Kantian Singh, J. - (1.) RAM Autar and Brij Lal have filed their separate Criminal Appeals being Nos. 3242 of 1979 and 3248 of 1979 respectively, against the judgment and order dated 4-12-79, passed by Sri B. N. Mohiley, the then Second Additional Sessions Judge, Moradabad, whereby each of them has been convicted under section 302 IPC or in the alternate Sec. 394/34 IPC and sentenced to undergo life imprisonment in Sessions Trial No. 148 of 1979. Since both the appeals are out of one and the same Judgment, they are being disposed of by this common Judgment.
(2.) IN % nutshell the prosecution case is that Sri Ram Chandra Sharma Advocate was running an Educational INstitution known as "Ram Chandra Baiika Vidyalaya" in the campus of his Bungalow situate in Mohaila Chandra Nagar, within the jurisdiction of police station civil Lines, Moradabad. IN the intervening night of 13th and 14th October, 1978, Sri Ram Chandra Sharma Advocate was sleeping in Room No. 5 of the School. Pradeep Sharma, who is son of Sri Ram Chandra Sharma, was informed at about 6.00 a.m. on 14-10-78 at his residence 147. Awas Vikas Colony, Civil Lines, Moradabad, by Hardayal, Hem Singh, Smt- Veermati and Smt. Munni. employees of the school, that the doors of the room of Babu Ji were half opened, light was on and repeated calls met no response, Thereapon Pradeep Sharma came to the place of occurrence. He found his father Ram Chandra Sharma lying in a pool of blood on the ground under a double bed and two knives smeared with blood were also lying there. Appellant Brij Lal Chaukidar of the school was absent from school since last night and his room was also lying locked, hence his hands in the commission of offence was suspected. Accordingly an FIR was lodged at 7.45 a.m. on 14-10-78 at police station Civil Lines, Moradabad. S.The investigation of the case was entrusted to Sub-INspector Kali Ram Singh (PW 14). He reached the spot and recorded statements of Pradeep Sharma and others. Then he prepared the inquest report of the dead body and sent it to mortuary for post-mortem examination. Autopsy on the body of the deceased was conducted by Dr. Ravi Kant Mishra PW !0. He found ante mortem INjuries, which consisted of 9 incised wounds, one contusion and three abrasions. The INvestigating Officer also prepared a site plan, took into the custody the blood stained knives lying on the spot and prepared their recovery memos. He also took into the po ssession the blood stained Chadar, Bed-sheet, Bush-shirt, one Handkerchief, Underwear, Baniyan, Hawai Chappals and blood stained and unstained pieces of floor including other articles and also prepared the recovery memos. 4.Brij Lal was arrested on 16-10-78 from double phatak and was lodged in police lock-up at 10.35 a.m., while Ram Autar was arrested from the Hotel of one'Ganpat on the same day put in police lock up at 12.30 p.m. On interrogation the accused showed their willingness to handover the incriminating articles taken away by them from the place of occurrence. Hence they were taken on police remand till 21st October, 1978. The accused also disclosed that during the incident they too had sustained some injuries, hence they were sent for medical examination. On medical examination, Dr. B. K. Sharma PW 2, found three contusions, one incised wound, three traumatic swelling and two abrasions on the person of Brij Lal at 5.05 p.m. on 16-10-78. Duration of first three injuries, i.e. one abraded contusion, one incited wound and one abrasion, was 2 1/2 days old while rest of the injuries were fresh. Similarly, on the person of Ram Autar two fresh contusions were found. The Principal of the School, who had gone to Delhi in connection with her treatment, returned ,at 7.00 p.m. on 16-10-78 and handed over a list of missing articles Ext Ka-6. At the pointing out of Brij Lal his blood stained Bush-shirt and pant, currency notes of Rs. 1600/- and 40 dollars, wrapped in an old handkerchief of the deceased, were recovered while at the pointing out of Ram Autar one blood stained Bushshirt and Pant of his own, one purse containing currency notes of Rs. 900/- and 39 dollars and one M.S.T (Railway Pass) of the deceased were recovered from their respective quarters lying hidden under the ground The recovery memos Exhibit Ka- 4 and Ka-5 were prepared and got signed by the witnesses. The accused persons were sent again for medical examination on 21-10-78. Dr. Ajai Pal Singh Sengar, PW 15, found no fresh injury on the body of Brij Lal except a contusion noted at Serial No. 8 in the injury report Ext. Ka-2 which was 5 days old, while on the person of Ram Autar 5 days old two contusions were found. 5.On 30-10-78, the remaining investigation of the case was transferied to D. P. Singh, S H.O., who after completing the same submitted charge sheet against the appellants. 6 The prosecution examined 16 witnesses in all to prove its case but there is no single eye witness of the incident. The whole case rests on circumslancial evidence. The learned, counsel for the appellants pointed out following circumstances emerging from the evidence available on record :- t. Deceased Ram Chandra Sharma was a practising advocate. He was a well to do person, having Bungalow Car etc. He had parted 'Balika Vidyalaya in the campus of his Bungalow. He used 'to sleep in room no. 5 of the school with Smt, Sushma Kulshrestha, Principal of the School. Appellant Brij Lal was working as Chaukidar while Ram Autar was an employee on the Photostat shop of Pradeep Sharma. Both the appellants were residing in separate quarters in the campus of the School. The murder of Sri Ram Chandra Sharma was committed in the intervening night of 13/14th of October, 1978. IN the morning of 14th October, 1978, the murder was detected and Brij Lal, who was on duty as Chaukidar, was found missing in the morning, hence he was suspected to be the culprit. Similarly, Ram Autar appellant, who was present in the morning but was found missing when the informant-returned to the spot after- lodging the FIR. Both of them remained absconding till their arrest on 16-10-78. Prosecution examined Pradeep Sharma as PW 1 to prove the fleeing away of the appellants from the spot. 2. At about 11.00 p.m in the fateful night both the appellants were seen going towards the verandah of the room where the deceased was sleeping when they were accosted by Hem Singh, an employee of the school as to why they were awaken. Thereupon Brij Lal replied that he was perturbed hence he got Ram Autar awakened. Nothing was abnormal and he was asked to go. To prove that part of the evidence the prosecution has examined Hem Singh aforesaid as PW 4. At about 9.00 a.m. on 13-10-78, both the appellants were taking tea at the Tea stall near the Loco Shed. Brij Lal was saying to other person that Principal had gone to Delhi and she has asked him to achieve mission Other person told that it was propitious time and no better opportunity would be available in future. To prove that link of the evidence, the prosecution has examined PW 3 Ashok Kumar Saxena, who is said to have over- heard the conversation of the appellants. During the course of interrogation the accused confessed before the police that some scuffle took place between the deceased on one hand and the accused on the other, and both the accused sustained some injuries in that scuffle. In order to prove this part of evidence, the prosecution examined two doctors, namely, Dr. B. K. Sharma PW 4 and Dr. A. P. Singh Sengar PW 15, who found some injuries on their bodies. The duration of some of those injuries tallied with the time of incident.
(3.) THE accused persons sustained blood stains on their clothes i.e. pants and shirts in the incident and those blood stained pants and shirts were recovered at their pointing out. In order to prove this circumstances, PW 14 Kali Ram Singh Sub-Inspector, PW 5, Om Prakash and PW 6 Smt. Sushma Kulshreshtha were examined. Currency notes of Rs. 1600/- and 40 dollars wrapped in a rotten handkerchief were recovered at the pointing out of Brij Lal appellant from a pit after removing some bricks in his quarter, in the similar manner, a purse containing currency notes of Rs. 900/-- and 39 dollars were recovered at the pointing out of Ram Autar from a pit after removing some bricks from the floor of his quarter. To prove this piece of evidence, the prosecution examined PW 5 Om Prakash, PW 6 Smt. Sushma Kulshreshtha and Sub Inspector Kali Ram Singh PW 14. Those articles of the deceased taken away by the accused from the place of occurrence and hidden in their rooms and subsequently recovered and were identified by PW 6 Smt. Sushama Kulshreshtha as that of deceased at the time of recovery. 7 Both the accused appellants made-extra judicial confession to Ram Kripal Singh and to prove that confession the prosecution examined Ram Kripal Singh PW 16 but this evidence was discarded by the trial Judge being not reliable.;