V.K.BIST & PRAFULLA C.PANT,J. - (1.) THIS appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C), is directed against the judgment and order dated 20th December, 2000 passed by 2nd Additional Sessions Judge, Nainital in Sessions Trial No. 173 of 1996, whereby said court has convicted the two appellants, namely, Jasbeer Singh and Munna Fakir under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C) and, sentenced each one of them imprisonment for life and to pay a fine of Rs. 10,000/-.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that P.W.1 Parmindar Singh (complainant), Devendar Singh (deceased), Jasbeer Singh (accused/appellant no.1), and two others, namely, Hardeep Singh and Ravindar Singh were five real brothers. Their father Balkar Singh resident of village Kunwarpur, Sisaiya died about five years before the date of incident, whereafter the property, inherited by the five brothers got partitioned between Devendar Singh (deceased) and Jasbeer Singh (accused/appellant no.1). The other three brothers Parmindar Singh, Hardeep Singh and Ravindar Singh started living with their elder brother Devendar Singh, who was married to P.W.4 Gurdeep Kaur. P.W.2 Ranjeet Singh is son of Gurdeep Kaur and Devendar Singh (deceased). Accused Jasbeer Singh was annoyed with his brother Devendar Singh, as he felt that he (Devendar Singh) has, infact, occupied shares of all the three brothers, who were living with him. He (Jasbeer Singh) used to ask to oust the three younger brothers, who were living with him, so that their land could be shared by the accused/appellant no.1 and the deceased, but Devendar Singh refused to oblige. Due to this enmity, in the intervening night of 24/25 of November, 1995 at about 1:15 a.m., accused/appellant Jasbeer Singh, armed with a rod accompanied with accused/appellant Munna Fakir, who was armed with country made pistol, came to the CHHAPPAR (hut) of Devendar Singh, who was sleeping on a cot in the verandah, when the two came to verandah, P.W.4 Gurdeep Kaur (wife of Devendar Singh) and P.W.1 Parmindar Singh (brother of Devendar Singh) got up. They saw that Jasbeer Singh had caught hold of hands of the deceased and accused/appellant Munna Fakir fired shot from the country made pistol, from a close range, on his head, and both of them ran away towards GURDWARA. The incident was also witnessed by P.W.2 Ranjeet Singh (minor son of Devendra Singh), who was also sleeping in the nearby cot. According to prosecution, electric bulb was lighting in the verandah. Report (Ext.A-1) of the incident was lodged by P.W.1 Parmindar Singh on 25.11.1995 at 5:45 a.m. at Police Station Sittarganj, on the basis of which crime no.456 of 1995 was registered relating to offence punishable under Section 302 I.P.C. against the two accused Jasbeer Singh and Munna Fakir. Investigation was taken up by P.W.6 Sub Inspector P.L. Arya, who went to the spot on the very day (25.11.1995), got the dead body of Devendar Singh sealed and prepared Inquest Report (Ext.A-12). Police also prepared other necessary papers i.e. Sketch of the dead body (Ext.A-13), Police Form No.13 (Ext.A-14), Sample Seal (Ext.A-15), Letter to Chief Medical Officer (Ext.A-16) before the dead body was sent, in a sealed condition, for post mortem examination. P.W.3 Dr. Shailendra Kumar Mishra, Medical Officer, conducted post mortem examination on the dead body of Devendar Singh on the very day (25.11.1995) at about 3:00 p.m. He recorded one ante mortem firearm injury on the left eye and opined that deceased had died of shock and haemorrhage due to ante mortem injuries. The Medical Officer prepared the Autopsy Report (Ext.A-2). On the next day (26.11.1995) the two accused were arrested and a country made pistol and two cartridges were said to have been recovered from their possession by the Investigating Officer, who got registered two separate crime nos.457 of 1995 and 458 of 1995 registered against the two accused relating to offence punishable under Section 25 Arms Act, which were investigated by P.W.5 Sub Inspector B.D. Saraswat. Both the Investigating Officers, after interrogating the witnesses and completing investigation, submitted charge sheets against the accused/appellants Jasbeer Singh and Munna Fakir. Charge Sheet (Ext.A-22) was submitted by P.W.6 Sub Inspector P.L. Arya for trial of the two accused Jasbeer Singh and Munna Fakir in respect of offence punishable under Section 302 I.P.C., while P.W.5 Sub Inspector B.D. Saraswat submitted charge sheet (Ext.A-8) against Jasbeer Singh and charge sheet (Ext.A-9) against the accused Munna Fakir for their trial in respect of offence punishable under Section 25 Arms Act. [Earlier Sittarganj was part of District Nainital].
(3.) THE Magistrate, on receipt of the charge sheets, after giving necessary copies to the accused, as required under Section 207 Cr.P.C, committed the cases to the Court of Sessions for trial. Sessions Trial No.173 of 1996 has arisen out of crime no.456 of 1995 relating to offence punishable under Section 302 I.P.C., Sessions Trial No.174 of 1996 arose out of crime no.457 of 1995 relating to offence punishable under Section 25 Arms Act, against accused Jasbeer Singh 5 and Sessions Trial No.175 of 1996 arose out of crime no.458 of 1995 relating to offence punishable under Section 25 Arms Act, against accused Munna Fakir. All the three cases were consolidated and evidence was recorded together. On 30th March, 1996, the trial court, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against accused Munna Fakir and a separate charge relating to offence punishable under Section 302 read with Section 34 I.P.C. against accused Jasbeer Singh. Both pleaded not guilty and claimed to be tried. Separate charges appear to have been framed against the two accused in respect of offence punishable under Section 25 Arms Act, which were also denied by the accused, who claimed their trial. On this, prosecution got examined P.W.1 Parmindar Singh (complainant and eyewitness), P.W.2 Ranjeet Singh (minor son of deceased and eyewitness), P.W.3 Dr. Shailendra Kumar Mishra, who conducted post mortem examination, P.W.4 Smt. Gurdeep Kaur (widow of the deceased and eyewitness), P.W.5 Sub Inspector B.D. Saraswat, who investigated the crime relating to offence punishable under Section 25 Arms Act, and P.W.6 Sub Inspector P.L. Arya, who investigated the crime relating to offence punishable under Section 302 I.P.C. Oral and documentary evidence appears to have been put to the accused under Section 313 Cr.P.C., in reply to which they alleged the same to be false. The accused pleaded that they had been falsely implicated due to enmity. In defence, D.W.1 S.K. Garg, Sub Divisional Officer of Power Corporation, was got examined, on behalf of the accused. After hearing the parties, the trial court found both the accused Jasbeer Singh and Munna Fakir guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. However, the trial court found that the prosecution failed to prove charge of offence punishable under Section 25 Arms Act beyond reasonable doubt against the two accused and acquitted them of said charge. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay a fine of Rs. 10,000/-, in default of payment of which further rigorous imprisonment for one year was directed to be served. Aggrieved by the said judgment and order dated 20th December, 2000 passed by 2nd Additional Sessions Judge, Nainital in Sessions Trial No.173 of 1996, this appeal was filed by the two convicts.;