Prafulla C.Pant, J. - (1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 23rd October, 2008 passed by Sessions Judge, Nainital in Special Session Trial No. 32 of 2005, whereby appellant Gopal Puri has been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced to imprisonment for life and also directed to pay a find of Rs. 10,000/- in default of payment of fine, he has been directed to undergo imprisonment for a further period of one year.
(2.) HEARD learned counsel for the parties and perused the Lower Court?s Record. Prosecution story, in brief, is that on 11.05.2005, at about 1:30 p.m., appellant Gopal Puri, armed with PATAL (heavy sharp edged weapon), alongwith, co-accused Pramod Danu (since deceased) armed with a fire arm and one Jagdish Singh also armed with PATAL, came to the shop of Mahesh Chandra Pant (deceased), situated in Car Road, Bindukhatta within the limits of Police StationLalkuan, and committed his murder. A First Information Report was lodged by Navin Chandra Pant (P.W.-1) at Police Station-Lalkuan on the very day at about 3:25 p.m., against Pramod Danu (since deceased), Gopal Puriappellant and two others, relating to offences punishable under Section 302 I.P.C. It is also mentioned in the First Information Report that accused Pramod Danu was a history-sheeter. It is further mentioned in the report that Mahesh Chandra Pant was taken, in an injured condition, for medical treatment to hospital where he was declared brought dead. On the basis of First Information Report, Check report (Ext. A-4) was prepared by the police and crime no. 847 of 2005 was registered relating to offences punishable under Section 302 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. Investigation was conducted by Station House Officer Harish Chandra Panda (P.W.12). Meanwhile, as Mahesh Chandra Pant was declared dead in Soban Singh Jeena Base Hospital, Haldwani, the inquest report (Ext.A-8) had already been prepared by the Police at Haldwani. The dead body of the deceased, in a sealed condition, alongwith the sketch of dead body (Ext.A-10), Police Form No.13 (Ext.A-9), sample seal (Ext. A-11) and letter to Chief Medical Officer (Ext.A-12), was sent for post mortem examination. Dr. B.K. Tilara (P.W.5) conducted post mortem examination on the dead body of Mahesh Chandra Pant on 11.05.2005 and prepared autopsy report (Ext. A-13). He recorded as many as six ante-mortem injuries, which included five incised wounds and one firearm injury in the report. The Medical Officer opined that the deceased has died of shock and haemorrhage due to ante-mortem injuries. Investigating Officer inspected the spot; prepared site plan (Ext. A-15 and Ext. A-17). He also interrogated the witnesses and made recoveries of PATAL from accused/ appellant Gopal Puri and Jagdish Singh and prepared recovery memos (Ext. A-14 and Ext.A-3 respectively). On completion of investigation, Charge sheet (Ext.A-21) was filed by the Investigating Officer against the accused/ appellant Gopal Puri and Jagdish Singh alias Jaggu for the trial in respect of offences punishable under Section 302 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. It was mentioned that the third accused Pramod Danu was absconding. (It is reported that later Pramod Danu was killed in an encounter with the Police). On receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., the parties were heard and charge of offences punishable under Section 302 read with Section 34 I.P.C. and one punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986 were framed against the aforesaid two accused Jagdish Singh and Gopal Puri, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Navin Chandra Pant (informant-an eye witness), P.W. 2 Lalit Mohan Pant, P.W.3 Anand Prasad (scribe of the report), P.W. 4 Ayyaz Alam Khan (witness of inquest report), P.W.5 Dr. B.K. Tilara, who conducted post mortem examination, P.W.6 Sub Inspector Arun Kumar, P.W.7 Sub Inspector Manoj Kumar, P.W.8 Suresh Chandra Joshi, P.W.9 Girdhar Singh (declared hostile), P.W. 10 Tara Singh Negi (declared hostile), P.W.11 Chatur Ram and P.W.12 Harish Chandra Panda (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, they alleged the same to be false. In defence D.W.1 Sunder Singh was got examined. After hearing the parties, the Trial Court found accused/appellant Gopal Puri guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. After hearing on sentence, the convict was sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/-. However, he was acquitted of the other charge relating to offence punishable under Section 2/3 U.P. Gangsters and Anti Social Activities (Prevention), Act 1986. Another accused Jagdish Singh was acquitted of the charge relating to both the offences. The convict Gopal Puri, aggrieved by the impugned judgment and order dated 23.10.2008 passed by Sessions Judge, Nainital in Special Sessions Trial No. 32 of 2005, preferred this appeal before this Court.
(3.) BEFORE further discussion, we think it just and proper to mention the ante-mortem injuries recorded by P.W.3 Dr. B.K. Tilara, who conducted post mortem examination on 11.05.2005 and recorded following antemortem injuries on the body of Mahesh Chandra Pant:- i. An incised wound 8 cm. x 0.1 cm. on the left side of forehead, margins sharp, the wound is bone deep, exposed frontal bone found fractured. ii. An incised wound 10 cm. x 1 cm. noted on the face which is obliquely placed extending from the left nostril to chin, margins are sharp and underlying fracture, left nostril muscles, incisor teeth, tongue and the mandible are cut alongwith upper jaw where incisor teeth are detached. Not attached to tissues. iii. An incised wound of size 6 cm. x 0.5 cm. noted on the chin, adjacent to the injury no.2, margins are sharp, muscle cut. iv. Incised wound 3 cm. x 0.5 cm. lying adjacent to the injury no.3 margins sharp. v. Incised wound of 6 cm. x 0.5 cm. on the mid pad of skull, margins sharp, underlining bone found cut alongwith heamotome in and around tissue free blood seen in cranial cavity. vi. An wound of entry of oval shaped 3 cm. x 1 cm. noted on the interiorly left chest on the anterior axillary line, on the second and third intercostal space, 5 cm. above the left nipple laterally, margins inverted and scorched and wound is cavity deep, there is a blackening present around the wound in the area of 3 cm., no tattooing observed. On further exposure underlying second and third rib found fractured. Ten pellets recovered from the site of injury (chest cavity), which was sealed. According to the Medical Officer (P.W.5) Dr. B.K. Tilara, the deceased has died of shock and haemorrhage due to ante-mortem injuries. From the medical evidence, as discussed above, it is established on record that Mahesh Chandra Pant died a homicidal death. Now this Court has to see whether accused/appellant Gopal Puri, with common intention with other co-accused, committed murder of Mahesh Chandra Pant or not?;