- (1.) S. N. Sexena, J. This criminal appeal is directed against the judgment and order dated 2. 7. 1980, whereby Shri R. R. Jatav the then learned Sessions Judge, Hamirpur convicted appellants Badri and Katori under Sections 394 and 302 read with Section 34, IPC and sentenced each of them to undergo rigorous imprisonment for three years and imprisonment for life for the said offences respectively. The facts, which gave rise to the present appeal, are as follows:
(2.) ACCUSED Badri and Katori belonged to village Budhawara within Police Station Ajanar district Hamirpur. Complainant Ghulam Shabbir (PW-1), Ghulam Ayyub (PW-2) and deceased Ghylam Shabbir were residents of village Balapur within Police Station, Balapur district Akola of Maharashtra. They used to do the business of cloth including bed-sheets and daris at different places and in connection with the same had come to this State also. The incident resulting in the murder of Ghulam Shabbir had taken place on 8-11-1978 at about 12 noon in the precincts of village Rampura. The above named persons had taken a house on rent in Tikamgarh in district Chhatarpur and from there used to go to different places to sell cloth. Two days prior to this incident, they had gone to village Budhawara and had stayed there on 6-11-1978, Both the accused had asked the deceased and his companion Ghulam Shabbir to sell some cloth on credit. They, however, had not agreed for the same due to which altercations had taken place. The accused persons abused and gave threats to both of them. Next day, the deceased and his companion Ghulam Shabbir had gone to village Sagunia where they had sold cloth during the day. On the day of this incident i. e. 8-11-1978, they were going to village Ajanar for carrying on their business. Complainant Ghulam Shabbir was ahead of his companions by a few steps. Deceased Ghulart Shabbir was following him while Alimuddin alias Sheikh and Ghulam Ayyub were behind Ghulam Shabbir. They were in the precincts of village Rampura and had reached near a drain described as Nala by the witnesses and also shown in the site-plan Ext. Ka-8 as Nala by the Investigating Officer, when the two accused came out of a Jwar field and started moving in the same direction ahead of the compalainant Ghulam Shab bir. On reaching near the Nala, both the accused persons started washing their hands in the water. Complainant Ghulam Shabbir enquired from them about the way to village Ajanar upon which they hurled abuses and further directed them to proceed silently on the way on which they were going. It was about 12 noon at that time. The complainant and his companions including Ghulam Shabbir proceeded further on the way. The story further goes that Complainant Ghulam Shabbir and crossed the Nala and was proceeding further when accused Katori inflicted lathi blow upon Ghulam Shabbir which hit him. Ghulam Shabbir raised alarm and accused Badri then took out a country made pistol (Tamancha) and fired a shot upon him. Ghulam Shabbir was hit by the shot and had fallen dead on the ground. The Complainant and his companions rushed towards the accused persons upon which accused Badri with the help of his country made pistol threatened them with serious consequences. ACCUSED Katori took out Rs. 700 from the pocket of the deceased Ghulam Shabbir and both the accused, thereafter, ran away in the northern direction. Complainant Ghulam Shabbir left Alimuddin alias Sheikh and Ghulam Ayyub at the place of occurrence and himself went to Police Station Ajanar where he lodged the FIR of the incident with the Police at 12. 30 p. m. vide Ext, Ka-3. The Police registered a case in the general diary and the investigation followed as usual. The dead body of Ghulam Shabbir, after completion of the necessary formalities by the Investigating Officer, was sent to the mortuary for Post- mortem examination. After the completion of the investigation, the Police challaned the accused persons for trial under Sections 394 and 302, IPC. Learned lower Court on 7-11-1979 charged both the accused persons under Sec tions 394 and 302 read with Section 34, IPC to which they pleaded not guilty and claimed trial. The defence of the accused persons consisted of their denial of the guilt. The suggestion put to the prosecution witnesses on their behalf during the cross-examination showed that they allegedly had been falsely implicated at the instance of Narain Dass of village Budhawara. The prosecution, in order to prove the guilt of the accused persons, examined Complainant Ghulam Shabbir as PW-1 and Ghulam Ayyub as PW-2. Both of them supported the prosecution story on all material points. The suggestions put to these two witnesses in the cross-examination for the accused persons showed that a feeble attempt was made by them to show that they had at the instance of one Narain Dass of village Budhawara, falsely implicated them in this case. Complainant Ghulam Shabbir (PW-1), however, denied the aforesaid suggestion and stated that he did not know any person named Narain Dass and had not talked at the Police Station with any person belonging to village Budhawara. He expressed ignorance if Narain Dass was on inimical terms with the accused persons. PW-2, Ghulam Ayyub also in his cross-examination stated that he did not know from before any person of village Budhawara by name and that he had come to know about the names of the accused persons from the residents of village Budhawara after they had threatened him and his companions with serious consequences after hurling abuses, as they had refused to sell cloth on credit to them. He denied the suggestion that he had not witnessed the incident. The prosecution examined PW-3 Dr. M. K. Singhal, who had conducted the post-mortem examination on the dead body of Ghulam Shabbir on 9-11-1978 at 1. 00 p. m. He proved the post-mortem examination report Ext. Ka-4 and stated about the ante-mortem injuries found by him upon the dead body. He had found the following ante-mortem injuries on the dead body of Ghulam Shabbir: (1) One wound of gun shot entry 3 cm. x 3 cm. x chest cavity deep, present on the back left side at 6th and 7th ribs, 4 cm. from mid line with lacerated, blackened and charred margins in 1. cm. area around. The pellets passing through the underlying muscles had fractured 6th and 7th ribs at the region and entered in posterior wall of left pleural cavity lacerating it and the left lower lobe of long upper part, making almost a circular hole of 4 x 4 cm. size. The pellets passed into the anterior pleural layer, pericardium and the left ventrical of the heart which was lacerated. Two ticklies pieces recovered from left ventricle of heart and one 'tikli' from left lung. 12 pellets recovered from left lung zone, eight from left ventricle and six from anterior intercostal muscle. Left pleural cavity contained about 1 pint of blood. (2) Contusion on the outer side of left elbow joint, measuring 5 cm. x 1. 5 cm. , obliquely placed. (3) Contusion above left shoulder joint, upper part, measuring 4 cm. x 1. 5 cm. , obliquely placed. (4) Multiple abrasion in 4 cm. x 4 cm. area on the back and outer side of lower 1/3 left forearm. (5) Abrasion 2 cm. x 2 cm. area, on the outer side of the middle part of right forearm.
(3.) THE internal examination of the dead body had revealed laceration of the heart and the left lung. THE stomach was found empty and digested food was present in the small intestines. THE large intestines contained faecal matter and gases. In the opinion of the Doctor. Ghulam Shabbir died as a result of shock and haemorrhage due to the injuries to the heart by a fire-arm. He had found 26 pellets and 3 'tikli' pieces from the dead body. He stated that the death of the deceased Ghulam Shabbir could have taken place at about 12 noon on 8-11-1978 and a margin of six hours on either side was possible in his opinion about the probable time of death. Pw-4 Vishwanath Pandey was posted at Police Station, Ajanar on 8-11-1978 as Constable Moharrir. He proved the FIR Ext. Ka-3 and stated that he had drafted the same on the dictation of Complainant Ghulam Shabbir, who had signed it after he had read over the same to him. He proved the registration of the case at the same date and time in G. D. No. 11 vide Ext. Ka-5, which is a copy of the entry of the registration of the case. In his cross-examination, stated that no person of village Budhawara was present at the Police Station when the FIR of this incident was written by him and he did not know Narain Dass of village Budhwara. He denied the suggestion that the FIR was drafted sometime later and was ante-time. Pw-5 Chandra Pal Singh, was posted as Station Officer, Ajanar when this incident had taken place and was present at the Police Station when the FIR was taken down and the case was registered there. He had taken the investigation in his hands and interrogated Complainant Ghulam Shabbir Pw-1 at the Police Station. Thereafter, he had gone to the place of occurrence alongwith Police force and had interrogated Alimuddin alias Sheikh and Ghulam Ayyub. Therafter, other formalities were completed by him at the spot which was inspected by him and he prepared the map Ext. Ka-8 of the place of occurrence. He had found Rs. 74 in the pocket of the Kuna of the deceased Ghuulam Shabbir and Rs. 3. 50 in the right pocket 01 the Baniyan of the deceased. He had taken the amount in his possession and completed the necessary formalities in respect of the same. Accused Badri was arrested by him on 23-11-1978 and he had submitted charge-sheet Ext. Ka-18 aginst him on 16-1-1979. Accused Katori was arrested on 1-2-1979 and charge-sheet Ext. Ka-19 against him was submitted on 1-2-1979. In his cross-examination, he stated that he had come to know during the investigation that the villagers had told the names of the accused persons to the complainant and other prosecution witnesses and he had not found it necessary to put the accused persons for test identification. Further, he stated in his cross-examination that he had not met any person named Narain Dass of village Bud hawara.;