sudama assaulted his mother with an axe and hit her about 6-7 times. PW-1 saw the occurrence along with his brother Shankar PW-5. Both ran after accused Sudama, who on way killed their aunt Jasoda also with the same axe and ran away. (b) In cross-examination PW-1 admitted that his family was not on visiting terms with the family of the accused for the last 4-5 years. His aunt Jasoda was not living with him. He also admitted that a criminal case was pending against him and others on allegations of assaulting the accused. Both PW-1 and 5 used to go for porter's job (palledari) but no regular time was fixed. PW-1 stated that when accused Sudama came, he along with PW-5 (brother) were present at grove (bagiya), doing agricultural work of Kachuwari, while their mother was cooking food inside a room, at a distance of about 100-150 steps from them. PW-1 stated that they had not gone for porter's job (palledari) on the day of occurrence. Accused Sudama had already attacked his mother 2-3 times with an axe before he (PW-1) could see him. None came forward from neighbourhood, despite her cries for help. Accused Sudama caused injury from the sharp side of the axe. Sudama assaulted his aunt for about 2-3 minutes, which he witnessed from a distance of 100-150 steps. Accused caused injury from the sharp side of the axe on their aunt too. (c) PW's-1 and 5 tried to catch hold accused Sudama, but he fled. They left her dead body at Ramnagar Road and went to lodge the FIR. The Investigating Officer (PW-6) reached the grove at about 8-9 P.M. The Investigating Officer had left some policemen near the dead bodies. PW-1 denied the suggestion that the death took place in the incident of dacoity on the day of occurrence. (d) PW-5, Shankar, brother of PW-1, is also an eyewitness who corroborated prosecution version in his examination-in-chief. However, in cross-examination he admitted that on the day of occurrence, he along with his brother PW-1 went for porter's job around 11-12 at noon, as soon as he learnt about the death of his mother, he returned at about 7 P.M. PW-5 also admitted that he was not present when accused assaulted his mother and aunt, only Kalicharan (PW-1) was present. PW-5 further stated that neither he nor his brother (PW-1) went for porter's job on the day of occurrence. PW-5 came accross 7-8 injuries on her mother lying dead near the grove and found her aunt dead when he reached Chungi at Ram Nagar road. (e) PW-2, the Moharrir entered the contents of the written report (Ext Ka-1) submitted by PW-1, Kalicharan, in the G.D. (Ext Ka-2). (f) PW-3, Constable Gangaram is witness to Panchayatnama of the dead bodies of Jasoda and Durgabai. After Panchayatnama, he along with Homeguard Ramdeen took dead bodies for post-mortem. He stated that Panchayatnama of Jasoda started at 8-9 P.M. on 26.9.2003. He further stated that it took about half an hour in preparing the panchayatnama of dead body of Durgabai. He stated that the police remained at the place of occurrence entire night. Proceedings of Panchayatnama were conducted initially in a candle light and later on in torch light. Dead bodies were taken for post-mortem at about 8 A.M. (g) PW-4, Dr. R.G. Shankhwar proved the autopsies (Ext Ka-5 and 6) of both the deceased. PW-4 in cross-examination stated that injury Nos.2, 3 and 4 caused to deceased Jasoda could be inflicted with any hard and blunt weapon. He was not ruling out the possibility that both the deceased had consumed their last meal 4-6 hours prior to their death.
(3.) After prosecution evidence was over, prosecution case was put to the accused. He denied and stated that he was falsely implicated due to prior enmity and stated that actually dacoity was committed on the fateful night in which two persons were murdered. He did not lead any evidence.;