- (1.) PRAFULLA C. Pant, J. These two appeals have arisen out of the same judgment and order dated 04-11 -1985, passed by the then learned Special Judge/additional Sessions Judge, Nainital, whereby in Sessions Trial No. 194 of 1983, accused/appel lants Prem Singh, Phool Singh @ Phula S/o Chotey and Madan Singh, have been convicted under Section 396 of Indian Penal Code, 1860 (for brevity herein-after I. PC.) and each one of them has been sentenced to imprison ment for life. However, the said three were not found guilty of the offence pun ishable under Section 412 of I. P. C. Ac cused / respondents Phool Singh S/o Anup Singh and Moti Singh, have not been found guilty by the trial court, of any of the charges of offences punish able under Section 396, 147,323 /149 of I. P. C. Appellants Prem Singh, Phool Singh @ Phula S/o Chotey and Madan Singh have preferred appeal under Sec tion 374 (2) of Code of Criminal Proce dure, 1973 (for brevity herein-after Cr. P. C.) against their conviction and sen tence awarded. While the State has pre ferred appeal under Section 378 (3) of Cr. RC. against the same impugned judg ment and order as the trial court has not convicted the said accused / appellants under other offences except 396 I. P. C. The State appeal is also against the fail ure on part of trial court in convicting accused / respondents Phool Singh S/o Anup Singh and Moti Singh of the of fence punishable under Section 396,147,. 323/149 I. P. C.
(2.) THE prosecution story, in brief, is that on the intervening night of 13th and 14th June, 1983, at about 1:30 A. M. , five miscreants, one armed with sword and others with lathies, entered in the house of Mangal Singh (one of the deceased), resident of Roshanpur and started beating him. Due to the shouts, his wife Satya Kaur (another deceased) raised alarm, on which she too was beaten by the miscreants. P. W. 2 Prakash Kaur, sister of Mangal Singh then came to the rescue of his brother and sister-in-law, on which injuries were caused by the miscreants on her person also. Mean while, Mangal Singh's servant Chet Ram ran towards neighbour's house and sought their help. Immediately, neigh bour Jagir Singh alongwith P. W. 3 Tara Singh- the informant, P. W. 4 Sohan Singh, with torches and lathies, came to the house of Mangal Singh. THEy also saw miscreants causing injuries to above three persons namely Mangal Singh, Satya Kaur and Prakash Kaur. THE mis creants on getting challenge from the wit nesses, fled from the scene with gold ear-rings and a silver 'pajeb' (silver foot-rings) of Prakash Kaur. THE wit nesses could see the miscreants in the light of torches. P. W. 3 Tara Singh, an eye-witness, got the First Information Report (Ext. A-2) lodged with the Police Station- Gadarpur, on the very day i. e. 14-06- 1983 at 3:35 A. M. THE witnesses took all the three injured to near-by hospital in Gadarpur from where they were referred to Civil Hospital, Haldwani. Mangal Singh and Satya Kaur, succumbed to the injuries and died. Dr. S. Tandon (PW. 13), con ducted post mortem examination of Mangal Singh on 14-06-1983, at about 1:10 P. M. and found following ante mortem injuries : 1. Incised wound 7cm x 1. 5cm x bone deep. The frontal bone had been broken in pieces and the brain matter was coming out. 2. Incised wound 6cm x 1. 5cm x bone deep on right side of head. The frontal bone had been bro ken and the brain matter was coming out. 3. Incised wound 6cm x 1. 5cm x bone deep on right side head. Cause of death of Mangal Singh, according to the Medical Officer (P. W. 13 Dr. S. Tandon) was coma caused by head injuries. The said Medical Officer prepared post mortem examination re port Ext. A-47. Post mortem examination on dead body of Satya Kaur was conducted on 15-03-1983, at about 5:30 RM. by P. W. 1 Dr. S. R Singh, who prepared post mortem examination report (Ext. A-l) and recorded following ante mortem in juries on her person : 1. Stitched wound 8cm in length midline frontal region obliquely placed more on left side. Part of the bones of frontal region miss ing. 2. Stitched wound 3cm in length of right parietal bone. 3. Traumatic swelling with deformity 8cm x 4cm with fracture of both bones of right forearm. 4. Lacerated wound 1cm x 0. 5cm x skin deep, front of right leg.
(3.) STITCHED wound 1cm in length front of left leg middle part. Contusion 2cm x 1 cm top of right shoulder. On internal examination, both frontal bones were found fractured. Accord ing to the Medical Officer (P. W. 1 Dr. S. R Singh), cause of death of Satya Kaur. was coma as a result of ante mortem injury No. 1. 5. Injuries on the person of P. W. 2 Smt. Prakash Kaur, were examined on 14-06-1983, at about 6:15 A. M. by Dr. D. P Joshi, who prepared the injury re port (Ext. A-28 ). The said injury report shows following injuries on the person of Prakash Kaur : 1. lacerated wound 4cm x 2cm x scalp deep over right lateral side of head, 6cm above right ear. Bleeding present. The injury was kept under observa tion and X-ray of skull was advised by the doctor. (Genuineness of this report was admitted by the defence ). During in vestigation, after recording the statement of Balbir Singh (P. W. 5) and Gulzar Singh (P. W. 6), accused Prem Singh, Phool Singh @ Phula S/o Chotey, Phool Singh S/o Anup Singh, Moti Singh and Madan Singh, were apprehended by the police who suspected them to have com mitted dacoity. After arrest, their faces were kept covered and an identification test parade was held on 19-09-1983, in sub jail, Haldwani, before P. W. 18 Mazid Ali the then Sub Divisional Magisrrate in which P. W. ,3 Tara Singh correctly iden tified accused Phool Singh @ Phula S/ o Chotey (appellant), accused Phool Singh S/o Anup Singh and accused Madan Singh (appellant ). P. W. 4 Sohan Singh correctly identified accused Prem Singh (appellant), Phool Singh @ Phula S/o Chotey (appellant), Phool Singh S/ o Anup Singh and Madan Singh (appel lant ). P. W. 2 Prakash Kaur, the injured witness, correctly identified accused Prem Singh (appellant), Phool Singh @ Phula S/o Chotey (appellant), Phool Singh S/o Anup Singh and Moti Singh. Apart from them, witness Jagir Singh also correctly identified the said four who were identified by Prakash Kaur (P. W. 2 ). 6. During investigation, the blood stained clothes, rods (used in the crime), torches (in the light of which witnesses saw the crime), were taken into posses sion by the Investigating Officer and nec essary recovery memos Ext. A-4 to Ext. A-9, were prepared. Before aforemen tioned, post mortem examination was conducted on the dead bodies, inquest reports Ext. A-30 and Ext. A-37, sketches of the dead bodies Ext. A-32 and Ext. A-42, police form No. 13 (Ext. A-34 and Ext. A-43), letters to the Chief Medical Officer requesting for post mortem examination (Ext. A-31 and Ext. A-40), were also got prepared by the In vestigating Officer. Sites plans Ext. A-16 and Ext. A-17 were also prepared before the charge-sheet (Ext. A-19) was submit ted before the concerned Magistrate. Necessary endorsement in the general diary, were also made from time to time and extracts of the same are Ext. A-12, Ext. A-13, Ext. A-20 to Ext. A-27, Ext. A-33, Ext. A-44 and Ext. A-45.;