- (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 24-04-1987, passed in Sessions Trial No. 16 of 1986, by the then learned Sassions Judge, Dehradun, whereby appellant Labha has been convicted and sentenced un der Section 302 of Indian Penal Code, 1860 (herein after referred as I. P. C.), to imprisonment for life.
(2.) PROSECUTION story in brief is that on 31-10-1985, at about 9:00 P. M. , P. W. 1 Amar Singh, the informant was coming along with P. W. 4 Jeet Singh from market to his house in Mohalla Bhatra, Kanwali Road, Dehradun. When Amar Singh (P. W. 1) reached near Gurudwara, he saw his son Umra (de ceased) standing there with accused Multana, Labha and Ranjit. They were quarrelling over repayment of Rs. 5 due from Multana to Umra. Accused Multana started hurling abuses at Umra. Meanwhile, accused Smt. Bachni, mother of accused Labha, ar rived there and said "umra DO KAUDI KA LADKA HAI. ISKO MITTI MAIN MILA DO. MAIN ISKI EENT SE EENT BAJA DUNGI". Thereafter ac cused Multana and Ranjeet, got hold of Umra and accused Labha drew big Unite and inflicted 3-4 blows on Umra. Injured Umra rushed towards his house pressing his abdomen by hand. How ever, he could not run too far and fell down. According to the prosecution story, the incident was also witnessed by P. W. 7 Birsa Singh @ Birkha. A tubelight was lighted from the electric pole on the road where the incident took place: Amar Singh (P. W. 1) and Jeet Singh (P. W. 4), took him to the hos pital, where doctor declared him dead. Amar Singh (P. W. 1), lodged the oral First Information Report on the very day at 10:40 P. M. in Police Station- Dehradun, which was recorded by Anand Pal Singh, Head Constable (P. W. 3) against the appellant Labha for alleged offence, punishable under Sec tion 302, 120 B of I. P. C. , who prepared check report (Ext. A-1 ). Head Consta ble Jagdish Prasad (P. W. 5), made necessary entry in the General Diary (Ext. A-5 ). Sub- Inspector Rajbir Singh (P. W. 8), the Investigating Officer pro ceeded for investigation. On 01-11-1985, the Investigating Officer (P. W. 8) took the dead body in his possession and prepared the inquest report (Ext. A-2) and also prepared other connected papers-Memo of recovery of soil (Ext. A-3), sketch of the dead body (Ext. A-10, police form No. 33 (Ext. A-11), and letter to Chief Medical Officer, Dehradun (Ext. A-12), requesting for post mortem examination. Dr. Ajay Kala (P. W. 2), on 01-11-1985 at 4:00 P. M. , conducted autopsy on the dead body and prepared post mortem exami nation report (Ext. A-4 ). Following ante mortem injuries were found on the dead body by said Medical Officer: 1. Punctured wound with clean cut margins 4cm x m x heart cavity deep, cutting the 6th rib pleura and apex of peri cardium and heart. 100 ml of blood in pericardia/ cavity, on the left side of front of chest 6cm below the left nipple, 1/2 cm away from nipple line. 2. Incised wound 2/2 cm x 1cm x 1cm deep as the outer part of back 5 cms below the posterior axillary fold. Punctured wound with clean cut margins 5cm x 2cm x 7cm deep on the back of chest directed up wards and anteriorly cutting the muscles of back, intercoastal muscles, pleura and piercing 2cm in the left upper lobe of lung in its lower part. A litre of fluid blood found in the thoracic cavity. In the opinion of Medical Officer, who conducted the post mortem exami nation, the cause of death was shock and haemorrhage as a result of ante mortem injuries. 3. After recording statements of the witnesses, the Investigating Officer also prepared the Site Plan (Ext. A-9 ). He submitted charge sheet (Ext. A-14) against all the accused/appellants-Ranjit Singh, Labha, Multana and Bachni on 20-11-1985. The concerned Magistrate after giving necessary copies to the ap pellant, as required under Sections 207 of Cr. P. C. , committed the case to the court of Sessions for trial of the ac cused. 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 Labha that he committed murder of Umra on 31-10-1985 at about 9:00 P. M. in Mohalla Bhatra, Kanwali Road, Dehradun. The accused/ appellant Labha, pleaded not guilty and claimed to be tried. Charge of of fence punishable under Section 302 read with Section 34 of I. P. C. was framed against other accused persons namely Bachni, Ranjeet and Multana. They too pleaded not guilty and claimed to be tried. Where after, before the trial court, prosecution got exam ined P. W. 1 Amar Singh-Informant, P. W. 2 Dr. Ajay Kala- who conducted the post mortem examination, P. W. 3 Anand Pal Singh (Head Constable), P. W. 4 Jeet Singh-eye witness, P. W. 5 Jagdish Prasad (Head Constable), and P. W. 6 Home Guard Vijay Kumar, P. W. 7 Bisra Singh- eye witness, P. W. 8 Sub-Inspec tor- Rajbir Singh (Investigating Officer) and P. W. 9 Ombir Singh- S. S. I. (The In vestigating Officer who submitted the charge sheet ). All oral and documen tary evidence was put to the accused persons by the trial court, as required under Section 313 of Cr. P. C. in reply to which, they submitted that they have been falsely implicated in the crime on account of enmity. Learned Sessions Judge, after hearing both the sides, found the accused Labha guilty of of fence punishable under Section 302 of I. P. C. , and accordingly convicted him. And after hearing him on sentence, learned Sessions Judge, sentenced him to imprisonment for life. Aggrieved by said judgment and order dated 24-04-1987, this appeal was filed by the convict before the Allahabad High Court on 05-05-1987. The appeal is received by this Court under Section 35 of U. P. Reorganisation Act, 2000, for its dis posal, from said High Court. (The other accused persons Bachni, Multana and Ranjeet were acquitted by the trial court on the ground that prosecution failed to establish if they had common intention with the appellant in commission of murder of the deceased ). We heard learned counsel for the appellant and learned Additional Government Advocate and perused the entire record.
(3.) P. W. 1 Amar Singh, is an eye witness and informant who lodged the oral First Information Report. He has stated that deceased (Umra) was his son. He further states that on the day of the incident, he along with Jeet Singh (P/w. 4) was coming from market to his house in Mohalla Bhatra, Kanwali Road, Dehradun. When he reached near Gurudwara, he saw his son Umra (deceased) standing there with accused Multana, Labha and Ranjit. They were quarrelling over re payment of Rs. 5 due from Multana to Umra. Meanwhile accused Smt. Bachni, mother of accused Labha, ar rived there and said "umra DO KAUDI KA LADKA HAI. ISKO M1tti MAIN MILA DO. MAIN ISKI EENT SE EENT BAJA DUNGI". Thereafter ac cused Multana and Ranjeet, got hold of Umra and accused Labha drew big knife and inflicted 3-4 blows on Umra. Injured Umra rushed towards his house pressing his abdomen by hand. How ever, he could not run too far and fell down. On seeing his son in an injured condition, Amar Singh (P. W. 1,) and Jeet Singh (P. W. 4) took him to the hospital, where doctor declared him dead. He has further stated that Jeet Singh (P. W. 4) is the son of his sister. P. W. 4 Jeet Singh is also an eye witness of the incident. He has stated that deceased (Umra) was his maternal uncle's (P. W. 1-Amar Singh's) son. He further states that on 31 -10-1985 at about 9:00 P. M. he along with Amar Singh (P. W. 1) was returning from mar ket. When they reached near Gurudwara, he saw that Labha, Ranjit Singh, Multana and Umra (deceased), were quarrelling over repayment of Rs. 5 due from Multana to Umra. Mean while, accused Smt. Bachni, mother of accused Labha, arrived there and ex horted him against the deceased. Ranjit and Multana, caught hold of Umra while Labha drew big knife and inflicted blows on Umra. He further states that he and Amar Singh (P. W. 1) started shouting. On this, all the four accused ran away. Injured Umra rushid towards his house and fell down on the road. There was tubelight lighted from the electric pole. He has further stated that he and Amar Singh (P. W. 1) took Umra to the hospital, where doctor declared him dead.;