SURENDRA SINGH,J - (1.) CHALLENGE in this appeal is the judgement and order dated 23.10.2003 passed by Additional District and Sessions Judge (Fast Track Court No.1), Pilibhit in S.T. No. 553 of 2002 (State Vs. Mathura Prasad & others) convicting and sentencing the appellants under Section 302 read with section 34 IPC for the life imprisonment with the fine of Rs.10,000/- to each of the appellants and in default of payment of fine further one year's rigorous imprisonment and under Section 307 read with section 34 IPC for ten years' R.I. with the fine of Rs.5000/- to each of the appellants and in default of payment of fine further six months additional imprisonment with further direction that both the sentences shall run concurrently. Since both these appeals are connected to each other, hence they are being decided together with common judgement. Abbreviated back ground facts are that the deceased Haripal Verma, husband of the informant Smt. Krishna Devi, was the sitting Pradhan of Village Aamkheda, police station Barkheda, District Pilibhit. On 14.12.2001 at about 4.30 pm he went for marketing to Adhkata along with Ram Kumar son of Bihari Lal (P.W-2) and Heera Lal son of Bholey Ram (P.W-3), both resident of same village Aamkheda, on a motorcycle. In the evening at about 7.30 pm on return for their village, when they reached near the field of Chhatrapal son of Roshan Lal, on the eastern side of the road accused appellant no.1 Mathura Prasad armed with banka, Jagdish Prasad, appellant no.2 with countrymade pistol and one, unknown person having armed with lathi were seen standing, in the light of motorcycle. It was alleged that motorcycle was driven by Heera Lal (P.W-3), Ram Kumar (P.W-2) was pillion rider while the deceased Haripal Verma, Pradhan was seated between them. As they reached near to them unknown assailant gave a lathi blow to Heera Lal, on account of which the motorcycle got disbalanced and had fallen in a ditch in the eastern side of the road. All the accused persons thereafter caught hold the deceased and started beating with lathi and banka. Both, Ram Kumar and the deceased, in order to save their lives, ran towards the eastern side. However, the deceased could not reach beyond the field of Nokhey Lal and he was surrounded by the assailants and was thereafter assassinated by firearm and banka. It was further alleged that at the same time Heera Lal son of Kadhey Ram along with Chhatrapal of the village have also arrived at the place of incident in another motorcycle and they have also witnessed the accused appellants lambasting the deceased in the source of light of the motorcycle. Thereafter Heera Lal (injured) went to the house of the deceased and informed his wife Smt. Krishna Devi about the incident. On being informed, informant Smt. Krishna Devi (P.W-1) went to the police station Barkheda along with Heera Lal (P.W-3) after covering a distance of four and half kilometres where she lodged written FIR (Ex Ka-1) on the same day at about 9.45 pm, which she got scribed through one, Bhagwan Das.
(2.) HEAD Moharrir, Shyam Lal (P.W-6) registered the written report at crime no.430 of 2001, under Sections 302/307 IPC, prepared the chik FIR (Ex Ka-2) and made relevant entry in G.D. The investigation was entrusted to S.O., P.L. Vishwakarma (P.W-9), who recorded the statement of the witnesses under Section 161 Cr.P.C., copied chik FIR and G.D. entry and thereafter reaching on the spot, performed inquest on the dead body and got inquest memo (Ex Ka-22) and other relevant documents prepared. A chiththi majrubi was prepared and the injured, Heera Lal was sent to PHC, Barkheda, Pilibhit where he was medically examined. The dead body was dispatched for autopsy purposes. Thereafter I.O. conducted spot inspection and prepared site plan (Ex Ka-10), collected blood stained earth and plain earth and recovered an empty cartridge (Ex Ka-11 and Ex Ka-12). On 16.12.2001 I.O. arrested both the appellants, Mathura Prasad and Jagdish and on their pointing out a countrymade pistol and a banka (weapons of assault) were recovered, which were exhibited as Ex Ka-13 on the day of their arrest. However, another co-accused Om Prakash was arrested on 25.12.2001 and from his pointing out a danda (Ex Ka-15) was recovered. On the basis of the alleged recovery of the weapons of assault, separate chik FIR(Ex Ka-7) was registered against appellants, Mathura Prasad and Jagdish under Section 25 Arms Act vide crime nos.431 of 2001 and 432 of 2001 respectively on the next day at about 6.10 pm and G.D. (Ex Ka-8) was prepared. S.I. Genda Lal Pawar, P.W-12 investigated the crime under Section 25 Arms Act and submitted the charge sheet (Ex Ka-30 and Ex Ka-31) against the appellants. Autopsy on the dead body of the deceased (Ex Ka-9) was performed on 15.12.2001 at 2.45 pm by Dr. Udai Veer Singh (P.W-10), Medical Officer, District Hospital Pilibhit. In the estimation of the Doctor, the deceased was aged about 35 years and half to one day had lapsed since his death. He was average built and rigor mortis was present on the upper and lower limbs. Following injuries were detected in the body of the deceased by P.W-10: i. Incised wound 16cm x 3cm x bone cut brain matter coming out on the left back of skull; ii. Incised wound 6cm x 1cm x Bone cut on left eye brow; iii. Incised wound 5cm x 0.5cm x Bone cut across the nose; iv. Incised wound 9cm x 2cm x cavity deep on the left angle of mouth to � angle of mouth tooth; v. Incised wound 4cm x 0.5 cm x cavity deep on left moustache; vi. Incised wound 7cm x 0.5 cm x bone deep on right side of face 2cm on front of right ear; vii.Incised wound 3cm x 0.5 cm x muscle deep on right side of skull 7cm above right ear; viii.Incised wound 3cm x 3cm x bone deep on the back of skull; ix. Incised wound 5cm x 1cm x bone deep on the mid aspect of the left forearm joint just above wrist joint; x. Incised wound 6cm x 0.5 cm x bone deep over the back bone at level of T-10; xi. Abrasions two in numbers both measuring between 12 cm x 0.5 cm over the back bone from T1 to T7. xii.Gun shot wound in the area of 4cm x 3cm x cavity deep on the back of right side of chest at level T9. Blackening and tattooing present. xiii.Gun shot wound 2cm x 1cm x cavity deep on the left side of chest 12cm below left nipple. Blackening and tattooing present. On deeper dissection liver and stomach were found punctured and spleen lacerated and 9th rib fractured. Two pieces of bullet are recovered one from lever and one from spleen area. On internal examination autopsy doctor found 9th rib of chest of the deceased fractured under gun shot wound. Stomach of the deceased contained 200 gms. of semi churned food grey colour, small intestine contained fluid and gas. Large intestine contained faecal and gas. In the estimation of the doctor cause of death was shock and haemorrhage due to ante mortem injuries. Injured Heera Lal (P.W-3) son of Bholey Ram was medically examined on 15.12.2001 at about 2.40 am by Dr. R.S. Saran (PW-7) who prepared medical report (Ex Ka-6). On his person following injuries were detected by the doctor: i. Incised wound 7cm x 0.5 cm x Bone deep on the left side head 4 cm above from left eyebrow. Bleeding present on cleaning the wound; ii. Contusion with swelling 3cm x 2cm on the back of left hand 3.5 cm below from left wrist. Colour red. The injuries were kept under observation and X-ray was advised. Injury no.1 was caused by sharp edged weapon and injury no.2 by hard blunt object and the duration was fresh. The police investigated the crime and submitted the charge sheet (Ex Ka-18) against appellants under Sections 302/307 IPC. The case was committed to the sessions' court for trial. It was registered as S.T. No.553 of 2002. Additional Sessions Judge (Fast Track Court No.1), Pilibhit charged them with offences under Sections 302 read with Section 34 IPC and 307 read with Section 34 IPC on 29.10.2002. Court had also framed charges under Section 25 Arms Act against appellant Mathura Prasad in S.T. No.554 of 2002 and against appellant no.2 Jagdish Prasad under Section 25 Arms Act in S.T. No.555 of 2002.
(3.) SINCE the appellants abjured the charges and claimed to be tried, hence their trial commenced. In order to establish guilt of the appellants, prosecution examined in all 12 witnesses during the course of trial. Out of whom, Smt. Krishna Devi (PW-1), informant, Ram Kumar (PW-2), Heera Lal son of Bholey Ram, injured (PW-3), Heera Lal son of Kadhey Ram (PW-4), Chhatrapal (PW-5) were witnesses of fact. Rest of witnesses Shyam Lal, Head Moharrir (PW-6), Dr. R.S. Saran (PW-7), Ramesh Chandra Mishra (PW-8), S.I. P.L. Vishwakarma, S.O. (PW-9), Dr. Uday Veer Singh (PW-10), Surendra Kumar (PW-11) and S.I. Genda Lal Pawar (PW-12) were the formal witnesses. In the deposition before the court P.W-1, informant narrated the same story, which was disclosed in her FIR (Ex Ka-1). She is not the eye witness of the incident. She had deposed whatever she was informed by P.W-2 and P.W-3 soon after the incident. She had deposed that her husband (deceased) was elected as village Pradhan two years' before and was sitting Pradhan on the date of incident. Appellant Mathura Prasad had also contested in the election and was defeated by the deceased by margin of single vote. Feeling aggrieved appellant Mathura Prasad had preferred election writ petition before this Hon'ble Court but he did not get any interim relief. This was the reason that accused appellant Mathura Prasad and his associates were having animosity with the deceased. She further testified that after the death of her husband Rampal son of Bhikhari Lal the brother of P.W-2 Ram Kumar became the officiating Pradhan of the village. It was further deposed that on the same day she got the written report scribed and she went to the police station along with Ram Kumar (P.W-2) and Heera Lal (P.W-3) where she got it registered. She has duly proved her written report (Ex Ka-1). In his deposition Ram Kumar (P.W-2) testified the incident. However, he was declared hostile by the prosecution. Although he supported the prosecution story with regard to the date, time and place of incident, motorcycle in which he was pillion rider and the genesis of the incident. He resiled from his earlier stand with regards to the identity of the accused. He denied to have accompanied Heera Lal (P.W-3) to the house of informant (P.W-1) and had informed her about the incident. He deposed in his cross-examination that in the light of motorcycle vicinity was illuminating and things were visible up to the distance of 30 to 40 paces. He further affirmed that there was hot exchange of words between the deceased and appellant no.1 Mathura Prasad at the time of counting of votes. He also admitted that appellant no.1 Mathura Prasad was one of the contestant in the election and he expressed his annoyance on acquaintance of his defeat by one vote.;