- (1.) This Jail appeal arises from a judgement and order dated 18.3.1999 passed by the learned Additional Sessions Judge, Meerut convicting and sentencing the appellant to life imprisonment and a fine of Rs. 5000/- under section 302 IPC and in default of payment of fine, the appellant has to further undergo three months rigorous imprisonment. Heard Shri Jitendra Kumar Sisodia, learned Amicus Curiae for the appellant and Shri Arunendra Singh and Shri A.N. Mulla, learned Additional Government Advocates for the State. This is a case of fratricide. The allegations in the FIR lodged by the informant Brij Pal Singh, father of the deceased Arvind alias Bholu at police station Parikshatgarh, district Meerut at 2.30 p.m. were that on 2 9.1997 at 11 a.m. when he entered his house after bringing fodder from his field, he saw the appellant Sandeep with a bloodstained knife in his hand. On enquiry, the appellant ran away towards the Jungle without explaining anything. He went inside to find his other son Arvind alias Bholu lying dead on the cot. He thereafter proceeded to the police station to lodge the report which mentions that his son Arvind had been murdered by his other son Sandeep. On the basis of the FIR the case was registered as case crime No. 168 of 1997, under section 302 IPC by Head Muharrir Kalu Ram. The investigation in this case was conducted by PW 4, S.O. K.M. Mishra. He copied out the GD in his case diary and recorded the statement of HM Kalu Ram and the informant Brij Pal Singh. Thereafter he proceeded to the spot where he prepared the site plan on the pointing out of the informant. On his dictation the inquest papers were prepared by HM Kalu Ram. After getting the relevant papers prepared, he sent the body for autopsy. He made a recovery memo after cutting out a portion of the rope matting of the cot. He also recorded the 161 Cr.P.C. statement of Smt. Bimla, PW 2, the mother of the deceased and the appellant. The Investigating officer was not successful in arresting the appellant, who himself surrendered in Court on 15.10.1997. Thereafter the I.O. recorded the statement of the accused in jail. P.W. 3 Dr. P.P. Verma, who conducted the post-mortem examination on the body of the deceased found the following ante-mortem injuries: (i) Stab wound 3.5 c.m. X 1 c.m., front of chest left side 4 c.m. medial to the left nipple. (ii) Incised wound 1 c.m. X 0.5 c.m. X muscle deep, front of chest, right side lower part, 12 c.m. below medial right nipple. (iii) Incised wound 5 c.m. X 1 c.m. muscle deep inner side left elbow. (iv) Incised wound 2 c.m. X 1 c.m. X muscle deep left side buttock lower part.
(2.) According to the doctor plura, left lung and pericardium were punctured and the heart was cut on the left side and one litre of blood was present on thoracic cavity, The cause of death was shock and haemorrhage as a result of injuries. The doctor further opined that the deceased could have died at 11 a.m on 2 09.1997. He further stated that injury No. 1 was sufficient for causing the death of the deceased. Two witnesses of fact, PW 1 Brij Pal Singh, the father of the deceased and the appellant and PW 2 Smt. Bimla, mother of the deceased and the appellant have been examined in this case. PW 1 Brij Pal Singh reiterated his version given in the FIR that when he entered the house after bringing fodder, he met his son Sandeep, who was carrying a bloodstained knife in his hand. To his query as to what had happened, the appellant gave no answer and ran away towards the jungle. When he went inside, he saw his other son Arvind alias Bholu lying drenched in blood on a cot. He had knife injuries on his person. Having concluded that the appellant had committed the murder of this brother, he dictated the report to Raj Pal Singh and after signing it, submitted it at the police station. He admitted that there was no quarrel between the deceased and the appellant prior to the incident.P.W. 2 Smt. Bimla, the mother of the deceased and the appellant has deposed that the deceased was in his Angan and he was getting ready to take a bath with a bucket at the tap in the court yard. At that time the appellant was near the deceased, but when she came down, on the arrival of her husband, she found that Arvind had received knife injuries. At that time the appellant Sandeep was not present in the house. Her husband told her that the appellant had given knife blows on the deceased and had thereafter run away. He had seen him going away with a knife. She herself did not see Sandeep, the appellant giving knife blows or running away from the place. It was 11 a.m. at that time. She also admitted that there was no previous enmity of the two brothers, i.e. the appellant and the deceased and they never quarreled earlier. When her attention was drawn to her 161 Cr.P.C. statement, she denied having given any such statement to the investigating officer. The said statement (Ext. Ka 13 ) mentioned that she was an eyewitness of the incident. At 11 a.m. Sandeep, the appellant came to the tap in the courtyard for bathing, but the deceased Arvind said he was first going to take his bath. At that time Sandeep asked the deceased to remove the bucket, but he refused and said that first he would bathe, then the appellant could bathe. On this the two brothers began to quarrel. The elder brother Bholu brought a little stick and proceeded towards the appellant, then the appellant Sandeep picked up a knife and by the time she could stop Sandeep, he had given knife blows to Arvind alias Bholu. Then Sandeep ran away from the house. By then his father had arrived. In his statement under section 313 Cr.P.C. the accused denied having participated in the incident and stated that he had falsely been implicated in the case due to enmity.
(3.) It was argued by the learned counsel for the appellant that the chain of circumstances for establishing the guilt of the appellant in this offence is not complete. There is only the evidence of the father of the deceased PW 1 Brij Pal Singh, who stated that he saw the appellant Sandeep with a knife. The statement to the police under section 161 Cr.P.C. (Ext. Ka 13) given by Smt. Bimla the mother of the appellant and the appellant cannot be read in evidence. She has turned hostile and has been cross-examined by the prosecution as she has denied being an eye witness in Court and disclaims having seen the appellant assaulting the deceased although she was present in the house. Both Brij Pal Singh and Smt. Bimla admit that there was no previous enmity of the two brothers. As nothing was recovered from the appellant nor has any extra judicial confession been made by him, on the basis of the sole testimony of PW 1 Brij Raj Singh of having seen the appellant armed with a bloodstained knife leaving the house when he arrived, who did not respond to his queries as to what had happened, and thereafter by finding the other son Arvind lying in the house with knife wounds, on this solitary circumstance it would be unsafe to record the conviction of the appellant. To this contention, learned Additional Government Advocate replied that there was no reason for false implication of the appellant by his own father, who saw him armed with a bloodstained knife. The mother may have turned hostile because she would be unhappy in sending her other son to jail after losing her elder son Bholu, but she has admitted that both the appellant and the deceased were present on the ground floor of the house near the tap. But when her husband came and cried out for her, she came down, at that time the appellant was not there. It was further argued by the learned AGA that in such circumstances the onus lay on the appellant under section 106 of the Evidence Act to explain as to how the deceased had died. We see force in the submissions of the learned AGA. There was no reason why the father would falsely nominate his son for the murder of his other son as no enmity beyond a blank statement of the appellant in his statement under section 313 Cr.P.C. that he had been falsely implicated due to enmity, has been brought on record. In a natural manner the father states that he had arrived at the spot after collecting fodder and he had found the appellant carrying a bloodstained knife in his right hand. When he inquired from the appellant as to what had happened, the appellant gave no answer and ran in the direction of Jungle. The deceased had no other enemy, who could have committed the murder at 10.30 a.m. in the house, nor was anyone else, other than their mother, present at the house at that time, and therefore when PW 1 Brijpal saw his other son lying on the cot inside the house with injuries he concluded that it was his son (the appellant Sandeep), who had committed the murder of his other son Arvind, whom he had seen going away with a blood stained knife. The version of the mother PW 2, Smt. Bimla, although she has departed from her 161 Cr.P.C. statement given to the investigating officer (Ext. Ka 13), at least admits that immediately prior to the incident both the appellant and the deceased were present at her courtyard near the tap and Arvind was about to take a bath. Thereafter her husband arrived and called her and when she came down, by then Sandeep had disappeared and Arvind was lying dead with knife injuries on his person. However, she claimed that Arvind was absent at that time and only her husband had told her that Sandeep had stabbed Arvind and run away and that he had seen him running away. However, the part of her statement where she denied being an eye witness who had seen the knife assault by the appellant of her other son was challenged by the prosecution and she was declared hostile.;