Hon'ble Ashok Srivastava, J. - (1.) THIS criminal appeal is directed against the judgment and order dated 23.3.1982 passed by II Additional Sessions Judge, Non Metropolitan Area, Kanpur in S.T./ No. 217 of 1980. From perusal of the F.I.R. it is evident that seven persons are named in it as accused who are Debi Prasad, Jagdamba, Suraj Prasad, Kunwar Lal, Gur Prasad, Ram Autar and Gajraj @ Hajji. All of them were chargesheeted and faced trial before the learned lower court. The learned lower court convicted Kunwar Lal, Debi Prasad, Jagdamba, Ram Autar and Gaj Raj alias Hajji whereas it gave benefit of doubt to Suraj Prasad and Gur Prasad. These two accused persons were acquitted. The learned lower court sentenced all the convicted accused under Section 302/149 I.P.C. for life imprisonment and one year's R.I. under Section 148 I.P.C. The appellantaccused Kunwar Lal was further sentenced to 2 years' R.I. under Section 379 I.P.C. No fine was imposed and all the substantive sentences of imprisonment were directed to run concurrently. All the five convicted accused filed the present appeal. During the pendency of the appeal, the appellant Kunwar Lal and Devi Prasad have died and the appeal stood abated against them. Thus, the present appeal, pertains only to surviving appellants namely Jagdamba, Ram Autar and Gajraj @ Hajji.
(2.) THE alleged incident had taken place on 16.3.1980 at about 4.00 P.M. within the village estate of Selhupur, P.S. Bhognipur, Kanpur. THE informant of this case is one Suresh Chandra who is the brother of the deceased Ramesh Chandra, who was killed in this case. THE F.I.R. was lodged with the police of P.S. Bhognipur the same evening at about 6.35 P.M. On the fateful day, the deceased alongwith his brother Suresh Chandra, wife Smt. Padma Devi and his minor daughter Km. Sunita was harvesting his Arahar {a kind of pulse(Cajamus indicus)} crop. One Baburam, a relative of the family of the deceased, came there as he had to invite the deceased for the Tilak ceremony of his daughter and further to request him that the deceased should bring alongwith him his tractor to facilitate transportation of the relatives and guests of Baburam on the occasion. After arrival of Baburam, the deceased and his family members stopped cutting the Arahar crop and proceeded towards their house to offer tea and snacks to him. When they reached near the threshing yard (Khalihan) of Chhotey and Gilli Yadav, all the appellants who were hiding themselves behind the tied and piled up bundles of harvested Arahar came out from their hiding. Kunwar Lal exhorted by calling upon the coaccused to kill the deceased and simultaneously fired upon him. THE fire hit the deceased who fell down on the ground. THEreafter, all the accused persons fired upon him. THE informant, Smt. Padma, wife of the deceased, Km. Sunita, daughter of the deceased and Baburam cried for help. Hearing the sound of fire shots and the cries of the informant and his family members, many people of the village ran towards the spot including Ram Ratan, Man Singh, Virendra, Vijay Narayan and Vijay Bahadur. Seeing so many persons running towards them, all the accused persons ran away from the place of occurrence. Since there was an apprehension in the mind of the informant that the accused persons may carry away with them the dead body of the deceased, the dead body was taken to the residence of the deceased by his family members. THEreafter, the informant went to the police station Bhognipur and filed a written complaint there on the basis of which an F.I.R. was lodged. THE I.O. examined the informant at the police station and thereafter he started towards the place of occurrence. By that time it was 8.30 in the night and, therefore the I.O. for lack of proper lighting arrangement postponed the preparation of inquest till the next morning. On 17.3.1980, in the morning, the inquest formalities were completed and the dead body was sent for postmortem. It is the case of the prosecution that the constable who carried the dead body to the post-mortem house could reach the district headquarter quite late and the post-mortem could not be conducted on that date. On 18.3.1980 the post-mortem was conducted by Dr. Tej Bahadur Singh (PW-6), who prepared the post-mortem report. THE matter was investigated by S.H.O. Hridayanand Pandey (PW-4) who examined the witnesses including PW-1 Suresh Chandra, the informant, PW-3 Smt. Padma Devi, Babu Ram (CW-1)and Ram Ratan, Man Singh, Virendra, Vijay Narayan and Surendra Nath ( all the witnesses of facts but not examined). THE I.O. had taken blood stained and plain earth from the place of the incident and sent the same for their serological examination. He also took into his custody the clothes etc. worn by the deceased at the time of his death and sent the same for serological test and obtained reports thereof. THE blood soaked earth and the apparels were found to be stained with human blood having "B" blood group. After concluding his investigation the I.O. submitted a chargesheet in the court of learned Magistrate and the case was committed in due course and was decided by the learned Additional Sessions Judge, as mentioned above. All the accused-appellants were charged for offences punishable under Sections 148, 302, 149 I.P.C. and an additional charge under Section 379 I.P.C. was framed against appellant Kunwar Lal. The prosecution examined PW-1 Suresh Chandra, PW-2 Km. Suneeta, PW-3 Smt. Padma, PW-4 Hridaya Nand Pandey, PW-5 CP 3135 Raja Ram and PW- 6 Dr. T.B. Singh. PWs- 1, 2 and 3 are witnesses of facts. PW-4 is the Investigating Officer. PW-5 is the police constable who had taken the dead body for post-mortem and PW-6 is Dr. T.B. Singh who conducted the postmortem. Baburam has been examined by the court as CW-1. The prosecution had produced many documents including the written report, F.I.R., chargesheet, inquest report and post-mortem report. After examination of the accused persons under Section 313 Cr.P.C. the appellants were afforded an opportunity to adduce their evidence. Five defence witnesses namely Dr. J. Bajpai (DW-1), Surendra Singh (DW- 2), an x-ray technician, Dr. R.B. Misra (DW-3), R.C. Srivastava(DW-4) and Sultan Niazi (DW-5) were examined from the side of the appellants. We have heard learned counsel for the parties and learned A.G.A. According to the prosecution, a deep rooted enmity subsisted between the families of the deceased and the appellants. The motive of murder is almost admitted. The facts show that a few family members from the side of the appellants were done to death in which the deceased and the informant were also named as accused persons. Further, one Dinesh Chandra, younger brother of the informant was also murdered in which six out of the present seven accused were amongst the named accused. In that case the deceased RameshChandra was the informant. Further the deceased Ramesh Chandra was also a witness in a case under Section 307 I.P.C. against the accused persons Kunwar Lal, Jagdamba Prasad, Suraj Prasad and Ram Autar. Murder and counter murders had taken place from both the sides, therefore, the motive, in the instant case, as alleged by the informant is proved beyond doubt. PW-2 Km. Sunita was not examined by the I.O. of the case under Section 161 Cr.P.C. which has been admitted by PW-4 who is the I.O. of the case.
(3.) NATURALLY no copy of such statement was in existence when the appellants were supplied police papers under Section 207 Cr.P.C. The learned lower court has relied upon the statement of of this witness recorded as PW-2 under Section 231 Cr.P.C. We are of the view that it was not proper on the part of the learned lower court because when the examination-in-chief of this witness was led before the learned trial court it came before the accused persons for the first time and that too during the course of trial, therefore, in our opinion, the statement of PW-2 Km. Sunita cannot be read into evidence against the appellants and therefore we discard the entire evidence of this witness. Now we have been left with three witnesses of facts namely PW-1 Suresh Chandra, PW-3 Smt. Padma and CW-1 Baburam. The statement of Baburam was recorded under Section 161 Cr.P.C. by the I.O. of the case. Baburam was not examination as a prosecution witness. The facts and the circumstances show that he was present at the spot when the deceased was killed and, therefore, his evidence was necessary for the learned trial court to arrive at the just decision of the case. Baburam has been named in the F.I.R. as a witness and it has been specifically mentioned in the statements of PWs- 1 and 3 that Baburam was present at the place of occurrence throughout the incident and he had seen it. Therefore, recording of his evidence as court witness by the learned lower court was fully justified and we accord our approval to this action of the learned trial judge. In the case the post-mortem was conducted by PW-6 who found as many as 8 injuries on the dead body of the deceased which are as follows : i. Gun shot wound of entry 2 cm in diameter x cavity deep, left side at chest, 9 cm below and outer to left nipple. Blackening and tattooing present. ii. Entry wound (Gun shot) 3 cm x 2 cm x abdominal cavity left to vertebral column 2 cm above the posterior iIiac spine. Blackening andtattooing present. iii.Gun shot wound of entry 2 cm in diameter on back of chest right side 5 cm below the right anterior angle of scapula. iv. Gun shot wound of entry 1? cm x 1? cm on root and back of neck, at the level of sixth cervical vertebra. Blackening and tattooing present. v. Gun shot wound of exit 1 cm in diameter left side 5 cm below the left angel (interior) of scapula. vi. Gun shot wound of exit 1 cm diameter 3 cm to the right of back bone over the lumber region. vii.Six wounds of exit each 1 cm in diameter spread over an area of 15 cm x 12 cm on the upper and outer part of right side of chest. viii.Two wounds of re-entry on the inner and upper part of right arm each 1 cm in diameter. On an internal examination the medical officer found that the pleura and heart of the deceased were completely ruptured. The lungs were lacerated and death was caused due to shock and hemorrhage as a result of ante-mortem injuries and injuries were sufficient, in ordinary course, to cause death due to their nature and seat. PW-1 Suresh Chandra, PW-3 Smt. Padma Devi and CW-1 Baburam have supported the prosecution story regarding the time and place of occurrence. They claimed to have seen the occurrence as they were accompanying the deceased when they were going back home from the agriculture field where they were harvesting the Arahar crop. ;