Pankaj Naqvi, Saurabh Shyam Shamshery, J - (1.) Appellants Kaloo, Pali and Kiran Pal have preferred this appeal against the judgement and order dated 05.05.2009 passed in Session Trial No.103/1996, by the Additional Sessions Judge, Room No.4, Bulandshahar, whereby the appellants were convicted under Section 302/34 and 307/34 I.P.C., and sentenced to life, with fine of Rs.3000/- each and five years with fine of Rs.2000/- each respectively and a default sentence of six months each.
(2.) PROSECUTION CASE - (a) Barfi Devi (PW-2), wife of the deceased submitted a written report, scribed by Ratan Singh (PW-1), son of the deceased at the Police Station Aurangabad, District Bulandshahar on 08.07.1991 at about 9.05 A.M. alleging that on 07.07.1991, she alongwith her husband Sukhpal and her nephew Ajab Singh (PW-4) were present at her house. At about 8.00 P.M. accused Ramveer S/o Chidda, Kaloo S/o Phike, Pali and Kiran Pal S/o Lakhmi who were related to her, came to her house and took her husband Sukhpal and his nephew Ajab Singh alongwith them to their tube-well on the pretext of taking care of their tube-well for two hours so that they could rest for a while as they have not had good sleep recently. (b) At about 12.00 midnight, when her sons Ratan Singh (PW-1) and Bharat Pal (PW-3) returned to their house after working for Balveer Halwai, she told them about their father having gone with Ajab Singh (PW-4) and asked them to go and check their whereabouts as despite assurance that they would come back soon they had not returned. The sons took a torch, went to the tube-well but came back crying that at tube-well they saw in torch light that the accused Ramveer armed with a spade, Kiran Pal with farsa, Pali with knife and Kaloo with a lathi were assaulting Ajab Singh (PW-4) and Sukhpal. (c) PW-2 her two sons alongwith villagers immediately rushed to the tube-well, where she found her husband Sukhpal lying dead on a cot and her nephew Ajab Singh (PW-4) lying seriously injured. With the help of villagers, Ajab Singh was sent to Government Hospital in a vehicle alongwith some villagers. She alleged that around ten days back Kanchhi, elder brother of accused Kaloo had died by falling into a well and the accused suspected that the deceased Sukhpal was responsible for his death. She also alleged that for fear, she was unable to reach police station at night to lodge the F.I.R., and only in the morning she mustered courage to visit police station, to lodge the F.I.R., on 8.7.91 at 9:05 A.M. at P.S., at a distance of 7 kms. (d) The Investigating Officer (PW-) visited the place of occurrence, recovered a blood stained spade, pharsa, knife, blood stained part of cot and plain as well as blood stained earth. (e) Inquest of the dead body of the deceased was prepared. The accused were arrested. Autopsy of the deceased was conducted by Dr. S. Bhatnagar (PW-7) on 08.07.1991. Following injuries were found on the body of the deceased :- (i) Incised wound, 16 x 11 cm x bone deep, all big vessels cut, trachea and esophagus cut right side neck middle front. (ii) Incised wound 4 x 1cm muscle deep, right chest upper part, 5cm below collar bone. (iii) Incised wound 3 x 2cm left hand back, between index and middle finger. (iv) Incised wound 3 x 1cm x bone, right side of chin. (v) Incised wound 2 x 1cm, right angle of ear, muscle made deep. According to the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. (f) Injured witness Ajab Singh (PW-4) was examined at AIIMS on 08.07.1991, where some treatment was given and wounds were managed. Thereafter, he was referred to Safdarjang Hospital, Delhi, but not admitted due to non-availability of bed. Finally, he was admitted at Guru Teg Bahadur Hospital, Shahdara, Delhi. After treatment, he was discharged on 10.07.1991. (g) After investigation charge-sheet was submitted against all the four accused, case being exclusively triable by Sessions was committed to it and charges were framed under Section 307/34 I.P.C. as well as under Section 302/34 I.P.C., to which the accused did not plead guilty, case went on trial.
(3.) PROSECUTION WITNESSES - (I) PW-1 Ratan Singh supported the prosecution version and stated that when he alongwith his brother Bharat Pal (PW-3) reached their house after work at about 12 midnight on the intervening night of 7/8-7-1991, their mother Barfi Devi (PW-2) informed that accused had taken their father (Sukhpal) and nephew (Ajab Singh) to their tube-well on the pretext of guarding their tube-well for two hours so that they could sleep for some time as they had not slept in last few days. PW-1 alongwith his brother (PW-3) went at the tube-well, they saw in torch light that accused persons were assaulting their father and PW-4/Ajab Singh. PW-1 attributed phawada (spade) to accused Ramveer, pharsa (sharp weapon) to accused Kiran Pal, lathi to accused Kaloo and knife to accused Pali. The accused threatened them that if they do not return, they would also face same consequence. PW-1 and his brother (PW-3) returned and told their mother about the occurrence, thereafter they alongwith their mother and villagers went to the place of occurrence, where they found their father lying dead on the cot and Ajab Singh (PW-4) lying seriously injured. PW-1 supported the alleged motive. (II) PW-1 was subjected to detailed cross-examination wherein it was pointed out that his version about threats from accused at the place of occurrence was not mentioned either in the F.I.R. or in his statement under Section 161 Cr.P.C. He stated about the presence of many persons from the village. In cross-examination, he was unable to describe the mode and manner of assault as also the specific role of the accused. He saw only accused Kaloo assaulting his father with lathi as also the accused assaulting his father. (III) Smt. Barfi Devi (PW-2), wife of the deceased Sukhram also supported the prosecution case. In her chief-examination, she stated that the deceased and injured Ajab Singh (PW-4) were accompanied by the accused to the tube-well. PW-1 Ratan Singh, PW-3 Bharat Pal were sent to the place of occurrence at about 12 midnight, both witnessed the occurrence, returned and told her about the same. This witness also mentioned the weapons attributed to all the accused as told by her sons. She also supported prosecution case regarding the motive. (IV) This witness was also cross examined in extenso. She stated that wife of accused Kaloo was related to her and due to this relationship accused Kaloo accompanied her to the police station for lodging first information report. Her sons i.e. PW-1 and PW-3, witnessed the occurrence from a certain distance but were unable to ascertain whether Sukhpal and Ajab Singh were alive or not at that time when she reached the place of occurrence, her husband was already dead, however, injured Ajab Singh (PW-4) was alive. She specifically stated that when she found her husband lying dead on cot, there were injuries on his neck and the body was cold. She reiterated that her son Ratan Singh (PW-1) and accused Kaloo accompanied her to the police station for lodging the F.I.R. (V) Bharat Pal (PW-3), another son of the deceased, accompanied his brother Ratan Singh (PW-1) to the place of occurrence and also witnessed the occurrence in torch light. He supported the prosecution case on the issue of information given by his mother about the visit of the accused to their house who accompanied his father and Ajab Singh to the tube-well. He attributed the alleged weapons to the accused and also supported the prosecution about the alleged motive. He was also cross-examined in detail in which he stated that accused Kaloo assaulted Ajab Singh and his father with a lathi. He and his brother remained at the place of occurrence for about five minutes when all the accused were continuously assaulting his father and Ajab Singh. He denied that the police nominated the accused persons in the present case as they were under pressure as they could not solve two earlier occurrence which took place in the village. (VI) Ajab Singh (PW-4), the injured witness, supported the prosecution story only to the extent that he alongwith his uncle Sukhpal went to the place of tube-well on the night of occurrence. He stated that they were assaulted by unknown persons. He did not attribute the assault to the accused persons. He was declared hostile. (VII) Ompal (PW-5), driver in the police department is a witness to the incriminating recoveries. He stated in cross-examination that recovery memos and pachayatnama were already prepared before he reached the place of occurrence and he just signed on them. Rampal (PW-6) Constable Clerk, entered relevant contents in G.D. and prepared check FIR on the basis of written report submitted by Barfi Devi (PW-2). (VIII) Dr. S. Bhatnagar (PW-7) conducted the post-mortem of the deceased and proved the autopsy report. In cross-examination, he stated that injury No.1 could possibly be caused by a heavy cutting weapon while injury Nos. 2, 3 and 4 by a spade. He also stated that there was no injury of lathi. (IX) J.K. Yadav, (PW-8) was the Investigating Officer, who took over the charge after initial investigation from S.I. Charan Singh (PW-9), who also supported the prosecution version. In cross-examination, he stated that after taking over investigation, he did not visit the place of occurrence. (X) Charan Singh (PW-9) was the first Investigating Officer who supported the prosecution story regarding recoveries and inquest report. In cross-examination, he stated that PW's 1 and 3 witnessed the occurrence in torch light from a distance of about 20 steps. At the time of occurrence height of corn (sown in the fields near the scene) was 3 inch. Dead body was found at the fields of accused Kaloo. (XI) Chandra Bhan (PW-10) was a witness to the panchayatnama, he proved its contents. ;