- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judg ment and order dated April 21, 1984, passed in Sessions trial No. 94 of 1983, by the then learned Additional Sessions Judge/special Judge, Nainital, whereby appellants Kikkar Singh and Khushal Singh have been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.) and each one of them has been sentenced to imprisonment for life, and the third appellant Girdhari has been convicted under Section 302 read with Section 34 of the I. P. C. , and is also sen tenced to imprisonment for life.
(2.) WE heard learned counsel for the parties and perused the entire evi dence on record. The prosecution story, in brief, is that about five days before the date of incident, when accused/appellant Kikkar Singh was passing through the field of Dalip Singh (deceased), the lat ter stopped him on which both ex changed heated words. Accused. / ap pellant Kikkar Singh left on that day saying that he would see that who stops him from passing through the field. Thereafter, on 11-01-1983, at about 9:30 A. M. , when Dalip Singh (de ceased) and his father P. W. 1, Jalla Singh were returning from the house of Nihal Singh, near the field of Sone Lal, Jalla Singh heard cries of his son Dalip Singh who was following him at some distance. P. W. 1, Jalla Singh looked back and saw that accused/appellant Girdhari had caught hold of his son Dalip Singh and accused/appellants Kikkar Singh and Khushal Singh were giving axe blows on head and back of his son. He raised alarm on which wit nesses P. W. 3, Kakka Singh, P. W. 4, Karam Singh and P. W. 5, Bakhtawar Singh reached there. After dropping Dalip Singh dead on the spot, accused/appellants made good their escape. P. W. 1, Jalla Singh first went to one Cheema Sahib to report the matter and thereafter made arrangement of con veyance and went to lodge the First In formation Report (Ext. A-1) with the police station Kichcha. Before lodging the First Information Report (hereinaf ter referred as F. I. R.) he got it typed in Tehsil Kichcha. The report was lodged at 13:30 hours on the same day i. e. 11-01-1983. P. W. 6, Head Constable Hari Nandan registered the crime and pre pared check report (Ext. A-8) of the F. I. R. He further made necessary en dorsement in the general diary (a copy of which is Ext. A-9 ). P. W. 8, Sub In spector B. K. Juyal, investigated the crime and recorded the statement of witnesses. He got the inquest report (Ext. A-3) prepared at the spot. He fur ther prepared photo sketch of the dead body (Ext. A-10), Police form No. 33 (Ext. A-11), letter to the Chief Medical Officer requesting for the postmortem of the dead body (Ext. A-12), Police form No. 13 (Ext. A- 13), sample seal (Ext. A-14), site plan (Ext. A-15) and (Ext. A-16 ). The Investigating Officer also took the blood stained soil and simple soil and prepared memo (Ext. A-4 ). After arrest of the accused/appellants, the Investigating Officer got re covered the axe used in the crime and prepared recovery memo (Ext. A- 6 ). The postmortem on the dead body was conducted by P. W. 2, Dr. S. Tandon, who prepared the postmortem exami nation report (Ext. A-2 ). After comple tion of the investigation, charge sheet (Ext. A- 18) was submitted by the Inves tigating Officer against all the three ac cused/appellants in the court. The Magistrate concerned after receiving the charge sheet registered the same and after providing necessary copies of the papers to the accused per sons, as required under Section 207 of the Cr. P. C. , committed the case to the court of Sessions for trial. The learned Sessions Judge, after hearing the pros ecution and the defence, framed charge of offence punishable under Section 302 of the I. P. C. against accused/ap pellants Kikkar Singh and Khushal Singh, and one that of under Section 302 read with Section 34 of the I. P. C. against the accused/appellant Girdhari. All the three accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined P. W. 1, Jalla Singh, informant, eye wit ness and father of the deceased; P. W. 2, Dr. S. Tandon, who conducted the au topsy on the dead body and prepared postmortem examination report (Ext. A-2); P. W. 3, Kakka Singh, an eye-witness; P. W. 4, Karam Singh, another eye wit ness; P. W. 5, Bakhtawar Singh, yet an other eye witness; P. W. 6, Head Consta ble Hari Nandan, who prepared the check report of the F. I. R. ; P. W. 7, Con stable Dharam Pal, who had taken the dead body for postmortem examination and P. W. 8, Sub Inspector B. K. Juyal, the Investigating Officer. The oral as well as documentary evidence was put to the accused persons under Section 313 of the Cr. P. C. , in reply to which all the accused persons alleged that they have been falsely implicated in the case due to enmity. No evidence in defence was adduced by the accused persons. The trial court, after hearing the argu ments of prosecution and that of the defence, found all the three accused guilty of the charge framed against them and convicted accused/appel lants Kikkar Singh and Khushal Singh on the charge of offence punishable un der Section 302 of I. P. C. , and accused /appellant Girdhari on the charge of of fence punishable under Section 302 read with Section 34 of the I. P. C. , and after hearing them on sentence, sen tenced each of them to imprisonment for life. Aggrieved by said judgment and order dated 21-04-1984, passed by the trial court, the convicts have preferred this appeal before the Allahabad High Court in the year 1984 from where it has been received by transfer to this Court under Section 35 of the U. P. Reorganization Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here, the ante mortem injuries found by P. W. 2, Dr. S. Tandon, at the time of conducting post mortem examination on 12-01 -1983, at about 3:00 P. M. The postmortem ex amination report (Ext. A-2) shows fol lowing ante mortem injuries on the per son of the deceased: i) Incised wound 12 cm x 1. 5cm x bone deep on the back of the skull with evidence of fracture of bone into pieces with the evi dence of brain matter coming out of the wound. ii) Incised wound 5cm x 1 cm x muscle deep on the upper part of the back of the neck. iii) Incised wound 8cm x 1 cm x bone deep on the back of skull, 2 cm above injury No. 2. iv) Incised wound 10 cm x 1 cm x bone deep. The wound was on the back of skull 1 cm above in jury No. 3 and extending from the back of the ear to the right side of the skull. v) Incised wound 5cm x IVs cm x bone deep on the back of the skull right side, and bone under neath the wound was fractured. All the injuries had clean cut margins. In the opinion of the Medical Of ficer, who conducted the postmortem examination, cause of death of the de ceased was coma as a result of the ante mortem head injury. P. W. 2, Dr. S. Tandon, further opined that deceased could have died on 11-01-1983, at about 9:30 A. M. There are as many as four eye witnesses of the incident in this case, namely P. W. 1, Jalla Singh, P. W. 3, Kakka Singh, P. W. 4, Karam Singh and P. W. 5, Bakhtawar Singh. P. W. 1, Jalla Singh has stated in his examination that some five days before the date of inci dent, when accused/appellant Kikkar Singh was passing through the field of this witness, his (witness's) son Dalip Singh (deceased) stopped him and told him that he would not permit him to pass through his field. In reply to this accused/appellant Kikkar Singh chal lenged' him that he would see who stops him from passing through the field. Five days thereafter, the witness states that at about 9:30 A. M. , he along with his son Dalip Singh, who was fol lowing him at some distance, were re turning from the house of Nihal Singh, when they reached near the field of Sone Lal, he (the witness) heard shrieks of his son Dalip Singh (deceased) on which he looked back and saw that accused /appellants Kikkar Singh and Khushal Singh were giving blows with axe on the head of Dalip Singh, who was caught held by accused/appellant Girdhari. P. W. 1, Jalla Singh further states that he shouted for help and on this the eye witnesses Kakka Singh (P. W. 3), Karam Singh (P. W. 4) and Bakhtawar Singh (P. W. 5) reached at the spot. According to this witness, Dalip Singh died of the injuries and on see ing the witnesses accused/appellants fled from the spot. This witness has also stated that he lodged the F. I. R. (Ext. A-1) with police station Kichcha on the very day. Before that he says that he went to one Cheema Sahib and there after went to Tehsil to get the report typed.;