S.S.Kulshrestha - (1.) -Heard the learned counsel for the accused- appellant Sri Santosh Shukla and the learned A.G.A. and also perused the materials on record.
(2.) THIS appeal has been brought against the judgment and order dated 3.4.1982 passed by IVth Addl. Sessions Judge, Etah in S.T. No. 295 of 1981. State v. Sadho Singh and others, whereby holding the accused- appellant S/Sri Sadho Singh and Raja Singh to be guilty for the offences under Section 304, Part II read with Section 34, I.P.C. and sentencing them to undergo seven years rigorous imprisonment. Further they were also convicted for the offence under Section 321 read with Section 34, I.P.C. and sentencing them to undergo two years imprisonment and a fine of Rs. 2,000. Out of the recovered amount Rs. 500 each was to be paid separately to the injured Sri Santan Singh and Sri Budh Singh and Rs. 2,000 would be paid to the heirs of the deceased Sri Jawan Singh. Two accused S/Sri Prem Singh and Raj Bahadur were acquitted. It is said that the trial court has not properly appreciated the evidence and materials on record. In this case both the sides sustained injures and no reasonable explanation has come with regard to the injuries sustained by the accused-appellant Sri Raja Singh. Further it has also been argued that the original record of the case has since been lost and so in the absence of the entire evidence the disposal of this appeal cannot possibly be made and the accused-appellants on that court deserve acquittal. In order to appreciate the salient points raised by the learned counsel for the accused appellants a brief resume of the facts may be made. Accused S/Sri Sadho Singh, Raja Singh, Raj Bahadur and Prem Singh were tried for the offences under Sections 302/324 read with Section 34, I.P.C. The prosecution case in nutshell in that Sri Santan Singh, P.W. 1 and his two brothers namely S/Sri Budh Singh and Jawan Singh (deceased) were in inimical terms with the accused Sri Sadho Singh and others. Even in the past proceedings under Section 107/117 of the Code of Criminal Procedure (the Code), were also resorted in between the parties. Soon after the termination of the earlier proceedings under Section 107/117 of the Code, i.e., on 2.12.1980 at about 2.00 p.m. at village Khera within the Police Circle Chakaranagar, district Etawah, all the accused came at the tube-well of the complainant where he along with his brothers was irrigating his fields. The accused Sri Sadho Singh and Sri Prem Singh were armed with kantas, Sri Raja Singh with Dhana and Sri Raj Bahadur with ballam. They asked the complainant and his brothers not to irrigate their fields from that tube-well and threatened that if they would not refrain from doing so their entire family would be killed. When the complainant asked them not to threaten or abuse them on it the accused started giving blows with their respective weapons resultantly causing fatal injuries to the complainant and his brothers. Sri Jawan Singh sustained serious injuries and become unconscious. He was taken to hospital. After regaining consciousness his dying declaration was recorded by the Investigating Officer. A report of this incident was also lodged. The medical examination of the injuries sustained by the complainant and others had also taken place. On 3.12.1980 Sri Jawan Singh succumbed to his injuries. Police after investigation had submitted the charge-sheet against the accused-appellants. Suffice it to mention at this stage that Sri Sadho Singh one of the convict was reported dead and so the proceedings against him stood abated. From the judgment it appears that the prosecution in support of its case has proved the written report (Exhibit Ka-1) Chik report prepared by the Constable Sri Mahendra Singh (P.W. 4). G. D. entries and also the dying declaration (Exhibit 10) given by Sri Jawan Singh (deceased) in the presence of the Investigating Officer. Doctor Mohd. Ali examined the injured Sri Santan Singh and Sri Budh Singh. He has also proved the injury reports (Exhibit Ka-7 and Ka-8 and Ka-9). Sri Jawan Singh died in the night intervening 3/4.12.1980 and after his death the ante-mortem injuries were also recorded by Dr. C. B. Nimesh, Medical Officer Incharge, Etawah (P.W. 2). He also proved the post-mortem report. In their defence the accused-appellants had examined Dr. A. H. Khan, Medical Officer, District Jail, Etawah (D.W. 2) who proved the injuries sustained by Sri Sadho Singh and Sri Raja Singh (vide Exhibits Kha-3 and 4). Emphasis has been laid that the evidence which was adduced before the trial court is not on record. Only on the statements of the witnesses which were reconstructed the guilt cannot be established against the accused-appellants. It is said that the statement of Sri Santan Singh and Sri Budh Singh, who are said to be injured cannot be believed at this stage unless their testimony finds corroboration from the medical report. There was admittedly enmity in between the parties and so solely on the statements of the complainant and his brothers, the conviction of the accused-appellants cannot be sustained unless those statements are supported by some independent evidence. It has also been pointed out that even the injuries sustained by the accused-appellants are not on record and so in the absence of the record it shall be difficult to appreciate the evidence adduced by the parties. In that regard it shall be useful to mention that in view of the provisions of Section 386 of the Code the appeal cannot be disposed off in the absence of the trial court's record as was also held in the case of Sita Ram v. State, 1981 ACR 113 : 1981 Cr LJ 65. In as much from the statement of Dr. C. B. Nimesh it appears that whatever the ante-mortem injuries have been sustained by the deceased could be caused by the blunt object. The injury Nos. 1, 2, 3, 5 and 8 could be caused by a blunt object of a particular size having used in different way. That is not in consonance with the prosecution case. As has already been mentioned that the record of the case is not available and so the conviction of the accused appellants cannot be sustained. In the result this appeal is allowed. Accused-appellants are hereby acquitted for the offences under Sections 304, Part II and 324/34, I.P.C. Their bail bonds are discharged.;