A. S. Srivastava, J. - (1.) BHUPAL Singh, Puran Singh, Mahipal Singh, Dhyan Singh and Bahadur Singh appellants have filed this appeal against the judgment and order dated 31-8-1977 of the II Additional Sessions Judge, Nainital, convicting and sentencing BHUPAL Singh to imprisonment for life under section 302 IPC and Puran Singh, Mahipal Singh, Dhyan Singh and Bahadur Singn to four years' R. I. and a fine of Rs. 500/- under Section 326/34 IPC each (in default of payment of fine to rigorous imprisonment for further period of one year).
(2.) BHUPAL Singh, Puran Singh and Mahipal Singh appellants are real brothers. Dhyan Singh is their nephew and Bahadur Singh is their servant. All these appellants, except Bahadur Singh, are residents of village Lachampur, P. S. Haldwani, district Nainital. Bahadur Singh is a resident of village Himmatpur, P. S. Haldwani, Prem Ballabh PW 10 is also a resident of village Lachampur. The deceased Trilochan was son of Prem Ballabh who was murdered on 6-8-1976 at about 4-5 p. m. in the Jungle of Himmatpur Nakail (Kalukhera Plantation) which is about 9kms away from P. S. Haldwani. He was done to death by means of a Kulhari by beheading him. The head of the deceased was not found at the place of occurrence. Prem Ballabh was not in his village when bis murder took place. On 3-8-1976 he had gone to village Harakhan from where he returned on 8-8-1976. His wife then told him that Trilochan deceased who had gone to cut wood in the jungle on 6-8-1976 had not returned till then. She also told him that Diwani Ram and Sohan Lal of that village had also accompanied his son to the jungle for cutting wood. She also told him that in the evening when she enquired from those three children about Trilochan deceased they told her that they returned from Sukhi Nadi and Trilochan had gone away in the jungle for cutting wood. She further told him that her nephew Dharmanand had seen the appellants also going to the jungle in the same direction in which the deceased had gone. On learning these facts, Prem Ballabh came to Haldwani for lodging a report where he met Bishambhar Datt son of Raghubir Datt of village Pinru. When Prem Ballabh told him about the disappearance of his son Bishambar Datt said that there was no use for making a search for Trilochan because he had seen him being murdered by the appellants in the jungle of Himmatpur Nakail while he was returning on foot on the evening of 6-8-1976 from Chauregalia to Haldwani. At about 4 or 5 p. m. on that evening when he was near that village he heard the alarm of the deceased. On that alarm when he went there he saw the appellants beheading the deceased. On his protests the appellants threatened to murder him also if he raised any voice. On learning this fact, Prem Ballabh sent his son-in-law Harish Chandra to go in the jungle with some men and search for the dead body. Thereafter he came to P. S. Haldwani where he lodged the report containing the entire facts mentioned above. S. I. Prem Singh Pundtr PW 11 started investigation of this case on the basis of the report. On the same day i.e. 8-8-1976 he went to the place of occurrence where he made an inspection of the site and despatched the dead body for post-mortem examination after conducting inquest proceedings and performing other necessary formalities. He also made some recoveries from the place of occurrence including blood-stained earth. The post-mortem examination on the dead body was performed on 9-8-1976 at 9.30 a. m. by Dr. N. D. Pant PW 4 at the Civil Hospital Haldwani who found the following ante-mortem injuries on it :- " 1. Large wound at the junction of trunk and neck (with head and neck missing) measuring from front to backwards 12 cm x side to side 10 cm, Tbis wound included many incised wounds. Margins were irregular at places on account of gnawing by maggots and animals. The floor showed cut muscles, both carotid vessels were cut and thyroid cartilage was also cut and the direction was from left to right. The 7th vertebra was cut and was hanging loosely in the wound. 2. Incised wound 4 cm x 1.5 cm x muscle deep on the back side of left shoulder over joint line. The floor showed swelling and decomposition. Direction of bone was from inside to outwards in a horizontal plane. The edges were partly gnawed out by maggots. 3. Abraded area 20 cm x 5 cm on the back and inner aspect of left forearm and elbow. 4. Abraded area 6 cm x 4 cm on the back of left arm 5 cm above from elbow joint. " According to the doctor the beheading of the deceased was likely with a Kulnari.
(3.) THE motive for the crime as suggested by the prosecution is that Prcm Ballabh who was a resident of a different village had purchased 40 bighas of land in village Lachampur in the year 1959 from Kishan Singh, the brother of Chatur Singh and the father of Bhupal Singh, Puran Singh and Mahipal Singh appellants. Chatur Singh did not like it. He therefore got a suit for ejectment of Prem Ballabh filed by the wife of Kishan Singh. Prem Balkan won that case. THEreafter Chatur Singh had been declaring that no doubt Prem Ballabh had won the case, he will ruin him and will not permit him to live in the village. The prosection has examined 13 witnesses to prove its case. They did not include Bishambhar Datt from whom Prem Ballabh had learnt about the occurrence and who, according to the FIR was an eye witness. However, out of the aforesaid 13 witnesses, Diwani Ram PW 1 and Sohan Lal PW 2 have been examined as witnesses of fact.;