- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter for brevity re ferred as Cr. P. C.), is directed against the judgment and order dated 15-04-1994, passed in Sessions Trial No. 68 of 1990 (alongwith Sessions Trial No. 107 of 1992) by the then learned Sessions Judge, Dehradun, whereby he has con victed appellants Babita, Rukmani and Jhandu under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I. PC.), and sentenced each of them to imprisonment for life. However, other two accused Smt. Prakasho and Ramesh have been acquitted of the charges framed against them.
(2.) PROSECUTION story, in brief is that about 5-6 days before the date of the incident, on 29-05-1990, accused Smt. Prakasho had a quarrel with deceased Smt. Kusum Thapa of which a report was got registered by both the sides in Police Station Cantt. , Dehradun. There after on 04-06-1990, at about noon, Smt. Kusum Thapa (deceased) had gone to a near by canal with her cow so that the cattle may have water. There, suddenly, accused/appellants, Babita, Rukmani and Jhandu reached in a Maruti Van registration No. HYG 663, which was being driven by ac cused Ramesh. Smt. Prakasho also came out of her house at that time and pointed at Kusum Thapa that she is the lady who quarreled with her. On this, accused/appellants Babita, Rukmani, who were armed with knives, started giving blows with the weapons on the person of Smt. Kusum Thapa. On the shouts of Kusum Thapa, her husband Shivraj (P. W. 1), another eyewitness Sandeep (P. W. 2), one Ajay Singh and Mohabbat Singh, rushed to the spot. They saw the two girls, named above, striking blows with knives on the per son of Kusum Thapa while third ac cused Jhandu armed with revolver, was standing at some distance. He chal lenged the witnesses not to dare to come to the rescue of the deceased. On seeing the situation, P. W. 1 Shivraj, P. W. 2 Sandeep, Mohabbat Singh and Ajay Singh went inside their house and came out with lathies (rods ). The ac cused persons left Kusum Thapa injured and fled away in the van. Immediately information was given to the nearby police station and Kusum Thapa was taken in a jeep to the hospital, where she succumbed to the injuries received by her in the incident P. W. 1 Shivraj, thereafter lodged the First Information Report (Ext. A-1) on the very day i. e. 04-06-1990, at about 13:30 hrs with the police station Cantt, Dehradun. Check report (Ext. A-20), of the same was prepared by P. W. 9 Head Consta ble Bharose Lai, who also made entry in the General Diary (extract of which is Ext. A-l7 ). On the basis of First In formation Report, crime No. 390/1990 was registered against accused Babita, Rukmani, Smt. Prakasho and Jhandu relating to the offence punishable un der Section 302 of I. P. C. P. W. 6 Sub-Inspector R. S. Rana, investigated the crime. He inspected the spot on the very day and prepared site plan (Ext. A-6 ). He also took the blood stained soil and sample soil and got prepared memo (Ext. A-4 ). The vehicle registra tion No. HYG 663, used in the crime was recovered on the very day. After re cording the statements of the witnesses, the Investigating officer, arrested accused/appellants Babita and Rukmani on 17-06-19-90. During investigation, name of Ramesh (though not named in First Information Report) also figured and later on he too was arrested. A charge sheet was submitted against all the five accused persons before the Magistrate. The Magistrate, on receiving the charge sheet registered the same and after giving necessary copies to all the five accused persons, as required under Section 207 of Cr. P. C. , committed the case to the Court of Sessions for trial. Learned trial court after hearing the prosecution and the defence, framed charge of offence punishable under Section 147 and 302/149 I. P. C. against the accused Jhandu (one of the present appellants), Prakasho and Ramesh. The trial court framed charge of offence punishable under Section 148 and 302/ 149 I. P. C. against the accused/appellants Babita and Rukmani. All the five accused persons denied the charge and claimed to be tried. On this, the pros ecution got examined P. W. 1 Shivraj (husband of the deceased) informant and eye-witness, P. W. 2 Sandeep (eye witness), P. W. 3 Dr. Kuldeep Dutta, who conducted autopsy on the dead body of Kusum Thapa, P. W. 4 Dayal Singh Thapa (father-in-law of the deceased), P. W. 5 Krishan Pal Singh (a by-passer, who was declared hostile), P. W. 6 Sub-Inspector R. S. Rana (who investigated the crime), P. W. 7 Pravesh Kumar Mitral (owner of the vehicle registration No. HYG 663), P. W. 8 Jagvir Singh Atri (S. H. O. Mussoorie, Dehradun) and P. W. 9 Head Constable Bharose Lal (who prepared check report and made entries in the General Diary ). The oral and documentary evidence was put to the accused persons by the trial court un der Section 313 of Cr. P. C. In reply the accused persons alleged that they have falsely been implicated in the crime and evidence against them is false. Learned trial court, after hearing the prosecution and the defence, convicted the accused appellants Babita, Rukmani and Jhandu on the charge of offence pun ishable under Section 302 read with Section 34 of I. P. C. and sentenced (af ter hearing on sentence) each one of them to imprisonment for life, against which they have preferred criminal ap peal No. 1740 of 2001 (old No. 620 of 1994 ). Rest of the two accused/appel lants Prakasho and Ramesh, where not found guilty of any of the charges and were acquitted. This criminal appeal was filed in the year 1994 before the Allahabad High Court wherefrom it is received by transfer to this Court under Section 35 of U. P. Reorganisation Act, 2000, for its disposal. We heard learned counsel for the parties and perused the entire record.
(3.) BEFORE further discussions, it is necessary to mention the ante mortem injuries found on the person of Smt. Kusum Thapa. Dr. Kuldeep Dutta (P. W. 3) conducted autopsy on the dead body and prepared post mortem exami nation report (Ext. A-2 ). According to the Medical Officer, following ante mortem injuries were found: 1. Incised wound 6cm x 1 cm lat eral to an outer angle of left eye muscle deep. 2. Incised wound 10cm x 5cm on medial aspect of right forearm just below elbow. 3. Incised wound 3cm x 2cm x ab dominal cavity deep on right side liver incised with blood in ab dominal cavity. 4. Incised wound 9cm x 4cm on left side of chest with cut in heart. 9cm below collar bone. On internal examination, two in cised wounds were found in the region of thorax and three incised wounds were found in the abdomen. P. W. 1 Shivraj is an eye-witness and informant, who lodged the First Information Report (Ext. A-1 ). He has stated on oath that deceased (Kusum Thapa) was his wife. He further states that on 04-06-1990, at about noon, he alongwith his brother Sandeep, Ajay Singh and Mohabbat Singh was sitting in courtyard of his house when Smt. Kusum Thapa (deceased) went to a near by canal with her cow so that the same may have water. Suddenly, ac cused/appellants, Babita, Rukmani and Jhandu reached there in a Maruti Van registration No. HYG 663, which was being driven by accused Ramesh. P. W. 1 Shivraj further states that Smt. Prakasho came out of her house at that time and pointed at Kusum Thapa that she is the lady who quarreled with her. On this, accused/appellants Babita, Rukmani, who were armed with knives, started giving blows with the weapon on the person of Smt. Kusum Thapa. He further states that on hearing the shrieks of Kusum Thapa, he saw the two girls (accused/appellants), named above, striking blows with knives on the person of Kusum Thapa while third ac cused Jhandu armed with revolver, was standing at some distiance. He further states that Jhandu (one of the accused) challenged him not to dare to come to the rescue of the deceased. This witness further stated that 4-5 days before said incident, accused Smt. Prakasho had a quarrel with deceased Smt. Kusum Thapa of which a report was got registered by both the sides in Police Station Cantt, Dehradun. He further stated that to save his wife, he alongwith his brother Sandeep and Ajay Singh and Mohabbat Singh, went inside his house and came out with 'lathies' and 'dandas' (rods ). On this, the accused persons left Kusum Thapa injured and fled away in a Maruti Van (registration No. HYG 663 ). He further stated that meanwhile police came and Kusum Thapa (deceased) was taken in a jeep to the hospital, where she succumbed to the injuries received by her in the incident. P. W. 1 Shivraj further states that thereafter he lodged the First Infor mation Report (Ext. A-1) on the very day i. e. 04-06-1990, at about 13:30 hrs. with the police station Cantt, Dehradun. This witness has stated that witness Mohabbat Singh has since died.;