- (1.) U. S. Tripathi, J. This appeal has been directed against the judgment and order dated 22-4-1980/29-4-1980 passed by Sessions Judge, Ghaziabad in Sessions Trial No. 253 of 1978, convicting appellants Smt. Piari, Masih Charan, Omvir and Ganga Sharan under Section 302 IPC read with Section 34 IPC and sentencing each of them to imprisonment for life under said section and further convicting them under Section 201 IPC and sentencing each of them to undergo RI for a period of five years.
(2.) THE prosecution story briefly stated was as under : Appellant Omvir is son of Smt. Piari, appellant, Ghan Shyam deceased aged about 12 years, was son of Hari Kishan (PW-2) and Smt. Lajjawati (PW-7 ). All the appellants and deceased and his parents were residents of village Chhaulas, P. S. Dadri, District Ghaziabad. THE deceased, his parents and appellants Omvir and Smt. Piari were sweepers and appellants Ganga Sharan and Mashih Charan were Harijans. Houses of appellant Ram Piari and Smt. Lajjawati (PW-7) were adjacent to each other. Appellant Omvir was ill. He was under treatment of Ganga Saran, a Sorcerer and Masih Charan was his assistant. It is alleged that appellant Ganga Saran advised Smt. Piari to offer human sacrifice in order to cure her son. On the morning of 30-7-1978 at about 10. 00 a. m. Ghan Shyam deceased was playing in his Chaupal alongwith Km. Kamlesh (PW-1), sister's son and daughter of Omvir and some other children. Smt. Lajjawati (PW-1) alongwith her brother Jagdish and Ram Singh was sitting in the Chaupal. Appellant Omvir came and there called Ghan Shyam and other children to enjoy swing installed in his Varandah. Ghan Shyam deceased, Km. Kamlesh (PW-1) and other children went there and were enjoying swing there. Appellants Smt. Piari, Masih Charan and Ganga Sharan were also present there. After some times appellant Omvir asked other children to go away and detained Ghan Shyam deceased. When Ghan Shyam deceased did not return to his house for a long time his mother Smt. Lajjawati (PW-1) started searching him. She went to the house of Km. Kamlesh (PW-1) and enquired from her about her son (Ghan Shyam deceased ). On her information she went to the house of Smt. Piari and Omvir appellants. The doors of Smt. Piari was closed and Ganga Saran and Masih Charan were busy in preparation for Puja. She called Smt. Piari. She came out. Lajjawati enquired from her about Ghan Shyam. She told that he left her house after enjoying swing. She traced his son in the village but he was not found. Then she sent her brother Jagdish to inform her husband Hari Kishan (PW-2) who was at Delhi. Her husband Hari Kishan (PW-2) who was serving in Akashvani Delhi, got information at about 6. 30 p. m. Immediately he started to his house alongwith his brother in law. Coming to his village he also searched his son Ghan Shyam deceased, but he could not be traced. He enquired about his son from Omvir and Smt. Piari. Omvir told him that he had left Ghan Shyam at Sikandrabad. On it the persons of the village asked him to show the boy. Omvir appellant alongwith Hari Kishan (PW-2) and other villagers proceeded towards Sikandrabad. On going about a mile he told that he did not know about Ghan Shyam deceased and he had wrongly told them that he had left Ghan Shyam at Sikandrabad. Hari Kishan (PW- 2) then came to Police Station, Dadri and lodged oral report Ext. Ka-1 at 6. 35 p. m. on 2-8-1978. Chick FIR Ext. Ka-1 was prepared by Head Moharrir Veer Singh (PW-8), who made an endorsement of the same at GD report Ext. Ka-5 and registered a case under Sections 302/201 IPC against the appellants.
(3.) INVESTIGATION of the case was taken up by Shri Suresh Chandra Sharma (PW-10 ). The I. O. interrogated Hari Kishan (PW-2) at the Police Station and alongwith police force reached village Chhaulas, where he interrogated Smt. Lajjawati (PW-7 ). Thereafter, he arrested appellant Omvir and interrogated him. He also interrogated Km. Kamlesh (PW-1 ). On 3-8-1978, Rohitashwa Kumar (PW-4) and Shafi Abbas (PW-5) were called and interrogated by the Investigating Officer. They told that the appellants had made extra- judicial confession before them that they had killed Ghan Shyam deceased and buried his dead-body in the room of Omvir. The I. O. called Shiv Raj Singh (PW-6) Sub-Divisional Magistrate, Dadri. On the pointing out of the appellant Omvir the dead-body of Ghan Shyam deceased was recovered by digging out the room in the presence of S. D. M. and other authorities. The dead- body was identified by Hari Kishan (PW-2) and Lajjawati (PW-7) as that of their son Ghan Shyam. A Khurpa, articles of worship and some burnt articles of Pooja were also recovered alongwith the dead- body. Recovery memo Ext. Ka-3 and Ka-8 were prepared. The I. O. also took into possession blood stained and simple earth from the spot and prepared memos of recovery. Sub-Inspector Jai Prakash conducted inquest of the dead-body in the presence of Shiv Raj Singh, Sub-Divisional Magistrate and other witnesses and prepared inquest report Ext. Ka-4. The dead-body was sealed and sent for post-mortem. A swing was also recovered from the house of Omvir. The I. O. inspected the place of occurrence and prepared site plan. Other appellants were also arrested. Autopsy on the dead-body of Ghan Shyam deceased was conducted on 4-8-1978 by Dr. S. U. K. Zuveri (PW-3), who found one incised wound 4" x 2" x bone deep on front of neck middle part transverse cutting all the muscles, thyroid cartilage esophagus and third clavicle vertebra and cause of death was shock and hemorrhage as a result of injury. The doctor prepared post-mortem report Ext. Ka-2.;