- (1.) HEARD learned counsel for the parties and perused the record.
(2.) THE present criminal appeal has been filed on behalf of Jag Ram son of Bhawani Deen and Ganga Ram son of Khalbal resident of Village Padhori, P.S. Maudaha, District Hamirpur against the judgment and order of conviction dated 11.10.1982 passed by Sri H. L. Kureel, III, Additional Sessions Judge, Hamirpur in S.T. No.294 of 1980 convicting the appellants under section 302/34 IPC and sentencing them for life imprisonment. The first information report was lodged by Karan Singh son of deceased Desh Raj Singh, resident of Village Padhori, P.S. Maudaha, District Hamirpur. The written report is exhibit Ka-1. The incident is dated 24.8.1980 and first information report was lodged on same day i.e. 24.8.1980 at 6.45 P.M. According to version of the first information report the trial was pending regarding murder against deceased Deshraj Singh, father of the informant and in that murder case 23.8.1980 was the date fixed hence informant along-with his father and one Jagdev Prasad @ Kariya son of Ramadheen Lohar went to court. In that case statement continued upto 4.00 P.M. Thereafter, some conversation with counsel took place and it was not appropriate time to return hence they stayed at Hamirpur and on next day morning of 24.8.1980 they proceeded for their house. All the three reached at Maudaha and had taken meals. From Maudaha they proceeded at 3.00 P.M. on foot for there home. At about 4.00 P.M. They reached near 7th mile-stone, father (Deshraj) was ahead and informant and Jagdev were at a some distance behind him. The accused Jag Ram son of Bhawani Deen and Ganga Charan son of Khalbal Gaderiya with farsa in their hands appeared there, who were coming towards them. Jagdev Prasad spoken to his father look the enemies, who are coming. His father said that it was a day light, what they would do, proceed ahead. When they reached near the agricultural field of Laxmaniaya Kevat at the same time accused appellant Jagram and Ganga Charan Gaderiya reached just in front of his father. As soon as his father tried to escape, accused appellant Jagram, attacked with farsa on head of his father, who fell down on earth. Informant and Jagdev Prasad raised alarm and due to fear they Jumped in the agricultural field towards left of the road. They started raising alarm loudly but accused appellants Jag Ram and Ganga Charan repeatedly assaulted on head with farsa and crushed his head to death. After hearing their cry, Kewats, of the surrounding area, came running with warning the accused appellants, by that time both the appellants after killing his father ran away towards west of the road. Then they went towards north and run away from the spot. Thereafter, they came on the spot and saw that his father was lying dead. After some time the villagers reached on the spot. After leaving the dead body he went for lodging the first information report. The written report was prepared by informant Karan Singh son of the deceased and the same was handed over to the head constable/Moharrir, who was on duty at the P.S. Maudaha on 24.8.1980 and the FIR was registered at 6.45 P.M. The I.O. proceeded to the spot and panchayatnama was prepared in the light of petromax. The dead body was sealed and taken into custody. Blood stain, soil was also recovered and Fard recovery was prepared. He inspected the spot and site plan was prepared. The statement of witnesses were recorded. The dead body was sent for post-mortem. After completing the investigation charge-sheet was submitted under section 302/34 IPC. The case was committed to the sessions court after completing the formalities and thereafter, the charge was framed under section 302/34 IPC. Both the accused denied the guilt and have volunteered to contest the case. Prosecution examined the P.W.-1, Karan Singh, informant, who is son of the deceased, P.W. 2 Jagdev Prasad Singh @ Kariya who is also eye witness, who was accompanying deceased along-with informant. P.W. 3 Sri Chhabinath Singh, Head constable/Moharrir posted at Maudaha, who received the written report and chick report was prepared. P.W. 4 Purushotam Narain Chaturvedi is investigating officer, who submitted charge-sheet, P.W. 5 is doctor J.P. Tripathi, who conducted the post mortem of the deceased. The appellants were examined under section 313 Cr.P.C., who have denied the allegations and charges. Doctor J.P. Tripathi found following injuries on the person of deceased Desh Raj Singh. There are 7 anti mortem injuries and one post mortem injury. 1. Incised wound 7 cm. X 4 cm. bone deep behind right ear, obliquely placed tailing downward cutting bone underneath. 2. Three incised wounds in an area of 9 cm x 5 cm size 3 x1x bone deep 9 x 2 cm x brain deep. Bone cut underneath. Brain matter coming out, 6 cm x 1 cm brain deep from before backward on back of skull placed obliquely and tailing downward and overlaping each other on right occipital region 7 cm behind right ear. 3. Incised wound 4 x 1 cm x brain deep running obliquely and tailing downward on right occipital scalp 1 cm above injury no.2. 4. Multi incised wounds merging each other in an area of 11 cm x 6 cm on right parietal, occipital scalp, brain matter coming out, bone cut into pieces 1 cm medial to injury no.3. 5. Contusion 5 x 2 cm on left face 1 cm below left angle of mouth. Mandible bone fractured. 6. Contusion 3 cm x 1 cm on right face upper part underneath maxilla bone fractured. 7. Incised wound 2 cm x 8 cm on back of right shoulder tailing upward 2 cm above posterior axillary fold. Post-Mortem Injury_ Incised wound 4 cm x 1/2 cm x skin deep on back over left shoulder. Learned counsel for the appellant challenged the order of conviction and sentence on the ground that the presence of witnesses was doubtful on the following grounds:- 1. If only deceased was required to attend the court, there was no occasion that the informant and the witnesses would went along-with deceased to attend the date fixed before the trial court. 2. According to P.W. 1 he was not aware why P.W. 2 Jagdev Prasad went to Hamirpur and according to P.W. 2 he went for making inquiry regarding the complaint case pending against his brothers. 3. Even if they stayed on 23.8.1980 then ordinarily they will proceed for their home in the morning and will reach to their home by noon on 24.8.1980. 4. They were accompanying the deceased, it is unnatural conduct that after seeing the accused appellants armed with farsa, who have enmity, they will proceed ahead, rather they will try to escape from the reach of the accused appellant. 5. It was further unnatural conduct that both the witnesses including the son of deceased (informant) did not try to save deceased Deshraj rather they jumped in the agricultural field and were watching incident while deceased was being assaulted by Farsa in their presence, however, injuries appears to have been caused by axe. He further contended that injury no.5 and 6, which were contusion has not been explained by the prosecution. He further submitted that in fact nobody has seen the incident. After getting the information when villagers and family members including the informant reached on the spot then the story was cooked up because there was enmity with the appellants and anti time first information report was got registered at 6.45 P.M. with regard to the incident, which has taken place at 4.00 P.M. where as the distance from the place of incident of the police station is about 8 km. Since nobody has seen the incident hence medical report does not corroborated the version of the FIR and statement of witnesses because injuries appears to have been caused by axe and lathi. The investigating officer has also noted, in the site plan, signs of lathi near the dead body on the earth.
(3.) LEARNED counsel for the appellant further submitted that according to post-mortem report pasty food was found, in the intestine, faecal matter and gases were present hence these circumstances shows that he left Hamirpur early in the morning after taking light breakfast, and before he eased himself incident took place. The informant could not tell the name of those Kewat, who reached on the spot after hearing his cry, the number of the bus, the exact fair and the name of the shop keeper from where the petromax was taken. The distance of the place of incident was more then 2 km. According to P.W. 2 the information was passed on by, who were residing near the place of incident to the next persons and they further communicated to the next villagers residing there and subsequently, it was communicated at the village of the informant. There was river in between the place of incident and village of the informant hence there are contradictions in the statement of both the witnesses and version of the FIR. There is a contradiction regarding weapon of assault and use of weapon with the post-mortem report. According to prosecution case deceased and both the witnesses were not having any arm including lathi. Hence they did not dare to proceed ahead towards there enemy, who were armed with farsa. These circumstances clearly shows that the prosecution case is suspicious, doubtful and in fact no one has seen the incident and assailants. Merely due to enmity as deceased and brother of witness P.W.2 were involved in murder of Ram Nath, real brother of appellant Ganga Charan, hence appellants were falsely implicated in the present case. Appellant no.1 is also related with appellant no.2. In view of these facts, the present appeal is liable to be allowed setting aside the judgement of conviction and sentence awarded by the trial court.;