- (1.) VISHNU Sahai, J. Three persons namely Karan Singh, Kunwar Bahadur Singh and Phool Singh were charged by the Additional Sessions Judge, Hamirpur (in Sessions Trial No. 90 of 1999) for offences punishable under Sections 302/34, 324 and 504 IPC. In addition, Karan Singh was charged (in Sessions Trial No. 165 of 1999) for the offence punishable under Section 25 of the Arms Act. Both Sessions trials were disposed off by the learned trial Judge vide judgment and order dated 28-4-2003. By the said order the learned Judge convicted and sentenced Karan Singh, Kunwar Bahadur Singh and Phool Singh in the manner stated hereinafter :- (i) Under Section 302/ 34 I. P. C. to death, and (ii) Under Section 324/34 I. P. C. to one year's R. I. It is pertinent to mention that learned Judge acquitted Karan Singh, Kunwar Bahadur Singh and Phool Singh for the offence punishable under Section 504 I. P. C. and Karan Singh for that offence punishable under Section 25 of the Arms Act.
(2.) CRIMINAL Appeal No. 2078 of 2003 has been preferred by Karan Singh, Kunwar Bahadur Singh and Phool Singh against the aforesaid convictions and sentences. Capital Sentence Reference No. 10 of 2003 arises out of the reference made by learned trial Judge to this Court under Section 366 (1) Cr. P. C. for confirmation of death sentence of Karan Singh, Kunwar Bahadur Singh and Phool Singh. Since Criminal Appeal No. 2078 of 2003 and Capital Sentence Reference No. 10 of 2003 arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. Shortly stated the prosecution case runs as under : Informant Ramesh Kumar P. W. 1 is the brother-in-law of the deceased Malkhan Singh (Malkhan Singh's sister Gyan Kunwar is married to him), son-in-law of the deceased Ram Murti, brother-in-law of the deceased Km. Sadi, brother-in-law of the deceased Ms. Guddu and the uncle of the deceased Sobit. Ram Murti, Km. Sadi, Ms. Guddo and Sobit are the mother, sister, wife and son of Malkhan Singh respectively. At the time of the incident, informant was living in village Dhanwa within the limits or police station Zaria in District Hamirpur. At that time, the five deceased persons (named above), injured Mohd. Idris P. W. 2 and the three appellants namely Kunwar Bahadur Singh, Karan Singh and Phool Singh were living in Kasba and P. S. Maskhara situated in District Hamirpur. The appellants and the deceased persons were closely related. Channa Singh, father of the deceased Malkhan Singh, who had been murdered in 1982, was the real uncle of the appellants (Malkhan Singh's father Channa Singh and Sewa Singh, father of the appellants, were real brothers ). There was enmity between the deceased Malkhan Singh on one hand and the appellants on the other. In the year 1982, Channa Singh was murdered by appellant Karan Singh and his father Sewa Singh. Karan Singh and Sewa Singh were prosecuted for it. Since deceased Malkhan Singh, at that time, was aged about 7-8 years and was the only son of Channa Singh, Channa Singh's widow (the deceased Ram Murti) settled the matter with Karan Singh and Sewa Singh. The appellants were on the look out to usurp the property of the deceased Malkhan Singh. On 12-4-1999, deceased Malkhan Singh had gone with Mohd. Idris P. W. 2 for thrashing of wheat. Shortly before the incident, they returned therefrom. On the said date, at about 7. 45 p. m. when Mohd. Idris was sitting on his Gumti (shop) situated at the Tiraha of Bilgam road, adjoining which a hand-pump was installed, deceased Malkhan Singh came to take bath) at the said hand-pump. On the request of Malkhan Singh, Mohd. Idris gave him a Bidi. After smoking it, at about 8. 30 p. m. , when Malkhan Singh was proceeding to take bath appellants Kunwar Bahadur Singh, Karan Singh and Phool Singh armed with axe, came from the northern direction. As soon as they reached infront of the Gumti of Mohd. Idris, Kunwar Bahadur Singh inflicted an axe blow on Malkhan Singh, which providentially did not strike him and instead struck the Gumti of Mohd. Idris. Thereafter, Malkhan Singh ran towards the hand-pump. Immediately, the appellants inflicted another axe blow on the person of Malkhan Singh but Mohd. Idris warded it off by raising his left hand. In the process, he sustained injuries. Thereafter, Karan Singh and Phool Singh assaulted Malkhan Singh with axe. He died as a result thereof. Mohd. Idris saw the murder of Malkhan Singh in the light of a lamp burning at his gumti. In the meantime, he raised cries that Malkhan Singh was being killed and he be saved. Raising them, he ran towards his house. On the way, fell the house of Malkhan Singh. Hearing his cries, Malkhan Singh's brother-in-law Ramesh Kumar P. W. 1, who had come to his house the previous day. Malkhan Singh's mother Ram Murti and Malkhan Singh's sister Km. Sadi came out from Malkhan Singh's house and rushed in the direction in which cries of Mohd. Idris were coming. Seeing this, appellants ran towards them. To save his life, Ramesh Kumar hid behind the Khandhar (dilapidated building) of Abdul's house. Thereafter, appellants felled down Ram Murti and Karan Singh inflicted axe blow on her neck and killed her. When Km. Sadi raised cries, seeing her mother Ram Murti being assaulted, Kunwar Bahadur Singh inflicted axe blow on her. She also died on the spot. The murders of Ram Murti and Km. Sadi were witnessed by Mohd. Idris and Ramesh Kumar in the light of electric bulbs which were burning in the immediate vicinity of the place where they were being assaulted. Some other persons with torches have came on the place of the incident. The appellants fired twice towards them, brandished their axes in air; and said that if anyone tried to intervene he would meet same fate. Thereafter, the appellants entered inside the house of Malkhan Singh and assaulted Guddu and Sobit with axe. The informant heard their shrieks and when the appellants ran away, after murdering them, firing in air and brandishing their axes, he went inside the house of Malkhan Singh and saw that they were dead. Thereafter, the informant went near the Gumti of Mohd. Idris, where he found the dead body of Malkhan Singh lying. Thereafter, the informant for some time lost control of his senses and when he regained his composure he sent for Akhilesh Kumar alias Lalla and informed him about the incident. On the basis of the information furnished by him, Akhilesh Kumar alias Lalla scribed the F. I. R. Then the informant alongwith Mohd. Idris went to the police station Muskhara and lodged the F. I. R.
(3.) THE evidence of Head Constable Man Singh P. W. 3 shows : On 12- 4-1999, he was posted at police station Muskhara. On the said date, at 10. 10 p. m. informant Ramesh Kumar P. W. 1 alongwith injured Mohd. Idris P. W. 2 came to the police station and the informant lodged his F. I. R. , on the basis of which, he registered a case under Section 302/504, I. P. C. (vide crime No. 97 of 1999) against Kunwar Bahadur Singh, Karan Singh and Phool Singh. He also prepared chik F. I. R. It is pertinent to mention that a perusal of the chik F. I. R. shows that the distance between the place of incident and police station Muskhara was four furlongs. THE evidence of Head Constable Man Singh further shows that he sent injured Mohd. Idris with home- guard Murlidhar for medical examination, to P. H. C. Muskhara. The evidence of Dr. R. S. Verma P. W. 4 shows that on 13-4- 1999, at 7. 15 a. m. , while he was posted as Medical Officer, P. H. C. Muskhara, he medically examined Mohd. Idris P. W. 2 and found on his person the following injury: "incised wound 3 cm x 0. 3 cm x muscle deep present on Palm 2. 5 cm below the wrist joint. Clotting present around the wound. " A perusal of the injury report shows that the said injury was caused by hard and sharp object was simple in nature; and was about 12 hours old. In the statement in the trial Court, Dr. R. S. Verma, deposed that the said injury could have been caused on 12-4-1999 at about 8. 30 p. m. and was attributable to axe.;