- (1.) THIS appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter for brevity referred as Cr. P. C.), is directed against the judg ment and order dated 19-02-1988, passed in Sessions Trial No. 04 of 1986, whereby learned Sessions Judge, Dehradun, has convicted appellant Babulal under Section 302 Indian Pe nal Code, 1860 (herein after referred as I. P. C.) and sentenced him to imprisonment for life.
(2.) WE heard learned counsel for the appellant and learned Government Advocate and perused the entire record. Prosecution story in brief is that Surendra Singh (deceased), R/o village Nahad, was transporting boulders in his tractor trolley at the house of one Bhupendra Singh and Pratap Singh. On 25-10-1985, after making two rounds in the morning, he came back in the third round to pick up the boulders along with Prem Singh (P. W. 3), driver of the tractor, and labourers Satto (P. W. 2) and one Pappu, from the field of accused/appellant Babulal. It was 10:30 A. M. when Surendra Singh wanted to park the tractor in the field of Babulal so that the boulders may be lifted conveniently. Accused Babulal had objection to this. He apprehended that this would cause damage to the boundary wall in the field. When Surendra Singh (deceased) with his driver Prem Singh and labourers at tempted to move the tractor from the road towards the field of Babulal, he came out from his house with 'basula' (a sharp edged equipment used generally by carpenters and villagers to make small pieces of wood) in one hand and a piece of wood on the other. Surendra Singh (deceased) insisted to take tractor to the field while Babulal stuck on not permitting to do so and they started quarrelling. Ac cused/appellant Babulal, then gave a blow with BASULA on the neck of Surendra Singh, who fell down on the ground. Before P. W. 3 Prem Singh, driver, Labourer Satto (P. W. 2) and Pappu, could reach for rescue of Surendra Singh, Babulal further in flicted 2- 3 blows of BASULA on Surendra Singh and ran towards his house. Surendra Singh died on the spot. His nephew Raj Pal Singh (P. W. 1), got the First Information Report (Ext. A-1), scribed through one Rishipal Singh and lodged the same at about 1:30 PM. with Police Station-Sahaspur, which is at a distance of 17 Kms. away from the place of occurrence. Constable Ram Swaropp (P. W. 8) prepared check report (Ext, A-3) on the basis of First Informa tion Report (Ext. A-1) and made necessary endorsement in the general di ary, extract of which is Ext. A-14. Sub Inspector J. V. Badgoti (P. W. 11), who was busy with Himalayan Car rally, re ceived the papers from the police sta tion at about 4:00 P. M. and proceeded towards the place of occurrence. He took in his possession the dead body of Surendra Singh and prepared inquest report (Ext. A-7), sketch of dead body (Ext. A-8), police form No. 13 (Ext. A-9), letters (Ext. A-10 and Ext. A-11) to Chief Medical Officer, requesting for post mortem examination and sent the dead body in mortuary, for post mortem examination in a sealed cover with Constable Hari Singh and Consta ble Satey Singh. Meanwhile, the Inves tigating Officer collected simple soil and blood stained soil in containers (Ext. 8 and Ext. 9) and prepared memo (Ext. A-12 ). He further took into possession pair of shoes of the deceased, f6und at the spot and handed over the same to Raj Pal Singh, nephew of the deceased and prepared memo (Ext. A-13 ). By then it was night and further investiga tion was made next day. The Investigat ing Officer, recovered BASULA-Ext. 1 (a sharp edged equipment, used by carpenters and villagers) and prepared memo (Ext. A-6 ). He further recorded the statement of witnesses including that of Bala Devi (P. W. 4,) on 26-10-1986. He also prepared site plan (Ext. A-15 ). On the same day, statements of witnesses Satto (P. W. 2) and Pappu, were recorded by the Investigating Of ficer. He further recovered blood stained clothes and prepared memo (Ext. A-5 ). The/blood-stained articles were sent for chemical examination on 30-11-1985. On completion of the in vestigation, the Investigating Officer submitted the charge sheet (Ext. A-18) before the learned Magistrate. The learned Magistrate after giv ing necessary copies to the appellant, as required under Section 207 of Cr. P. C. , committed the case to the Court of Sessions for trial of the accused. The learned Sessions Judge, af ter hearing the prosecution and the defence, framed charge of offence pun ishable under Section 302 I. P. C. against the appellant Babulal that he commit ted murder of Surendra Singh in village Nahad, District Dehradun on 25-10-1985 at about 10:30 A. M. The accused/appellant Babulal, pleaded not guilty and claimed to be tried. Where after, before the trial court, prosecution got examined in all twelve witnesses, namely, P. W. 1 Rajpal Singh, informant, P. W. 2 Satto, labourer and eye-witness, P. W. 3 Prem Singh, tractor driver and eye-witness, P. W. 4 Bala Devi, third eye-witness, P. W. 5 Dr. M. K. Dwivedi, who conducted autopsy on the dead body and prepared post mortem exami nation report, P. W. 6 Pratap Singh, P. W. 7 Constable Hari Singh (who took the dead body in a sealed condition for post mortem examination), P. W. 8 Con stable Ram Swaroop (who prepared check report), P. W. 9 Vikram Singh, P. W. 10 Bhupendra Singh, P. W. 11 Sub-Inspector J. V. Badgoti (Investigating Officer) and P. W. 12 Constable Dharampal. All oral and documentary evidence was put to the accused person by the trial court, as required under Section 313 of Cr. P. C. in reply to which, he submitted that when Surendra Singh (deceased) insisted on taking tractor to his (accused' s) field, which would have caused damage to his crop and bound ary wall in the field, he (accused) did not permit it, Surendra Singh grappled with him and tried to throttle his neck. However, he could not explain how the deceased got injuries of 'basula' and alleges that he has been falsely impli cated in the crime. Learned Sessions Judge, after hearing both the sides, found the accused Babulal guilty of of fence punishable under Section 302 of I. P. C. and accordingly convicted him. After hearing on sentence, learned Ses sions Judge, sentenced accused/appel lant to imprisonment for life. Aggrieved by said judgment and order dated 19-02-1988, this appeal was filed by the convict before the Allahabad High Court on 24-02-1988. The appeal is received by transfer to this Court under Section 35 of U. P. Re-organisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here the ante mortem injuries found on the person of Surendra Singh (deceased ). P. W. 5 Dr. M. K. Dwivedi, Medical Officer who conducted autopsy on the dead body of deceased Surendra Singh on 26-10-1985 at 2:00 P. M. and prepared the post mortem examination report (Ext. A-2), recorded following ante mortem injury on the person of the deceased : 1. Multiple incised wound in an area of 10cm x 12cm on left side of face extending backwards to the neck, of the diameters of 6cm x 21/2 cm to 2cm x 1/2 cm x tis sue deep. 2. Incised wound 5cm x 5cm x tis sue deep, one inch below injury No. 1. 3. Incised wound 7cm x 3cm x tis sue deep. 1 cm below injury No. 2. 4. Incised wound 6cm x 3cm x tis sue deep on front of left shoulder. On internal examination of the dead body, the membranes and brain were found congested, both the lungs found pale, both chambers of heart were empty and weighed 160 grams. The stomach was found containing 4 ounces of food in the process of diges tion, small intestine was empty and large intestine contained faecal matter and gases. Liver, pancreas, spleen and kidneys were found pale. Bladder was empty. In the opinion of Dr. M. K. Dwivedi (P. W. 5), the cause of death was shock and haemorrhage, as a re sult of ante mortem injuries, P. W. 3 Prem Singh, the tractor driver, FW. 2 Satto, a labourer and P. W. 4 Bala, sister of the deceased are the eye-witnesses of the incident. All the three have stated that Surendra Singh (deceased) was transporting boulders from the field of appellant Babulal, which had been sold by him. Accord ing to the witnesses, it was about 10:30 in the morning when in the third trip, Surendra Singh came to take the boul ders in a tractor trolley. The eye witnesses, state that since boulders were heavy, Surendra Singh (deceased) wanted that the tractor should be per mitted to be taken to field while the ac cused insisted to park the tractor on the road only. (This fact that accused de nied permission, as he apprehended damage to the crop and boundary wall is also admitted to the accused in his statement under Section 313 of Cr. P. C. ). P. W. 3 Prem Singh, the tractor driver, P. W. 2 Satto, labourer and P. W. 4 Bali, sister of the deceased, who were working in the near-by village, state that when Surendra Singh and accused started quarrelling over the issue of tak ing the tractor to the field of Babulal, the latter who was armed with BASULA (a sharp edged equipment used by car penters and villagers to cut the wood pieces) hit on the neck of Surendra Singh and when Surendra Singh fell down, he further inflicted 2-3 blows on the person of the deceased. The state ments of the three eye-witnesses, get corroboration from the ante mortem in juries, narrated above, found by P. W. 5 Dr. M. K. Dwivedi, at the time of post mortem examination. There are as many as four incised wounds. The in cident is of daytime. The presence of witnesses is natural and trustworthy. P. W. 2 Satto and P. W. 3 Prem Singh are not related or interested eye-witnesses nor had they any enmity with the ap pellant. In the circumstances, the ocu lar evidence, as narrated by the above three eye-witnesses, is reliable and can not be disbelieved. That being so, we have no hesitation in holding that the prosecution has been successful in proving that appellant labulal inflicted the injuries with BASULA on the per son of the deceased, which resulted in his death.;