Ravindra Nath Kakkar, J. - (1.) We have heard Shri Kshitij Shailendra, learned counsel for the appellants and Shri Anurag Mishra, learned A.G.A. representing the State.
(2.) The present criminal appeal has been filed against the judgment and order dated 22.11.1983 passed by Ist Additional Sessions Judge, Ghazipur in Sessions Trial No.125 of 1983 convicting the appellants under Section 302 read with 34 IPC and sentencing them to undergo life imprisonment.
(3.) The prosecution case in brief is that on the fateful night intervening 23/24.3.1982 deceased Ganesh Ram had gone to his field to guard his wheat crop, when accused appellants Rama Shankar and Raj Narain armed with lathis, Vijai Shankar with a knife and Paramhans with a spear took him by surprise and started assaulting with their weapons. On alarm being raised by victim Ganesh Ram, his son Ganga Bishun who was in the house and was awoke rushed to the field. Some other persons of the village, namely, Kamta Singh, Shyam Narain, Jagroop and Budhiram who too had also gone to their agricultural fields situate nearby also rushed to the place of occurrence. All these persons, including Ganga Bishun, the son of the deceased, on reaching near the place of occurrence, lit their torches and in torch light the accused-appellants were seen beating Ganesh Ram with the weapons they were armed with. These witnesses tried to apprehend the accused appellants but they fled away. They found injured Ganesh Ram was badly injured and lying on the ground in unconscious state. Ganga Bishun took his father to a nearby dispensary but he succumbed to his injuries. The dead body of the deceased was brought to village Khara and kept beneath a neem tree of Kailash Kushwaha in front of the house of the informant who then prepared a report of the incident and gave it to Baijnath, Chaukidar of the village to be taken to the police station Baresar which was at a distance of 7 km. for lodging a first information report. Baijnath in turn reached to the police station and made it over to head moharir Vijay Bahadur Singh who drew a check report (Ext. Ka-3) and registered the case against the accused-appellants vide G.D. No.6 at 6.10 a.m. on 24.3.1982. The copy of the relevant G.D. is Ext. Ka-4 on record. After registration of the case, Sub Inspector Shukrullah Khan, the then Incharge of police station swung into action and took investigation of the case in his hand. He along with police force reached village Khara and went to the place where dead body of Ganesh Ram was kept on a cot beneath neem tree of Kailash Kushwaha. The Investigating Officer took the dead body in his custody and after inspection prepared inquest report (Ext. Ka-6). He also prepared photo laash, challan laash and letter to Chief Medical Officer (Ext. Ka-6 to Ka-9) and thereafter sealed the dead body of the deceased and handed it over to constables Deen Dayal Pandey and Banarasi Yadav along with necessary papers to be taken to mortuary at Ghazipur for post mortem examination. The constables brought the dead body to the mortuary at Ghazipur and at about 3 p.m. on 25.3.1982 produced it before Dr. K.K. Srivastava, who on identification of the dead body by these two constables, held autopsy on the dead body of Ganesh Ram and found as under : "The deceased was aged about 65 years. He had died one and a half day before the post mortem. The deceased was average built. Blood was oozing out from his mouth and nose. Rigor mortis had passed from upper extremity but was still present in both the legs. The doctor found the following ante mortem injuries on the dead body of the deceased: Ante-mortem injuries: 1- Post-mortem abrasion 1.5 cm x 0.5 cm on outer surface of right arm, 4 cm below the right shoulder joint. 2- Oblique penetrating wound 2 cm x 0.5 cm x muscle deep (4 cm) on the back surface of right arm, 12 cm above right elbow. Directions-downwards and forwards and medially. No tailing. 3- Oblique penetrating wound 3 cm x 1 cm x bone deep (4.5 cm) on the back surface of right arm, 6 cm above right elbow. Directions-downwards, forwards and medially. No tailing. 4-Oblique penetrating wound 4 cm x 1.5 cm x bone deep (4.5 cm) on the back surface of right forearm, 7cm above the right wrist joint. Directions-downwards, forwards and medially. No tailing. 5-Oblique contusion with abrasion 2cm x 1cm on the back of left arms, 2cm above the left elbow. Lower end of left humerus fractured. 6-Oblique contusion 15 cm x 3cm on back of left arms, 2cm below the left axilla. 7-Oblique contusion 30cm x 5cm on left side of chest, 1cm below left axilla and 16 cm outer to left nipple. 8-Oblique contusion 7cm x 3cm on right shoulder blade 3cm above the medial angle of right scapula. 9-Oblique contusion 6 cm x2.5 cm on the right side of back 1cm below lower angle of shoulder blade. 10-Oblique contusion 8 cm x 2cm on right side back, 2cm below the injury no.9 and parallel to it. 11- Oblique contusion 10 cm x 2cm on right side of back, 3 cm below the injury no.10. On dissection he found 6th to 12th ribs of right chest and 8th to 12th ribs of left chest fractured. Pleura and lower lobe were lacerated. He found dark fluid blood in the cavity and about 5 oz. of undigested rice and daal in the stomach. According to him, the deceased had died as a result of shock and haemorrhage due to his ante-mortem injuries. In his opinion the ante-mortem injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause his death.".;