SURENDRA KUMAR, J. - (1.) HEARD Sri P.N. Misra, learned Senior Counsel assisted by Sri Rahul Misra, learned counsel for the appellant, Miss Usha Kiran, learned AGA for the State and perused the evidence on record.
(2.) CHALLENGE in this criminal appeal is to the judgment and order dated 31.5.1982 passed by II Additional Sessions Judge, Muzaffarnagar, in Session Trial No.538 of 1981, State of U.P. Vs. Anis under Section 302 read with Section 34 IPC arising out of Crime No.1148 of 1981, Police Station Kotwali, District Muzaffarnagar whereby the appellant Anis has been convicted under Section 302 read with Section 34 IPC for committing murder of Ram Kumar, aged about 40 years, son of Fateh Chand PW-2, resident of District Muzaffarnagar by making fires from revolver along with his real brother co-accused Nafis on 14.10.1981 at 1:00 p.m. when the deceased Ram Kumar was going along with Pooran Singh PW-3 on the rickshaw which was being pulled by Shobha Ram PW-4, and was sentenced to undergo imprisonment for life. The prosecution story as narrated in the first information report is that on 14.10.1981 at about 1:00 p.m., Ram Kumar son of Fateh Chand PW-2 and Pooran Singh PW-3 were going on the rickshaw on Ansari Road, within police circle Kotwali, Muzaffarnagar. They were near Bhoro Temple when all of a sudden, the appellant Anis and his brother Nafis came out from the market to the south and in furtherance of their common intention, both of them fired shots from their respective revolvers hitting Ram Kumar at several places on his body. Ram Kumar fell down from rickshaw and died at the spot. The rickshaw is said to have been pulled by Shobha Ram PW-4 at that time. Pooran Singh PW-3 at once went to Fateh Chand who worked as a clerk in the Collectorate Court at Muzaffarnagar and informed him about the incident. Fateh Chand went to the place of the occurrence and having seen his son Ram Kumar lying dead on the road, lodged a written report Ext. Ka-2 at Police Station Kotwali on the same day at 2:00 p.m. The case under Section 302 IPC was registered against Anis and his brother Nafis. Investigation was taken up by S.I. Todi Singh PW-7 who immediately went to the place of the occurrence, made inquest and after taking possession of the dead body of Ram Kumar, sent it for post mortem examination through Constable Ghanshyam Singh PW-5. Blood was found on the rickshaw of Shobha Ram as well as on the road. Some fired cartridges and certain articles were also recovered and were taken into possession. After having interrogated the witnesses, he filed charge sheet Ext. Ka-13 showing the appellant Anis and his brother Nafis as absconders. Head Constable Brahma Singh PW-6 was posted at Police Station Kotwali on 14.10.1981 who registered the first information report on the basis of the written report Ext. Ka-2 given by Fateh Chand PW-2, father of the deceased and proved Chik report Ext. Ka-4. He also made entry thereof in the general diary, copy of which is Ext. Ka-5. Sub Inspector Todi Singh PW-7, who was posted at Police Station Kotwali on 14.10.1981, was present at the time when the first information report was lodged at the concerned Police Station and started investigation into the case and 3 reached the place of the occurrence, Ansari Road at once. He also prepared inquest report of the dead body and connected papers (Ext. Ka-6 to Ext. Ka-8) and sent the dead body of Ram Kumar in a sealed condition for post mortem through Constable Nathu Singh and Ghanshyam Singh. The Investigating Officer collected samples of blood stained and simple earth from the place of the occurrence (Ext.1 and Ext.2) and prepared memo Ext. Ka-9. He also found five empty cartridges of 455 bore (Ext.4), three leads (Ext.5) and a handkerchief (Ext.3) having blood stains and sealed them by preparing memo Ext. Ka-10. He made a search of the dead body of the deceased Ram Kumar and found articles (Ext.6) and prepared memo Ext. Ka-11. He also took concerned rickshaw in possession vide memo Ext. Ka-3. The Investigating Officer interrogated the witnesses next day i.e. 15.10.1981. He searched for the accused Anis and Nafis on 14.10.1981 and 15.10.1981 but they could not be arrested as they were not available. The Investigating Officer made a report for proceeding under Sections 82 and 83 Cr.P.C. in the Court of the Chief Judicial Magistrate, Muzaffarnagar, on 16.10.1981 and after obtaining orders from the Court on 21.10.1981 attached the property on the same day and on completion of the investigation, filed charge sheet Ext. Ka-13 treating them as absconders. He also got the place of the occurrence photographed taking prints as Ext. 7/1 to 7/10 on 14.10.1981. All these facts were proved by the Investigating Officer PW-7 at trial. Dr. T.N. Mathur PW-1 was posted as Medical Officer at District Hospital, Muzaffarnagar, on 14.10.1981. He performed post mortem examination on the dead body of Ram Kumar at 5:10 p.m. on that date. According to him, the deceased was about 40 years old and about quarter of a day had passed since his death. The body was of average built and rigor mortis was present in the neck and all the limbs. He found the following ante mortem injuries on the body of the deceased: (i) Gun shot wound of entry 1/2 '' x 1/2 '' x through and through wound of exit on the outer part of right eye brow. No blackening and tattooing was present. Margins were lacerated and inverted. Three metallic pellets were recovered from right side brain. There was laceration of right eye ball. (ii) Gun shot wound of exit 3/4'' x 3/4'' x communicating with injury no.1 on the right side back of head, Margins lacerated and everted. (iii) Gun shot wound of entry 1/2 '' x 1/2 '' x through and through wound of exit on the right side back of chest, just lateral to mid line, 13'' below base and back of neck. Margins lacerated and inverted. No Blackening and tattooing present around the wound. (iv) Gun shot wound of entry 1/2 '' x 1/2 '' x through and through wound of exit on the left side back of chest middle part, 3'' lateral to mid line. Margins lacerated and inverted. Blackening and tattooing not present. (v) Gun shot wound of exit 3/4'' x 3/4'' x communicating with injury no.3 on the right side front of chest 1 ¾ '' below right nipple. Margins lacerated and everted. (vi) Gun shot wound of exit 3/4'' x 3/4'' x communicating with injury no.4 on the left side front of chest, 1'' medial to left nipple. Margins lacerated and everted. (vii) Gun shot wound of entry 3/4'' x 1/2'' x muscle deep on the outer side, left side chest lower part. Bullet recovered from the left side front of chest wall at 4'' medial from the wound. Margins lacerated and inverted. Blackening and tattooing not present. Direction was forward and medially. (viii) Gun shot wound of entry 3/4'' x 3/4'' x muscle deep on the right side back lower part. Illiac crest 5'' lateral to mid line. Four metallic pellets and one wadding recovered from the wound. Blackening present. Margins lacerated and inverted. On internal examination, he found the frontal, right parietal and occipital bones fractured. The membrances of the brain were lacerated beneath the injury. Right lobe of the brain was heavily lacerated. There was a fracture of the right and internal and posterior cranial fossa. There was a fracture of right 6th and left 5th ribs. The pleura was lacerated underneath the injury and there was about one and half pound blood present in the pleural cavity. Right lobe of the lung was lacerated through and through and the left lobe of the lung was also lacerated through and through. The membrances covering heart were lacerated and the right ventricle of the heart was lacerated through and through. The stomach, small intestine, large intestines and rectum were empty. In his opinion, the death was caused due to shock and haemorrhage as a result of ante mortem injuries, which could have been caused the same day at about 1:00 p.m. The doctor proved his report as Ext. Ka-1.
(3.) AFTER submission of the charge sheet against the appellant Anis in the Court of the Chief Judicial Magistrate, Muzaffarnagar, the case was committed to the Court of Session for trial which was registered as Session Trial No.538 of 1981. Thereafter the trial proceeded in the Court of Session. The appellant was charged for offence punishable under Section 302 read with Section 34 IPC and the same was read over and explained to the appellant who pleaded not guilty and claimed to be tried. In order to prove charge levelled against the appellant, the prosecution examined seven witnesses. Dr. T.N. Mathur PW-1 was examined to prove post mortem report Ext. Ka-1 of the deceased Ram Kumar. Fateh Chand first informant, father of the deceased was examined by the prosecution to prove the written report Ext. Ka-2. Pooran Singh PW-3 who was accompanying the deceased at the time of the incident on the rickshaw and Shobha Ram PW-4 who was pulling the same rickshaw were also examined to prove the incident. Constable Ghanshyam Singh PW-5 was examined to verify that the dead body in a sealed condition was handed over to him on 14.10.1981 which he along with Constable Nathu Singh took to the mortuary for post mortem examination where the same was identified before the doctor and the seals of that cloth by which the dead body was wrapped were not allowed to be touched by any person. The prosecution also examined Head Constable Brahma Singh PW-6 who proved Chik report Ext. Ka-4 and G.D. entry Ext. Ka-5 at trial. The Investigating Officer S.I. Todi Singh PW-7 was also examined by the prosecution to prove inquest report prepared during investigation and the papers prepared therewith. In this case, Fateh Chand PW-2, Pooran Singh PW-3 and Shobha Ram PW- 4 were examined by the prosecution as the eyewitnesses. ;