S. R. Bhargava, J. - (1.) THIS appeal is directed against judgment and order dated 5th April, 1984. passed by Shri C. P. Misra, the then III Additional District and Sessions Judge, Varanasi, convicting appellants Panna Lal alias Panna, Chhotey Lal, Kailash and Bhagwanta alias Kallu under section 302 read with 34 IPC and under section 201 read with 34 IPC and sentencing each of them to rigorous imprisonment for life under section 302/34 IPC and rigorous imprisonment for two years under section 201/34 IPC both the sentences being concurrent.
(2.) ALL the four appellants and deceased of the case Pancham Pandey were residents of Kachaharia, Police Station Rohania, District Varanasi, Chandrakesh Pandey, PW 1, is nephew of deceased Pancham Pandey, Appellant Panna is said to be uncle of appellant Balwanta (Bhagwanta). it is further alleged that Balwanta is also known as Kallu. He and Panna used to live together. Then it is alleged by the prosecution that the appellant Kailash was friend of appellants Panna and Balwanta. Deceased Pancham Pandey and Chandrakesh. PW 1, used to live together. Then it is alleged by the prosecution that the appellant Chottey Lal lodged a case under section 307 IPC against deceased Pancham and others and that case was pending at that time. According to the First Information Report of the case, Exhibit Ka 1, the murder of Pancham Pandey took place on 9th January, 1981 at 9.30 KM. in isolated place near the well of Mod Lal within local area of village Kachaharia, Harnathpur is said to be a hamlet situate near the well of Moti Lal. Further according to the prosecution story, as given in the First Information Report, at the time of occurrence deceased Pancham Pandey, his nephew Chandrakesh Pandey and one Sullu of the village were returning to their village from Rajatalab Parao. When they reached near the well of Moti Lal all the four appellants suddenly emerged from 'Arhar' field, encircled Pancham Pandey. Appellant Panna; exhorted Chhotey Lal to cut Pancham Pandey. Panua, Balwanta and Kailash caught hold of the cycle of the deceased. Chhotey Lal inflicted "Chhura" blows on the neck of the deceased who succumbed to his injuries. Appellants intimidated the witnesses and threatened them with life. Raj Bahadur, PW 2, and one Munnu Giri arrived at the scene with their torches. The appellants tied the dead body of the deceased to the cycle and dropped the: dead body and the cycle in the well. Incident was witnessed by Chandrakesh, Sullu, Raj Bahadur and Munnu. Appellants were successful in terrorising the witnesses to the extent that during dark night witnesses could not dare go to Police Station for lodging report. A written report was recorded by Chandrakesh Pandey, PW1, himself. It is said that on the following morning i.e. on 10th January, 1991 at 7.05 A.M. he produced written report at Police Station ; distance between the spot of occurrence and Police Station being 10 kilometres. Chick Report was prepared in terms of written report and case was registered against the named assailants.
(3.) THEN according to the prosecution story next morning Investigating Officer Shivash Chandra Misra, PW 7, in whose presence the case was registered, commenced the investigation at the Police Station and with the copy of the report he proceeded to the spot of occurrence along with Chandrakesh Pandey, Raj Bahadur and others. He interrogated the witnesses and inspected the spot. He prepared site plan, Exhibit Ka 14. He collected blood stained and ordinary earth and sealed them in separate tins. THEN it is said that he got the dead body recovered from the well. He took the cycle and rope in the police custody. He made other recoveries from the spot. He got the Inquest Report, Exhibit Ka 8, and other papers including challan Exhibits Ka 7 and Ka 9, prepared by his companion Sub Inspector Vinod Kumar Singh. Significant features of the Inquest Report and Challan were that in Inquest Report eye witness Munnu was one of the Panchas and the weapon used in the crime was said to be "Gandasi" (small chopper), In the challan time of death was shown as unknown. THEN according to the prosecution story the Investigating Officer recovered small chopper used in cutting wool of woolen carpets and he described it as "Chhura Gandasi type" from the gram field near the well. It was blood stained. The Investigating Officer prepared Recovery Memo, Exhibit Ka 16. It is disputed in this case that this weapon was not sent to chemical examiner or serologist. On 11-1-1981 Dr. A. K. Rastogi, a Doctor in Government Hospital, Varanasi, conducted autopsy on the dead body of deceased Pancham Pandey at 3 P.M He estimated probable time since death as about 1,1/2 days and ape of the deceased as 47 years. He found following ante-mortem injuries on the dead body :- 1. Incised wound 13 cm. x .2 cm. x bone deep on front and upper part of neck. Just above the thyroid cartilage larynx and oesophaque cut. 2 Incised wound 4, 1/2 cm. x 1/2 cm. x muscle deep on upper part of neck right side 3, 1/2 cm. below right ear. 3. Incised wound 3, 1/2 cm. x 1 cm. x muscle deep on front neck and right to the middle 2 cm. below from injury no. 1. 4. Incised wound 2, 1/2 cm. a 1/2 cm. x skin deep. 1, 1/2 cm. below from injury no. 3. 5. Abraded contusion 16 cm. x 7 cm. on right side forehead and face and cheek. 6. Abrasion 1 cm. x 1 cm. on back of left elbow. 7.Abraded contusion 4 cm. x 2 cm. on left side of forehead 4 cm. above left eye brow.;