- (1.) THE present appeal is preferred against the judgment and order dated 8-12-1979 passed by III Addl. Sessions Judge, Hamirpur, convicting the accused-appellants under section 302/34 IPC and sentencing each of them to imprisonment for life.
(2.) THE prosecution case in brief is that on 24-12-1977 at about 8 a.m. in front of door of Prem Narayan in viillage Jamkhuri, P. S. Jariya, district Hamirpur, the accused appellants in furtherance of their common intention committed murder of Phool Singh. According to the prosecution allegations, as disclosed in the First Information Report lodged by Bans Gopal on 24-11- 1977 at 9.15 a.m. at P. S. Jariya, the reporter Bans Gopal, Chet Ram, Kishor, Kalicharan and Govinda alongwith Prem Narayan were sitting in the courtyard of the house of Prem Narayan. Phool Singh (deceased)-relation of reporter was also sitting there. THE deceased Phool Singh came out of the Court-yard for the purposes of urinating; and when he reached at a distance of 4 paces from the door, the accused persons who were on the roof of their house, challeneed Phool Singh saying "Yahi Hai Sheetal Ka Sala, Maro Sale Ko", and at once fired shots with their guns at Phool Singh. Phool Singh cried and fell down on the spot. On hearing the challenge thrown by the accused persons, the reporter and other persons who were sitting in the courtyard of Prem Narayan got up and saw the accused persons on their roof wielding their guns. THEse witnesses took shelter of the wall on shots being fired and then it was not known where the accused fled. It is also alleged that there was an old enmity of the accused persons with Sheetal. THE brother of reporter had committed the murder of one Baiju Dheemar who was the person of the party or accused Har Dayal and on account of this emnity, the accused committed the murder of the brother-in-law of Sheetal. It may be noted here that the reporter Bans Gopal PW 2, Prem Narayan PW 3, Kishori PW 4 and other witnesses, mentioned in the First Information Report, are the residents of village Jamkhuri, while the deceased Phool Singh was the resident of village Para. Bans Gopal FW 2 and other witnesses, went to the place of occurrence and found that PhooI Singh had succumbed to his injuries. Bans Gopal after leaving the witnesses at the place of occurrence went to his house where he scribed report and lodged the report Ext. Ka-2 at P. S. Jariya on the same day at 9.15 a.m. Constable Jagpal Singh PW 7 was constable Moharir at the relevant time and he prepared chik report Ex. Ka 13 on the basis of written report Ex. Ka 2 lodged by Bans Gopal. He also registered the case at SI. No. 10 of the G. D. at the same time, vide Ex. Ka.14 extract. S. I. Kripal Kuril PW 5 was the Station Officer of P. S. Jariya at the relevant time. The case was registered in his presence. The investigation of the case was entrusted to him. He took the statement of the reporter Bans Gopal at the police station and thereafter he alongwith other police personnel and relevant papers left for tie place of occurrence. He found the dead body of the deceased near chabutara of Neem tree and prepared inquest report Ex. Ka-3 in the presence of witnesses. He also prepared photo lash and challan lash Ex. Ka-7 and Ex. Ka-8. He took into possession the bloodstained clothes from the dead body (Ex. 2 to 7) and after sealing them prepared recovery memo Ex. Ka-4. The dead body was sealed and it was despatched for post-mortem through constables Lakhan Singh and Ari Mardan Chaube with letters Ex. Ka-9 and Ka-10. The Investigating Officer took the statement of witnesses of inquest report and Prem Narayan, he then inspected the place of occurrence and prepared site plan containing index, vide Ex. Ka-11 carbon copy. He also took into possession blood stained earth Ex. 8 and plain earth Ex. 9 and sealed them in separate containers and prepared memo Ex. Ka 5 which was signed by the witnesses. He recovered from the place of occurrence Tiklies Ex. 11/1 to 11/7 and 3 pellets Ex. 1/1 to 1/3 and prepared memo in respect thereof, vide Ex. Ka-6. He then took the statement of witnesses Chet Ram, Kinori, Kalicharan and made search of the accused but they were not found. The dead body of Phool Singh in sealed condition was sent through constables Lakhan Singh PW 6 and Ari Mardan Chaube for post-mortem and they produced it in sealed condition on 25-12-1977 before Dr. S. C. Pandey PW I, who was medical officer Incharge Make Hospital Rath district Hamirpur, and identified the dead body. Dr. S.C. Pandey performed autopsy on the dead body of Phool Singh on 25-12-1977 at 3.30 P.M. Dr. Pandey found the eyes of the deceased closed, mouth half open. abdomen swallen blood discharged from nostrills, rigor mortis present in both upper and lower limbs. Dr. Pandey found following ante Mortem Injuries on the person of the deceased : Gun-shot wound of entrance 8 cm x 8 cm x bone deep just below left lower eye lid lateral side below lateral angle of left eye. On internal Examination, Dr. Pandey found : Dura mater ruptured due to injury, blood present over both heamosphere. One shot taken out from right haemisphere. Fracture of left and right anterior crinial fossae. He also found fracture of left masulla due to injury. Stomach contained 4 Ozs coagulated blood. Small intestine contained blood. Large intestine contained faecal matter. Urinary bladder was empty. In the opinion of Dr. Pandey, the death was due to coma as a result of injury. The death had taken place about 18 to 36 hours before post mortem examination.
(3.) ON 25-12-1977 the Investigating Officer after making search of the accused, returned to the police station and deposited the aforesaid 4 bundles of the case property and made entry at SI. No. 13 of the G. D. at 6.30 P.M., vide Ex. Ka. 15. The Investigating Officer learned on 28-12-1977 that the accused had gone to Hamirpur for surrender before the court and further learned on 3-1-1978 that the accused after surrender had been sent to Jail. After completing the investigation, the Investigating Officer Shri Kripal Kuril PW 5 submitted charge-sheet against the accused persons, vide Ex. Ka-13. The prosecution examined in all seven witnesses. Out of them Bans Gopal PW 2, Prem Narayan PW 3, Krishori PW 4, are witnesses of fact. Dr. S. C. Pandey PW 1 performed autopsy on the dead body of deceased Phool Singh and Shri Kripal Kuril PW 5 I.O., investigated the case. Constable Lakhan Singh PW 6, and Jagpal Singh PW 7 are formal witnesses, of the case regarding despatch of dead body for post-mortem and preparation of chik report and G. D. entry.;