- (1.) PRAFULLA C. Pant, J. 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 19-10-1982, passed in Sessions Trial No. 6 of 1982, whereby the then learned Sessions Judge, Almora has convicted appellants Trilochan alias Tulsia and Hari Dutt un der Section 302 of Indian Penal Code, 1860 (herein after referred as I. P. C.) and appellant Anil Kumar under Sec tion 302 read with Section 34 I. P. C. and sentenced each of them to imprison ment for life.
(2.) WE heard learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that Khimanand (deceased) and his brother P. W. 1 Chintamani had a shop of gro cery and tea stall at Shashikhal Bazar within the limits of village Khumar, Tehsil Ranikhet, District Almora. Ac cused/appellant Trilochan alias Tulsia had also a shop in said market in which he used to sell sweetmeat. According to the prosecution, during the period of Diwali in the year 1981, P. W. 1 Chitamani and his brother Khimanand (deceased) started selling sweets in their shop after purchasing the same from Ramnagar. This affected the business of accused Trilochan and on 25-10-1981 he objected to Chintamani and Khimanand and asked them not to cause economic loss to him. But they did not pay any heed to it. Accused/appellant Hari Dutt is brother of ac cused/appellant Trilochan. He (Hari Dutt) used to work in Deepak Restau rant in Delhi. The third accused/appel lant Anil Kumar had also some business in Delhi. When P. W. 1 Chintamani and his brother did not pay any heed to the objection of Trilochan, he closed his shop on 28-10-1981 and came back on 30-10-1981 along with his brother Haridutt and a third person (Anil Kumar ). All the three travelled on said date from Ramnagar to Shashikhal in bus registration No. UPD 592 of the 'kumaon Adarsha Motor Transport'. They reached Shashikhal on 30-10-1981 at about 3:30 P. M. All of them alighted from the bus and went towards shop of Khimanand and Chintamani which was by the side of the road. Out of the three appellants, Trilochan and Harri Dutt were armed with knives. When they reached at the stall of Khimanand, P. W. 4 Kunti Devi and P. W. 5 Jogdev, were having tea in the said shop. As soon as the three accused reached in the shop, accused Trilochan and the third person (Anil Kumar) got hold of Khimanand and dragged him out. Accused/appellants Trilochan and Hari Dutt thereafter started inflicting knife blows on the person of Khimanand. On this, P. W. 4 Kunti Devi asked Trilochan not to do so and she intervened. However, she received knife cut in her hand. Thereafter accused persons further dragged Khimanand from the shop to the road. Meanwhile, due to the shouts, P. W. 1 Chintamani (brother of Khimanand) who was tak ing rest in the inner room of the house, came out and also witnessed the incident. P. W. 1 Chintamani made attempts to save Khimanand but accused Trilochan and Hari Dutt wielded knives and made Chintamani run away from there. It is alleged by the prosecution that all the accused persons thereafter threw the dead body of Khimanand by the side of road and again forcibly boarded in the same bus registration No. UPD 592. They travelled through said bus about half-a-kilometer ahead and got down from it. P. W. 1 Chintamani thereafter lodged First In formation Report (Ext. A-l) with near est reporting police outpost, Maulikhal, where P. W. 3, Constable Balwant Singh prepared check report (Ext. A-4) of the First Information Report. He further made entry in the general diary (a copy of which is extract Ext. A-5 ). P. W. 3 Con stable Balwant Singh along with Con stable Maheshanand came to the spot and kept the dead body of Khimanand on the roof of shop of his brother Chintamani. They guarded it till the arrival of P. W. 8 Sub-Inspector Moti Ram Sharma on 30-10-1981. On arrival of said Sub-Inspector, inquest report (Ext. A-9) of dead body was prepared in the presence of witnesses. Blood stained clothes (of the deceased) Ext. 1, 2 and 3, were taken into possession by the police. Cash amounting to Rs. 305/-was also found in the pocket of the de ceased, which was handed over to P. W. 1 Chintamani (informant ). Recovered clothes were sealed and memo (Ext. A-2) was prepared. The police also pre pared sketch of the dead body (Ext. A-10), police form No. 13 (Ext. A-11), chalan of dead body (Ext. A-12), sam ple seal (Ext. A-13) and letter to Chief Medical Officer for post mortem exami nation (Ext. A-14 ). The dead body was sent for post mortem examination to Ranikhet. P. W. 2 Dr. VS. Pal conducted autopsy on 02-11-1981 in Ranikhet. P. W. 8 Moti Ram Sharma, the Investi gating Officer also took the simple soil and blood stained soil from the place of incident and prepared memo (Ext. A-15) and site plan (Ext. A-16 ). Later on, the investigation was transferred to P. W. 12 Raj Pal Singh, Station House Officer of Police Station Ranikhet. He arrested accused Anil Kumar. Meanwhile, ac cused Trilochan alias Tulsia surrendered before the court. As against accused Hari Dutt, the Investigating Officer got issued orders (Ext. A-28) of attachment of his movable property to compel him to surrender. After the arrest of Anil Kumar since he was not a known per son to the witnesses, he. was kept 'baparda (face covered) and was put to the identification. The test identifica tion parade was conducted on 02-02-1982 before P. W. 7 Shri U. D. Chaube, the then Sub-Divisional Magistrate, Bara Mandal, Almora. After conclusion of the investigation, charge sheet (Ext. A-31) was submitted against the ac cused Trilochan alias Tulsia and Hari Dutt along with separate charge sheet (Ext. A-32), filed against accused Anil Kumar for their trial in connection with the offence punishable under Section 302 and 201 I. P. C. The Munsif/judicial Magistrate Ranikhet on receipt of the charge sheets, after providing the necessary copies to the accused persons, commit ted the case to the Court of Sessions, Almora. Learned Sessions Judge, after hearing the prosecution and defence framed charge under two heads against accused Trilochan alias Tulsia and Hari Dutt in respect of the offence punish able under Section 302 and 201 I. P. C. As against accused Anil Kumar charge of two heads was separately framed in respect of the offences punishable un der Section 302 read with Section 34 I. P. C. and the one punishable under Section 201 I. PC. All the three accused pleaded not guilty and claimed to be tried. On this, prosecution got exam ined P. W. 1 Chintamani informant and eye-witness, P. W. 2 Dr. V. S. Pal, who conducted autopsy on the dead body, P. W. 3 Constable Balwant Singh of the police outpost, Maulikhal, who received the First Information Report (Ext. A-1) and prepared the check report (Ext. A-4) and made endorsement in the gen eral diary (Extract of which is Ext. A-5), P. W. 4 Kunti Devi, the star eye-wit ness, P. W. 5 Jogdev (another eye-wit ness), P. W. 6 Bhagwat Prasad, Conduc tor of the bus registration No. UPD 592, P. W. 7 U. D. Chaubey, the then Sub-Divisional Magistrate, before whom test identification parade was conducted for accused Anil Kumar, P. W. 8 Sub-Inspec tor Moti Ram Sharma, who initially in vestigated crime, P. W. 9 Constable Trilochan Singh and P. W. 10 Kamla Kant, both of whom have adduced the evidence that the accused Anil Kumar was kept 'baparda (face covered ). Thereafter, prosecution got examined P. W. 11, Head Constable Nanda Ballabh, who is also witness of the same fact that the accused Anil Kumar was kept 'baparda' (face covered) be fore the test identification parade, and P. W. 12 Station Officer Raj Pal Singh, who concluded the investigation. The oral as well as documentary evidence was put to the accused persons under Section 313 of Cr. P. C. by the trial court in reply to which the accused persons alleged that the evidence adduced against them is wrong and they have been falsely implicated. Accused Anil Kumar further alleged that his photo graphs were shown to the witnesses be fore test identification parade. After hearing the prosecution and the counsel of accused persons, learned trial court found accused persons Trilochan alias Tulsia and Hari Dutt guilty of the charge framed against them in respect of the offence punishable under Section 302 I. P. C. Accused Anil Kumar was found guilty of offence punishable un der Section 302 read with Section 34 I. P. C. , and after hearing them on sen tence each one of them was sentenced to imprisonment for life. (However, all the three accused were acquitted of charge of offence punishable under Section 201 of I. P. C. ). Aggrieved by their conviction and sentence, awarded against them, all the three preferred ap peal from jail against said judgment and order dated 19-10-1982, before Allahabad High Court in the year 1983 from where this appeal has been trans ferred to this Court under Section 35 of U. P. Re-organisation Act, 2000, for its disposal. Meanwhile the appellants got released on bail from the Allahabad High Court.
(3.) BEFORE further discussions, it is pertinent to mention here the ante mortem injuries found at the time of post mortem examination by P. W. 2 Dr. V. S. Pal, who prepared post mortem examination report (Ext. A-3) on 02-11-1981 at 10:00 A. M. Following ante mortem injuries were recorded by said Medical Officer on autopsy of the dead body of the deceased Khimanand : 1. Punctured wound (incised) 2. 5cm x 0. 5cm chest wall deep, oblique down on medial just be low injury of right scapula on right back. 2. Punctured wound (incised) 2. 3cm x 4cm x chest wall deep on left chest 10cm outer to left nipple at 3'o clock position, ver tical. On internal examination, the Medi cal Officer found 3cm long wound on left chest wall corresponding to injury No. 2 and a wound on right chest wall corresponding to the injury. He found pleura cut corresponding to injuries both sides. It is also recorded in Ext. A-3 that there was blood in trachea. Also, lobe of right lung had an incised cut measuring 3cm x 2cm and the upper lobe had an incised cut 2cm long. Peri cardium was also congested. Injured lobes were partially collapsed. Right and left pleural cavities contained 2 pint and 1 pint blood respectively. In the opinion of the Medical Officer, cause of death was shock and haemorrhage due to ante mortem injuries. According to P. W. 2 Dr. V. S. Pal, death had occurred 2-3 days before post mortem examina tion. In all, there are four eye-wit nesses of the incident. P. W. 1 Chintamani (an eyewitness), is brother of the deceased. He states that he along, with his brother Khimanand used to run a grocery shop and tea stall at Shashikhal for several years. Accused Trilochan alias Tulsia had also his shop of sweetmeat in Shashikhal Bazar. He used to harbour enmity with him and his brother Khimanand. Accused Hari Dutt is brother of accused Trilochan. This witness further states that on one earlier occasion, Trilochan quarreled with him and he (the witness) made a complaint under Section 107, 116 Cr. P. C. before Sub- Divisional Magistrate but said case resulted in compromise between the parties on 30-09-1981. However, three days before Diwali, in the year 1981, according to this wit ness, he, purchased sweets from Ramnagar and started selling in Shashikhal. On this, on 25-11-1981, accused Trilochan objected and told that by selling sweets, loss is being caused to him (Trilochan ). Again on 27-10-1981, accused Trilochan quarreled on this issue and thereafter on 28-11-1981, accused closed his shop and returned on 30-11-1981 at about 3:00 P. M. On that day, P. W. 1 Chintamani says that his brother Khimanand (de ceased) was sitting in his shop. He fur ther states that it was a weekly market day and witnesses FW. 4 Kunti Devi and P. W. 5 Jogdev were taking tea in the shop. This witness further states that he was taking rest in the third room of the shop. Suddenly, he heard noise and came out. P. W. 1 Chintamani further narrates that he saw that accused Trilochan and his brother accused Harii Dutt, were giving blows of knives on the person of Khimanand (deceased) while third person had caught hold of the de ceased. The witness further states that P. W. 4 Kunti Devi, who attempted to save Khimanand, got knife cut in her hand. P. W. 5 Jogdev ran away after he saw knife blows being inflicted on Khimanand. Jogdev left his articles in the shop, which he had purchased from the market. P. W. 1 Chintamani further describes the incident that all the three accused then dragged Khimanand up to the motor road and left him by the side of the road. This witness further states that he got frightened on seeing the knives in the hands of accused persons. Lastly, P. W. 1 Chintamani says that af ter the incident, he lodged First Infor mation Report (Ext. A-1) with the reporting outpost, Maulikhal.;