SURENDRA KUMAR,J. - (1.) THIS is a criminal appeal, filed under Section 374(2) of the Code of Criminal Procedure 1973, by accused Prem Chandra, son of Ram Suhawan, resident of village Dewauapur, H/o Sawant, Police Station Khaga, District Fatehpur, challenging his conviction and sentence under Section 302 I.P.C. read with Section 34 I.P.C. and Section 307 I.P.C. read with Section 34 I.P.C., relating to Crime No. 208 of 1980, Police Station Khaga, District Fatehpur, recorded by the IInd Additional Sessions Judge, Fatehpur, in Sessions Trial No. 16 of 1981-State Vs. Prem Chandra, vide impugned judgment and order dated 30.4.1982, whereby the appellant Prem Chandra has been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced to imprisonment for life thereunder. He has been further convicted under Section 307 I.P.C. read with Section 34 I.P.C. and sentenced to seven years Rigorous Imprisonment. Both the sentences were directed to run concurrently.
(2.) THE accused Prem Chandra was tried by the Sessions Court for committing murders of his own uncle Ram Kumar aged about 34 years (real brother of his own father) and Sughar aged about 6 years, son of Ram Kumar (his real cousin brother) and for inflicting serious injuries to Smt. Sundari, wife of Ram Kumar, (aunt of the accused) by inflicting blows with a Gandasa (a heavy sharp edged cutting weapon) in the mid night of 10/11.9.1980 when both the deceased persons and injured lady were sleeping in the courtyard of their house. The facts of the prosecution case, briefly stated, are that Ram Suhawan and Ram Kumar (deceased) were real brothers being sons of Sri Raj Aheer. The deceased Ram Kumar was younger brother of Ram Suhawan and deceased Sughar, a boy aged about six years, was son of deceased Ram Kumar. Smt. Sundari (injured) PW-1 is the wife of deceased Ram Kumar and real aunt (Chachi) of the accused Prem Chandra. The mother of the accused Prem Chandra had already died. Ram Suhawan was not satisfied with the habits of his son accused Prem Chandra and he had separated the accused from him, giving him two bighas of land and a portion of dwelling house to the accused. The accused Prem Chandra used to quarrel with his uncle (Chacha) deceased Ram Kumar, demanding his full share in the agricultural land of his father Ram Suhawan. Since Ram Suhawan was quite unhappy with the bad activities of his son Prem Chandra, Ram Suhawan used to live and take meal with the family of the deceased brother Ram Kumar. Since Ram Suhawan had given the land of his share to his deceased brother Ram Kumar, the accused had a grudge with his own father and his uncle Ram Kumar. About 3-4 months prior to this incident of double murders, the deceased Ram Kumar, in the Hindi month of Jeth, had cut a Acacia (Babool) tree when the accused had a quarrel with him and since then the accused was on the look out to murder his uncle Ram Kumar but on the intervention of the villagers, the accused could not do anything at that time. In the year of the incident, a portion of the house and walls of the house of the accused and deceased Ram Kumar had fallen in the rainy season. About 3-4 days prior to present occurrence, when the deceased Ram Kumar was repairing the wall of his portion, then the accused objected, saying that unless partition was done, he would not let Ram Kumar raise the said wall. Ram Kumar told the accused that he was raising wall of his portion. The accused again quarrelled with him and threatened that he would wipe out his entire family. In the night of the occurrence namely, 10/11.9.1980, the deceased Ram Kumar and his son Sughar were sleeping on one cot and Smt. Sundari (injured) PW-1, wife of Ram Kumar and her daughter Km. Siyakali PW-4, were sleeping on the other cot in the courtyard of their house. Around mid night, the accused Prem Chandra armed with a Gandasa and co-accused Sukhai Pasi also armed with Gandasa, assaulted Ram Kumar and his son Sughar with their respective Gandasas when the third accused Bhuluwa overpowered the deceased Ram Kumar. A Dibiya was burning in the courtyard. Dhanraj PW-6, brother of Smt. Sundari, was sleeping outside the house at the time of the incident. Smt. Sundari and her daughter Km. Siyakali got up on hearing some commotion and seeing the incident, they raised alarm and noise when the accused Prem Chandra and Sukhai Pasi started attacking Smt. Sundari with Gandasas and as a result of attack, Smt. Sundari sustained injuries. Km. Siyakali, a girl aged about 10 years at that time, in order to save her life, ran outside the house. The witnesses Mewa Lal PW-2, Mahesh, Thakur Deen PW-3 rushed to the scene of the incident and challenged the accused persons/assailants, who ran away. As a result of assault by the accused, Ram Kumar and Sughar died at the spot. Smt. Sundari PW-1 went to the police station Khaga to lodge the F.I.R. of the incident and on 11.9.1980 at 8.00 A.M. she lodged verbal report. Chik F.I.R. Ext. Ka-1 was scribed by Head Constable Sukhpal Singh PW-9, who registered the case in G.D. at serial No. 11 (Ext. Ka-28). The investigation of the case was entrusted to S.I. Sri Lal Singh Chandel PW-7 in whose presence the case was registered at the police station.
(3.) S .I. Lal Singh Chandel recorded the statement of Smt. Sundari PW-1 and Head Constable Sukhpal Singh PW-9 at the police station itself. Smt. Sundari was sent for medical examination of her injuries to Primary Health Centre, Khaga where Dr. Dinesh Chandra Rai PW-8 examined her injuries on 11.9.1980 at 9.10 A.M. Dr. Rai prepared her injury report, Ext. Ka-26, and found the following injuries on her person:- (1) Incised wound 11 cm. x 1 cm. x full neck, right cheek, 4cm. upper lip, sharp edged, bleeding from effected part. Medium size artery legated. Injury kept under observation. (2) Incised wound 10 cm. x 2 cm., tailing towards right side neck, gaping 1 cm. x 1/2 cm. Injury kept under observation. Clotting present. (3) Incised wound 5 cm. x 1 cm. on right lower part of cheek, extended from lower lip to the border of neck, mandible bone deep. Injury kept under observation. (4) Incised wound 2 cm. x 1/2 cm. on left side of lower lip, superficial. (5) Incised wound 1 cm. x 1/2 cm. on lower part of middle of chin. (6) Incised wound 14 cm. x 6 cm. x bone deep, right elbow joint. Bleeding from effected part of bone on elbow joint on lateral side, extended towards the elbow. Injury kept under observation. (7) Incised wound 8 cm. x 1/2 cm., right forearm, 6 cm. above from wrist joint. (8) Incised wound 10 cm. x 4 cm. right forearm x bone deep, extended, right forearm to right hand. Injury kept under observation. (9) Incised wound 8 cm. x 1/2 cm. on left dorsum of hand. (10) Incised wound on little finger 1 cm. x 1/4 cm. on same side. 4 (11) Incised wound 5 cm. x 1/2 cm. on left index finger to middle finger. (12) Incised wound 1 1/2 cm. x 1/2 cm. on right index finger. (13) Incised wound 8 cm. x 1/4 cm. x 5 cm. deep on left side of upper chest, 7 cm. above from left nipple. (14) Abrasion 6 cm. x 5 cm., right upper shoulder. Dr. Dinesh Chandra Rai found some injuries as grievous and advised X-ray of the effected parts for medico legal purposes. The injuries were half day old and all the injuries were caused by sharp edged cutting weapon. Dr. Rai referred the injured to the District Hospital, Fatehpur. According to the evidence of Dr. Rai, the injuries caused to her could be caused in the night between 10/11.9.1980 by Gandasa, a sharp edged cutting weapon (Ext. 1). ;