- (1.) CHALLENGE in this appeal by the two appellants Gorey Lal and Narain Joo are to their conviction u/S 394 and 304/34 I.P.C., and implanted sentence of ten years R.I. for each of the two offences recorded by Session's Judge, Lalitpur in S.T. No.63 of 1981, State Vs. Gorey & others vide impugned judgement and order dated 26.8.1981.Both the sentences were directed to run concurrently, by the trial Judge. Third accused Govind Singh, who was also tried along with the appellants, was acquitted by the impugned judgement. Hence, this appeal by two convicted accused.
(2.) STATED briefly, prosecution allegations against the appellants, as was sketched in the written report, Exhibit Ka-8, dictated by informant Gore Lal P.W.4, and scribed by Deep Chandra, were that in mid night between 22nd /23rd January,1981, a robbery was committed in the house of informant by three or four robbers, where informant's wife Smt. Nanhi Bahu P.W.6 and his two daughters Smt. Parwati P.W.5 and Smt. Bhana (deceased) were sleeping. Robbers belaboured these ladies and forcible took off their ornaments- silver anklets (Pajeb), and silver bangles. While, her silver anklets (Pajeb) of another leg was being taken off, Smt. Bhana raised hue and cry, and consequently one of the miscreants gave her a spade blow, causing an incised wound on her head. The incident was witnessed in the light of lantern burning at the place of the incident and house inmates could identify culprits. F.I.R., Ext. Ka 5, about the incident, was scribed by Deep Chandra at the dictation of the informant Gore Lal P.W.4, who then covered a distance of four kms to PS Mehroni, district Lalitpur, where following morning at 10.20 a.m. he lodged it against unnamed accused as crime no. 13/81 , u/s 394 IPC. Constable Kailash Singh registered the F.I.R., prepared Chik F.I.R., Exhibit Ka-8 and G.D. entry, Exhibit Ka-9. Smt. Bhana was medically examined by Doctor S.K. Jain P.W.8 on 23.1.1981 at 11.30 a.m., who was brought to him by Constable Raza Mohammad, C.P. No.188 of police station Mehroni and doctor had prepared her medical examination report, Exhibit Ka-7, which is reproduced herein below:- Exhibit Ka-7 Examined Smt. Bhana D/o Shri Gore Lal aged 16 yrs. R/o village Agan P/S Maharoni Distt. Lalitpur. B/B Shri Raja Mohammad C.P.188 P/S Maharoni Distt. Lalitpur on 23.1.81 at 11.30 A.M. M.I. Black mole at the chin 2 cm below the lower lip. Injuries:- (1) Incised wound of the size of 3 cm x .5 cm x Bone deep at Lt. side of the forehead. 2-1/2 cm above the Lt. eyebrow. Margins are sharp cut injury is kept under observation. Adv. X-ray of Forehead. Opinion:- Injury is caused by some sharp object. Duration is within a day. Nature of the injury will be decided after getting the X-ray report. In the estimation of the doctor, her injury was caused by some sharp edged weapon and could have been sustained at or about the time of the incident. Doctor had advised her for X-ray of her injuries. Har Dayal Verma, S.I.,P.W.9, commenced investigation into the crime, recorded investigatory statements of the informant, his wife and daughters i.e. Gore Lal P.W.4, Smt. Nanhi Bhau P.W.6, Smt. Bhana, under Section 161 Cr.P.C. statement of Smt. Bhhana, as a result of her demise on 29.1.81, was admitted in evidence as Ext. ka 10, as her dying declaration. Conducting spot inspection, I.O. prepared site plant Ext. Ka-11. Inquest on the cadaver of the deceased was done, vide Exhibit Ka-12, by Har Dayal Verma I.O. P.W.9. Other relevant documents of challan lash, photo lash etc.,vide Exhibit Ka-13 to Ka-15, were also prepared simultaneously. Sealing the dead body, it was handed over to Constable Yogendra Singh and Constable Devi Dayal to be carried to mortuary for autopsy purposes, which was performed on 30.1.1981 by Dr. Janki Prasad, M.O. I/C District Hospital, Lalitpur. Deceased was detected to be 16 years of age and two days had lapsed since her death. Doctor had noted that she was having average built body and rigor mortis was present on her upper limbs. There was a depressed fracture of her left frontal bone 2cmx 1 ? cm and death was due to traumatic brain haemorrhage caused by sustained physical injury. Following injury on the corpse was detected by the doctor vide post mortem examination report Ext. Ka 2:- "Septic wound 3 ? cm x ? cm x bone deep lt. forehead, 3 ? cm above lt. eye brow placed obliquely." In doctor's opinion deceased could have sustained fatal injury at or about the time of the incident. Accused were arrested by Ram Magan Singh, S.O. P.W.7 on 19/20.2.1981, while making preparation to commit dacoity and during their interrogation, their complicity in the present crime was surfaced and hence they were put under veil and were brought to the police station and were lodged in lock-up vide G.D. No.4 at 5.10 a.m. vide Exhibit Ka-3.Same day at 9.30 a.m., under veil, they were taken out from police lock-up and were dispatched to jail through Constable Bachan Singh, Constable Mohammad Salim and Constable Shiv Shanker Singh, vide Exhibit Ka-4. It had been evidenced by HC Guru Prasad,P.W.3, that so long as the culprits were at the police station, they were under veil and nobody was allowed to meet or spot them. Ram Magan Singh, P.W.7 during course of investigation had given a report for conducting test identification parade of the accused, which was held by Executive Magistrate Madhukar Dwivedi, P.W.1 in District Jail, Lalitpur on 28.2.81, who had proved his identification memo Exhibit Ka-1, the perusal of which indicates that Smt. Parwati P.W.5 had correctly identified all the three arrested accused Gorey Lal, Narain Joo and Govind Singh, whereas Smt. Nanhi Bahu P.W.6 could identify only two appellants and committed mistake in identifying Govind Singh. After concluding investigation Ram Magan Singh, I.O. had charge-sheeted the accused vide Exhibit Ka-6. Session's Judge, Lalitpur, charged all the accused for offences u/s 394 and 304 IPC on 26.5.1981, which charges were denied by them and hence to establish it prosecution commenced. To establish accused guilt and proved the charges prosecution examined in all ten witnesses, out of whom informant Gore Lal P.W.4, his daughter Smt. Parwati P.W.5, wife Smt. Nanhi Bahu P.W.6 were examined as fact witnesses about the incident. Other formal witnesses included Executive Magistrate Madhukar Dwivedi P.W.1, Dr. Janki Prasad P.W.2,HC Guru Prasad P.W.3, Ram Magan Singh P.W.7, Dr. S.K. Jain P.W.8, Har Dayal Verma, I.O. P.W.9 and Mohd. Salim P.W.10. In their statements under Section 313 Cr.P.C. accused denied incriminating circumstances put to them and claimed their false implication and also pleaded defence that they were shown to the witnesses at the police station. For the purposes of establishing that the accused were very well known to the prosecution witnesses, they examined seven defence witnesses Smt. Badi Duliya D.W.1, Parwat Singh D.W.2, Devi Singh D.W.3, M. Izhzr Ansari D.W.4, Bhairo Prasad D.W.5, Nasir Ahmad D.W.6 and Khoob Singh D.W.7.
(3.) SESSION's Judge Lalitpur, vide impugned judgement and order, held that as against accused Govind Singh there was no credible evidence about his participation in the crime and also because of single identification against him, his guilt was not established satisfactorily, and consequently, acquitted him of both the charges. For the two appellants, it however, arrived at the conclusion that their guilt was anointed beyond doubt and in their respect prosecution story was credible, confidence inspiring and witnesses had deposed assuring statements and hence it convicted both the appellants for both the offences u/s 394 and 304 IPC and sentenced them to ten years RI for each of those offences, which conviction and sentence is under challenge in the instant appeal. In the backdrop of aforesaid facts, when the appeal was called out for hearing none appeared for the appellants to argue their appeals and therefore, Sri Bhupendra Pandey was appointed as amicus curiae to assist the Court. Later on Sri A.N. Mishra, advocate also argued the appeal for the appellants.;