VINOD PRASAD,J. - (1.) THE two appellants, Govind Das @ Gudda A-1 and his son Jai Kishan A-2 have preferred these two connected appeals being aggrieved by the judgement and order dated 16.11.2002 passed by Additional Session's Judge, court no.2, Hamirpur in S.T. No.44 of 1997, State Vs. Govind @ Gudda and others, convicting both the appellants under Section 302/34 IPC for committing murder of two sibling brothers Loknath @ Lukkhi and Naval Kishore both sons of informant Mannu, P.W.1 and Shail Kumari, P.W.2. For the murder of Loknath @ Lukkhi, both the appellants have been sentenced to imprisonment for life with Rs. 20,000/- fine on each of them with further direction that in case the fine is realised, half of the amount out of it shall be paid as compensation to the daughter of Loknath @ Lukkhi deceased. For the murder of Naval Kishore appellant Govind Das @ Gudda A-1 has been sentenced to death whereas appellant Jai Kishan has been acquitted of the said charge. It is noted here that there was a third accused Sushila, daughter of the appellant Govind Das @ Gudda A-1, who was also tried along with the appellants but was acquitted by the impugned judgement and order of both the charges. Since Govind Das @ Gudda A-1, has been sentenced to death, learned trial Judge has sent Reference No.8 to this Court, vide his order dated 16.11.2002, for confirmation of his capital punishment.
(2.) ORE entering into the merits of the appeal, a brief resume of prosecution allegations, as was sketched in the written FIR, Ext. Ka-1, on the basis of which Chik FIR, Ext. Ka-5 was prepared and as was deposed in the trial by the two fact witnesses, informant Mannu P.W.1 and eyewitness Shail Kumari P.W.2, were that the informant is a resident of village Alra, P.S. Muskara, district Hamirpur along with his wife P.W.2 and younger son Naval Kishore (deceased no.2). Rest of his family abode in village Natarra, P.S. Charkhari, district Mahoba the village of informant's in-laws. For agricultural activities, informant, his wife and deceased Naval Kishore often used to visit village Alra and do the agriculture activities. Eight days prior to the present incident of double murder both the accused appellants had erected a terracotta boundary wall on the back side of informant's house in village Alra with the idea to grab his open land. Loknath @ Lukkhi first deceased and son of informant was married to one Pushpa Devi, who was in her family way and was to give birth to the child in near future and because she required nursing and precaution, Loknath @ Lukkhi, deceased no.1, had come to village Alra take her mother for caring his wife on 11.8.96. In the morning at 6 or 7 a.m. P.W.2 Shail Kumari informed Loknath @ Lukkhi, deceased no.1, regarding erection of the terracotta mud boundary by the appellants and because of that same day in the afternoon there was triadic verbal altercation in between the appellants and deceased no.1. Same day in the evening deceased no.1 was accompanying his mother to his resident village Natarra and when they reached Nahariya canal in Gahrauli hamlet in front of the field of Ram Gopal Lodhi and Ram Das, they were approached by the appellants, out of whom A-1 was armed with an axe and A-2 was armed with an spear. Spotting them and sensing danger deceased no.1 Loknath @ Lukkhi sprinted and crossed over Nahariya canal but was chased and surrounded in the field of Devki Nandan where both the appellants assaulted Loknath @ Lukkhi, to death by their respective weapons. P.W.2 witnessed the annihilation of his son and she returned back to his house where she narrated the murder to the informant Mannu P.W.1, who thereafter accompanied with P.W.2 and Naval Kishore, deceased no.2, proceeded for the spot of the murder. As soon as they reached near the pond outside the village, they came in contact with the appellants, who chased them for being annihilated and ultimately, Naval Kishore, an adolescent boy aged about 11 or 12 years, was also murdered by them and thereafter, accused murderers retreated from the incident scene. Informant left his wife P.W.2 near the corpse of his younger son Naval Kishore, deceased no.2, got his FIR, Ext. Ka-1 scribed in front of Badri's Shop in village Muskara and then measured a distance of 9 kilometres west to the police station Muskara and lodged his FIR at 11.30 p.m. the same day about the double murder, which was registered as Crime No.231 of 1996 under Section 302 IPC against the appellants. Constable Ghanshyam Sharma P.W.5 registered the crime, prepared Chik FIR Ext. Ka-5 and relevant GD entry no.26, Ext. Ka-6. Investigation into the crime was commenced by S.O. V.K. Singh, the same day, who was present at the police station when the FIR was registered. First of all, I.O. P.W.6 copied Chik FIR and GD entry and thereafter in a government jeep along with informant, constable and inquest papers proceeded for the spot after recording statement of P.W.5 at PS itself. At the spot I.O. inspected both the corpses but because of ensued night could not conduct the inquest on both the cadavers and therefore, I.O. stayed in the village in the premises of a primary school. At dawn first of all, I.O. P.W.6 conducted inquest on the cadaver of Naval Kishore and thereafter sealed the dead body and handed it over to Constables Narayan Singh and Ram Singh for carrying it to the mortuary for autopsy. P.W.6 has proved the inquest report as Ext. Ka.7 and other relevant papers of challan lash and photo lash as Ext. Ka-9. He has also prepared and proved the letter addressed to Medical Officer as Ext. Ka-10. From near the dead body of Naval Kishore, I.O. had collected the plain and blood stained earth and had prepared seizure memo, Ext. Ka-11. During the trial, P.W.6 has also proved the attires of deceased Naval Kishore as material Ext. 10 and 11 and the plain and blood stained earth as material Ext. 12 and 13. Subsequent to the inquest on the corpse of Naval Kishore, I.O. conducted inquest on the dead body of Loknath @ Lukkhi after appointing inquest witnesses and prepared his inquest memo, Ext. Ka 12. He has also prepared other relevant documents of photo lash, challan lash, Exts. Ka-13 and Ka-14, and letter to M.O. Ext. Ka-15. He has proved the attires of the first deceased Loknath @ Lukkhi as material Exts. 14, 15 and 16. Sealing the cadaver of Loknath @ Lukkhi, it was handed over to constables Narayan Singh and Ram Singh for being carried to the mortuary for autopsy. Blood stained and plain earth were also collected by the I.O. from near the dead body of Loknath @ Lukkhi by preparing seizure memo Ext. Ka-16. These plain and blood stained earths have been proved as material Exts. 17 and 18. After completing inquests I.O. recorded investigatory statements of informant and witnesses and thereafter, at the pointing out of P.W. 1 and P.W. 2, conducted spot inspection and prepared site plan map Ext. Ka-17, about the place of both the murders. Thereafter, I.O. recorded statement of Shail Kumari (P.W. 2). Subsequent thereto, I.O. searched for the murderer culprits but could not apprehend them. On 14.8.96, P.W. 6 copied postmortem examination reports of both the deceased in the case diary. Thereafter on many subsequent dates, I.O. only searched for the accused but could not arrest / apprehend them. On 22.8.96, I.O. filed application for issuing process of attachment under section 82-83 Cr.P.C. Subsequently, on 23.8.1996, he raided the house of the accused but they were still absconding. Subsequently I.O., got the drum beat etc. but the accused continued to abscond. However at last, the accused surrendered in Court on 2.9.96 and were dispatched to penitentiary. After obtaining permission from the Court, I.O. interrogated the accused, who made discloser statement and expressed desire to get the weapons of assault recovered and, therefore, I.O. brought them to their house from where, both the accused got the weapon of assault recovered. In that respect, recovery memo Ext. Ka-2 was prepared. The weapons of assault were also exhibited as material Exts. 1 to 4, which has been proved by P.W. 3, the recovery witness. Thereafter, I.O. prepared the site plan of the places of the recovery vide Ext. Ka-18. Subsequently, I.O. interrogated the autopsy doctor and recorded his statement and concluding investigation, charge sheeted all the three accused, the two appellants and acquitted accused Kumari Sushila of section 302 I.P.C. vide Ext. Ka-19. During investigation, I.O. had also dispatched the blood stained and plain earth, attires of the deceased and the weapons of assault for Serologist Examination, Agra whose report dated 18.10.96, vide Ext. Ka-21, is on the record.
(3.) TO complete chronology of factual matrix it is noted that autopsy on the cadaver of both the deceased, Loknath @ Lukkhi and Naval Kishore were performed by Dr. Mrigendra Rajput, PW4, on 12.8 96 at 4& 5.15 p.m. respectively vide their post mortem examination reports Ext.Ka-3 and Ka-4 and doctor has noted following facts in both the autopsy reports- Postmortem report of deceased Loknath @ Lukkhi "Loknath @ Lukkhi had average built body, his eyes were closed, mouth disfigured and cut Blood stained discharge was coming out from both the ears. Rigor mortis was absent in upper half but was present in lower half. Mild abdomen distention was noticed. No sign of putrifiction was present and cadaver had mud staining. Following ante mortem injuries were detected on his body:- (1) Puncture wound 2-1/2 x 1/2cm on outer aspect of left eyebrow, just below the orbitel bone. Lat orbital margin #ed 2cm thin bone. (2) Puncture wound 1/2 x 1/4cm, � above injury No. (1) (3) Contusion 2 x 2cm below & lateral to Rt eye ball. (4) Vertically placed puncture wound 1/2cm to root of nose 1/2 x 1/2 cm x 3-1/2cm deep. (5) 1-1/2 x 1/2cm x 2cm deep punctured wound on left cheek 1cm above lat. end of left mustache. (6) Cut wound 6-1/2 x 2 cm, 5cm deep (Jaw cut2#) on left side of lower jaw & neck, from midline upto 6-1/2cm Mandible #ed in 3 pieces. (7) Three small punctured wounds around umblicus1cm, 1cm 1/2cm long 1-1/2 to 2cm deep. No 1 is piercing peritoneal cavity. (8) On back there are seven small punctured wounds three on left side & four on right side1 to 11/2 cm size except one C is 2cm x 1-1/2 cm. (9) Abrasion 1-1/2 x 1-1/2cm, 7-1/2cm above left elbow on outer aspect of left forearm." According to the doctor cause of his death was brain stem hemorrhage and death had occurred 24 hours before." Postmortem report of deceased Naval Kishore "Naval Kishore had a lean and thin adolescent male bodywith mud stained and his head had disarticulated from trunk, attached only by a top of Lt. side of neck 1/2 cm size thread thin with maggots present. His eyes were closed and mouth semi open. Blood stained discharge was coming out from both the ears nail firm. Rigor mortis was present in the lower limbs and mild abdomen distension was noticed. Doctor had noted following ante mortem physical injuries on his body:- (1) Cut wound, disarticulating the neck and head from rest of trunk at C5 /C6 level, 17 cm - 11 cm A.P. Clavicles, C6 C7 vertebrae, all structures of neck are seen. 2. Cut wound on right side upper chest 11-1/2 x 4cm, parallel & 2 cm below injury No. (1). According to doctors estimation deceased was murdered 24 hours before and cause of his death was shock sustained due to injuries." Charge sheeting of the accused resulted in their summoning by learned CJM, Hamirpur, who finding their case triable by Session's Court committed it to the Court of Session's where it was received on 26.2.97 and was registered as S.T. No. 44 of 97, State Vs. Govind Das @ Gudda and two others. The said Session's Trial was alleged to IIIrd Additional Session's Judge for Trial who, charged the appellants under section 302/34 I.P.C. on 21.1.97. However, the said charge was altered on 1.9.98 by the learned Trial Judge making it inconsonance with the prosecution allegations and evidences and material available in the case diary. The charges were red out and explained to the accused who denied the same, pleaded not guilty and claimed to be tried and consequently, to establish their guilt, Session's Trial procedure commenced.;