- (1.) The judgment and order dated 21.10.1999 passed by the VII Additional Sessions Judge, Moradabad in Sessions Trial No. 541 of 1990 State v. Devpal and Ors. whereby convicting and sentencing the accused-appellants Nehali and Bhurey for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. with rigorous imprisonment for life is under challenge in this appeal.
(2.) The facts as unfolded on the record of the case are that on 4.6.1990 Shiv Singh the brother of first informant Dhanpal (P.W.I) having tooth ache was lying in the varanda of Ganga Ram (P.W.2). At about 8.15 P.M. co-accused Devpal alias Sapru (murdered during trial) armed with sword, accused-appellants Nihali with knife, Bhurey with spade and co-accused Mohkam (acquitted after trial) carrying Ballam came at the varanda of Ganga Ram and mounted murderous assault on Shiv Singh. On hearing the outcries of Ganga Ram and Bharat, the first informant and other witnesses reached there and exhorted the accused persons who were subjecting the victim to brutal assault. Accused Devpal alias Sapru showing country made pistol asked the first informant and other witnesses to stay away. The commission of offence was viewed in the light of lamp. The victim succumbed to the injuries at the spot. The motive behind the commission of offence was a quarrel between daughter-in-law of Vir Singh and younger sister of accused Devpal alias Sapru about 20-25 days before and Devpal alias Sapru and his family members had pelted bricks and stones at the informant's house. The victim had challenged accused Devpal alias Sapru to teach him a lesson and since thereafter the latter used to remain in the look out to harm him. The First Information Report (Ext. Ka-1) was scribed and registered by Head Moharir Akram Ali on 4.6.1990 at 9.45 P.M. at the dictation of first informant Dhanpal (P.W.I). The crime was registered at serial No. 27 of the general diary on 4.6.1990 at 9.45 P.M. by H.C. Akram Ali. The general diary entry was (Ext. Ka-13). The inquest on the dead body was conducted by S.I. Munna Lal Rao. The inquest memo is (Ext. K.a-2). During the course of inquest challanlash (Ext.Ka-7), photolash (Ext. Ka-8), letters to R.I. and C.M.O. (Ext. Ka-9 and Ext. Ka-10) specimen seal (Ext.Ka-11) were prepared. After inquest the dead body was sent to the mortuary. The autopsy on the dead body of Shiv Singh was conducted by Dr. G.P. Agnihotri (P.W.4) on 5.6.1990 at 3.45 P.M. and following ante mortem injuries were found on his person as per postmortem certificate (Ext. Ka-6): 1. Incised wound 10 cm. x 3 cm. x trachea deep on left side and middle of neck at the level of thyroid cartilage the rings of the trachea are cut. 2. Incised wound 5 cm. x 2cm. x bone deep on left side of check 4 cm. from chin mandible bone is cut. 3. Incised wound 4 cm. x 1 cm. x ear cartilage deep vertical in direction in middle of left ear. The ear is completely cut. 4. Incised wound 3 cm. x 1 cm. x ear cartilage deep vertical in direction 1 cm lateral from injury No. 3 and left ear. 5. Incised wound 6 cm. x 2 cm. x bone deep on left side of skull behind injury No. 4 and left ear. 6. Incised wound 3 cm. x 1 cm. x bone deep on left side of skull. 4cm. from left ear. 7. Incised wound 4 cm. x 1 cm. x scalp deep on from of head 8 cm. from the root of nose. 8. Incised wound 5 cm. x 1 cm. x skin deep on top of right shoulder. 9. Multiple abrasions 2 cm. x 8 cm. on back of left shoulder and left side of chest and upper arm. 10. Incised wound 5 cm. x 2 cm. x bone deep upper end of ulna and left lower end of numerous are cut. 11. Incised wound 5 cm. x 2cm. x skin deep on back of left four arm 4 cm from left elbow. 12. Multiple abrasions 20 cm. x 9 cm. on back left side over scapular region. 13. Multiple abrasion 21 cm. x 4 cm. on lateral side of left thigh. 14. Abrasion 10 cm. x 2 cm. on lateral side of right thigh in middle. There was fracture of left parital and left side of frontal bones, left humerus and left ulna bone. The death was caused due to multiple injuries on the body leading to hemorrhage and shock.
(3.) The responsibility to investigate the crime was entrusted to S.I. Jayanti Prasad Mishra (P.W.5). He visited the place of offence and prepared the memo of lamp (Ext. Ka-4) which was burning at the spot. He prepared the site plan of the place of offence (Ext.Ka-5). He took in the police custody the blood smeared earth, plain earth and blood smeared twisted grass cord from the cot under the memo (Ext. Ka-6). After the interrogation of first informant and other witnesses and completing other formalities he submitted the charge sheet (Ext.Ka-12) against the accused persons.;