- (1.) THIS appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity hereinafter Cr. P. C.), is di rected against the judgment and order dated 23-11 -1987, passed in Sessions Trial No. 81 of 1983, by the then learned II Additional Sessions Judge, Dehradun, whereby accused / appellant Dhanraj has been convicted under Section 302 and 307 of the Indian Penal Code, 1860. (for brevity hereinafter I. PC.), and sen tenced to imprisonment for life under Section 302 of the I. PC. , and rigorous imprisonment of five years under Sec tion 307 of the I. P. C. By the same judg ment and order accused / appellant Bishan Lal @ Kishan Lal and accused / appellant Mohan have also been con victed under Section 201 of the I. P. C. , and each one of them has been sen tenced to rigorous imprisonment for five years.
(2.) WE heard learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that late Sri Kul Prasad, father of P. W. 1 Prem Prakash, the informant, had two wives. Smt. Dilisara (deceased), the sec ond wife of Kul Prasad, is mother of the informant. Kul Prasad had two sons from his second wife namely Prem Prakash (RW. 1) and Luxman Prasad. The first wife of Kul Prasad had died about 16 years before the incident. Ac cused / appellant Dhanraj is one of the three sons of said first wife of Kul Prasad. The other two brothers of Dhanraj (appellant) are Bhoop Narain and Dhan Bahadur (RW. 3 ). Sri Kul Prasad, father of the informant Prem Prakash and accused / appellant Dhanraj, died in the year 1976. On his death the land owned by him was mu tated in the name of Dilisara (deceased ). Accused / appellant Dhanraj used to suspect that Dilisara may transfer all the property in her name, in favour of in formant and his real brother. Apart from this, three children of accused / appel lant Dhanraj used to get fits due to epi lepsy, and Dhanraj and his wife sus pected that Dilisara (deceased), step mother of accused / appellant Dhanraj, practices witchcraft which causes the ill ness in their children. On 21-04-1983 i. e. day of 'ramnavmi', there was TOOJA (worshiping) and 'hawan' (sacrificial ladle) in the family of the informant, which completed at about 1:00 P. M. At about 4:00 P. M. , one of the daughters of accused / appellant Dhanraj, got fits. At about 7:30 RM. , on the same day i. e. 21-04-1983, when informant Prem Prakash (P. W. 1) was sitting with his brother Luxman Prasad, accused / appellant Dhanraj, armed with his licensed SBBL gun, came in his house and told that due to witchcraft practiced by the informant's family, his daughter has got illness and he fired at the informant Prem Prakash. Only some pellets of the said shot could hit on tem ple near the right ear of the informant. Prem Prakash (RW. 1), informant along with his brother Luxman Prasad, rushed to a room in his house and locked it from inside to save, their lives. Then, accused / appellant Dhanraj went to another room where Dilisara (mother of the informant) was in company of her daughter-in-law Khemawati (RW. 5 ). He fired another shot from his gun, this time at Dilisara, which hit her and she died on the spot. Meanwhile, due to the sound of first shot, witnesses Dhan Bahadur (RW. 3), the real brother of the accused / appellant Dhanraj, and one Keshav Prasad also rushed at the spot, but nobody could dare to apprehend Dhanraj as he was armed with a lethal weapon. After committing murder of Dilisara, Dhanraj fled from the scene. P. W. 1 Prem Prakash got lodged the First Information Report (Ext. A-l) on the same day i. e. 21-04-1983, at about 9:40 P. M. , with police station Dalanwala, which was at a distance of 8 kilometers from village Kidduwala, Raipur, Dehradun, where the incident took place. P. W. 6 Head Constable Mangu Ram Tyagi prepared the check report (Ext. A-5) on the basis of the First Information Report, lodged by the informant. He further made necessary entry in the gen eral diary, copy of extract of which is Ext. A -6. The crime was investigated by P. W. 9 Sub Inspector Ram Kishore Sharma, who inspected the spot, col lected simple soil and blood stained soil from the place of occurrence and pre pared memo (Ext. A -10) with sample seal (Ext. A-ll ). He also collected the TIKLT (small round pieces of metal filled in cartridges) found at the place of oc currence and prepared memo (Ext. A-12) with sample seal (Ext. A-13 and Ext. A-l5 ). He further collected the empty cartridges and prepared memo (Ext. A-16) with sample seal (Ext. A -17 ). P. W. 2 Dr. M. B. Pandey, medically examined the injuries on the person of Prem Prakash and prepared the medical injury report (Ext. A-2 ). Next day i. e. on 22-04-1983, at about 7:00 A. M. , the Inves tigating Officer went again to the spot and took the dead body of Dilisara in his possession and got prepared inquest report (Ext. A-18 ). He further got pre pared the sketch of the dead body (Ext. A-19), police form No. 33 (Ext. A-20), police form No. 13 (Ext. A-21) and let ter (Ext. A-24) to the Chief Medical Officer, Doon Hospital, Dehradun re questing for postmortem examination of the dead body. P. W. 4 Dr. O. P Mishra conducted the autopsy on the dead body of Dilisara on 22-04-1983, at about 2:30 RM. and prepared the postmortem examination report (Ext. A-4 ). He opined that the deceased had died due to shock with haemorrhage caused by gunshot injury. The Investigating Officer prepared the site plan (Ext. A-25 ). He also got sent the simple soil & blood stained soil and blood stained articles for examination to the Forensic Science Laboratory. During investigation, the gun used in the crime, was recovered and sent to the Ballistic Expert for examination. It is found dur ing investigation that to conceal the evi dence of commission of crime appellant Mohan, brother-in-law of appellant Dhanraj, got deposited the gun, used in the crime, with the arm dealer appellant Bishan Lal @ Kishan Lal, on a back date. After recording the statement of the witnesses, and on completion of the investigation, the Investigating Officer submitted the charge sheet (Ext. A-37) against all the three accused / appellants namely, Dhanraj, Bishan Lal @ Kishan Lal and Mohan to the Magistrate (a separate charge sheet (Ext. A-38) was filed against accused Saraswati, but she was acquitted by the trial court ). The Magistrate, on receipt of the charge sheet, it appears after giving nec essary copies to the accused persons, as required under Section 207 of the Cr. RC. , committed the case to the court of Sessions for trial. The trial court, af ter hearing the prosecution and the de fence, framed charge of two heads against accused / appellant Dhanraj re garding the offences allegedly commit ted by him, punishable under Section 302 and 307 of the I. P. C. Charge of of fence punishable under Section 201 of the I. P. C. was framed against rest of the accused namely, Bishan Lal @ Kishan Lal, Mohan and Km. Saraswati. All the accused persons pleaded not guilty and claimed to be tried. On this, the pros ecution got examined P. W. 1 Prem Prakash (informant and injured eyewit ness); P. W. 2 Dr. M. B. Pandey (who medically examined the injuries on the person of injured Prem Prakash); P. W. 3 Dhan Bahadur (eyewitness and real brother of accused Dhanraj); P. W. 4 Dr. O. R Mishra (who conducted the autopsy on the dead body of Dilisara); P. W. 5 Smt. Khemawati (eyewitness and daugh ter-in-law of the deceased); P. W. 6 Head Constable Mangu Ram Tyagi (who pre pared the check report (Ext. A-5) of the F. I. R. and made necessary entry in the general diary, copy of extract of which is Ext. A-6); P. W. 7 Narain Singh (de clared hostile); P. W. 8 Constable Surender Kumar (who took the dead body in a sealed cover for postmortem examination); P. W. 9 Sub Inspector Ram Kishore Sharma (who investigated the crime) and P. W. 10 Om Prakash Mani Tripathi (the Ballistic Expert ). The entire oral and documentary evidence was put to the accused persons under Section 313 of Cr. RC. regarding which they de nied the same as false. No evidence in defence was adduced on behalf of the accused persons. The trial court, on completion of the sessions trial, found accused/appellant Dhanraj guilty of the offences punishable under Section 302 and 307 of the I. P. C. , and after hear ing on sentence, sentenced accused Dhanraj to imprisonment for life and rig orous imprisonment for five years, re spectively. The trial court further found accused / appellants Bishan Lal @ Kishan Lal and Mohan guilty of offence punishable under Section 201 of the I. P. C. and sentenced each one of them to rigorous imprisonment for five years. However, accused Km. Saraswati was not found guilty and she was acquitted of the charge of offence punishable un der Section 201 of the I. P. C. Aggrieved by said judgment and order dated 23-11-1987, the Convicts Dhanraj, Bishan Lal @ Kishan Lal and Mohan preferred an appeal, before the Allahabad High Court in the year 1987, which was reg istered as Criminal Appeal No. 2831 of 1987. The same was received by way of transfer to this Court under Section 35 of the U. P. Re-organization Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here, the ante mortem injuries found on the dead body of Dilisara. The postmortem examina tion report (Ext. A-4) read with the statement of P. W. 4 Dr. O. P. Mishra, dis closes following ante mortem injuries on the dead body of the deceased, at the time of autopsy : 1. One big gunshot wound 2 inch 2 inch peritoneal cavity deep (wound of entry), (the margin of wound is scortched and loops of small intestine is coming out of this wound ). This wound is situ ated at left side of upper abdo men 3 inch below left costal re gion in anterior axilliary line. One lump removed from deep surface of this wound. 2. One gunshot wound (wound of exit) 3/4 inch x 1/2 inch peritoneal cavity deep, on upper part of right side of abdomen, just below the costal margin in anterior axilliary line. 3. Three gunshot wounds (wounds of exit) lying 3 inch apart from each other in right lumber area of abdomen. Two big irregular pel lets and 12 small irregular pellets were removed from the muscle planes of right side upper abdo men. The cause of death of Dilisara, ac cording to the Medical Officer, is due to shock with haemorrhage caused by gun shot injury. P. W. 1, Prem Prakash, is inform ant and injured eyewitness. He states that his father Kul Prasad had two wives - first wife was Tulsi Devi. From Tulsi Devi his father had three sons namely, Bhoop Narain, Dhan Bahadur (P. W. 3) and Dhanraj (appellant ). The second wife of his father was Dilisara (de ceased), who had two sons - one the witness himself (Prem Prakash) and the another is Luxman Prasad. Tulsi Devi, the first wife of father of this witness, died long back. Kul Prasad, father of Prem Prakash (P. W. 1), died in the year 1976. He had some 8-9 Bigha of land, apart from the house. The partition had already taken place during the lifetime of Kul Prasad between his sons. How ever, accused / appellant Dhanraj used to suspect that the land in the name of Dilisara would be given by her only to her real sons. Apart from this, three of the four children of accused / appellant Dhanraj used to get attack of epilepsy, and Dhanraj suspected Dilisara of practicing witchcraft on his family mem bers. P. W. 1 Prem Prakash further states that it was 21-04-1983, the day of 'ram NAVMI', when there was 'pooja' (worshiping) and 'hawan' (sacrificial ladle) in his house, which completed at about 1:00 P. M. On the same day, at about 4:00 P. M. , one of the accused / appellant Dhanraj's daugh ter had a fit of epilepsy. At about 6:30 P. M. , accused / appellant Dhanraj, armed with his licensed SBBL gun (Ext. 1), came in the house of informant Prem Prakash when he was sitting with his brother Luxman Prasad and fired at him. The witness further states that some pellets from the gunshot hit him. near his right temple (KANPATTI ). In or der to save himself, he along with his brother went in a room and locked it from inside. From the window he saw that accused / appellant Dhanraj, there after, went to another room where his mother Dilisara was with Khemawati (P. W. 5), her daughter-in-law. He (Dhanraj) then fired a shot from his gun at Dilisara, who died en the spot. Above statement of P. W. 1 Prem Prakash is corroborated by accused / appellant Dhanraj's real brother P. W. 3 Dhan Bahadur, who has stated that on 21-04-1983 on hearing the sound of first fire he went to the house of Prem Prakash and saw accused / appellant Dhanraj fired second shot at Dilisara. This wit ness has corroborated that while firing at Dilisara, accused / appellant accused the deceased that she practices witch craft against his daughters.;