- (1.) S. S. Kulshrestha, J. This appeal has been brought against the judgment and order dated 18-11-2006 passed by the Additional Sessions Judge, Court No. 7, Deoria in ST. No. 84 of 2006, State v. Bheemal and four others, whereby convicting them under Section 302 read with Section 34 IPC and awarding death sentence to each of them.
(2.) IT is said that the Additional Sessions Judge committed a serious error in holding it to be a homicidal death of Rajendra s/o Congress Chawhan, the informant of this case when the post- mortem report and the opinion of the doctor clearly refer it to be a suicidal death. The prosecution had also deliberately withheld the material evidence as a result whereof the appellants suffered grave prejudice. The appellants have been roped into this case because of enmity. Further inconsistencies in the deposition of the witnesses were not taken into consideration. The case is totally based on circumstantial evidence and the conclusion was wrongly drawn. Whatever the evidence adduced by the prosecution was not consistent with the hypothesis of the guilt of the accused. The geneses of the occurrence and the trifle dispute, which gave rise to the occurrence, belie the prosecution case of the appellants intended to cause the death of the deceased. In order to appreciate the salient points raised by the learned Counsel for the accused appellants and also to make the disposal of this appeal a brief resume of the facts may be made. Congress Chawhan, the complainant of this case, received an information on 11-5-2005 at 6. 00 a. m. from one Amarjit Kushwaha (PW-2), r/o neighbouring Village Deoruva, that his son Rajendra was seen dead hanged in a rope in the Marahai of his house. The complainant rushed to his house on that very day and found his son dead hanging in a rope. On the basis of such information furnished by Sri Amarjit Kushwaha intimation was given by Congress Chawhan to the police station at 7. 15 a. m. and its entry was also made in G. D. No. 10 (Exhibit Ka-4) on that date. On 12-5- 2005 a written report (Exhibit Ka-1) was submitted by the complainant at P. S. Tarkulwa, Deoria at about 8. 10 a. m. nominating five persons namely Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan to be involved in the murder of his son. It was reported by him that he is resident of Village Piparhiya, which is within the Police Circle Tarkulwa, District Deoria but was residing at Kasba Rampurgarh in a house got constructed by him. On 10-5-2005 his son Rajendra (deceased) and daughter Km. Sarita went to their Village Piparhiya for taking care of vegetables which were sown and brought up in their field. After coming from the field Km. Sarita, the daughter of the complainant, informed at her house that her brother Rajendra had not come. He was sitting at the residence of grandfather and uncle (Pattidars) and when was asked to return home he told that he would come later on. It was also informed by her that at that time Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan were also present. When Rajendra could not come in the night the informant alongwith his family members went for his search. He was not found. However, the complainant felt composed that he might have, as usual, gone to see dances in Barat. He did not ask the whereabouts of Rajendra from any of his Pattidars. It was also reported by the complainant that he is having old enmity with the accused and because of that reason his son Rajendra was killed by them by hanging him in a rope. Not only this they have also absconded with their belongings so as to protect themselves. Prosecution examined PW-1 Congress Chawhan, who is the informant of this case. He stated that the accused are his Pattidars and are separate in their holdings. The complainant had purchased land of Chandrika (one of the Pattidars) by way of a sale-deed. Accused Bheemal used to comment that if he could have avoided the sale-deed executed in his favour, as it was to be purchased by him. He further stated that before this incident a case was also brought by him against the accused as they had caused damage to his properties. Not only this, the accused also threatened him for dire consequences if he would not leave the village. This witness has also given the narration of the incident as was communicated to him by his daughter Km. Sarita. It was also communicated by his daughter that her brother Master Rajendra was sitting with her grandfather, uncle Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan. He was also persuaded by her to return to the house but he told that he would come back later on. The witness further stated that he also went for the search of his son but could not find his whereabouts. He did not enquire from the accused about his son. He came back to his house believing that his son might have gone to see dances in a marriage. PW-2 Amarjit Kushwaha who is said to have communicated the complainant with regard to the death of his son hanged in a rope at his Marahai, stated that on 11-5-2005 at about 4. 30 a. m. when he went to attend the call of nature he saw accused Bheemal, Degree, Vijayee, Chandra Shekhar and Ram Gyan going with their belongings and cattles towards Gummittia which is to the north. Thereafter he heard the cries of Km. Sarita that her brother had been hanged. There was also whispering that the accused had killed Rajendra and they were fleeing away from that place. He went at the site and witnessed Rajendra to be dead hanging in a rope. He thereafter went to Garhrampur where the complainant was informed about the unfortunate end of his son. PW-3 Nandu Yadav stated that the accused and complainant Congress Chawhan both were at draggers drawn because of some land purchased by the complainant which was not liked by the accused. It was also stated by the witness that on the date of the incident they were not available in the village. In the house of Bheemal the rope and Hasia were also recovered by the police. He is also the witness of the recovery (Exhibit Ka-3 ). PW-4 Km. Sarita Chawhan, who is said to be the star witness of this incident and was hardly about 10 years of age at the time of incident. She made total narration of the incident. It was stated by her that she and her brother used to go to Village Piparhiya for taking care of her agricultural produce. On 10-5-2005 she alongwith her brother went to take care of the agricultural produce of her field. In the meantime accused Bheemal came at that place near to Barhal Tree and told that let us sit at Chawki. On his persuasion Rajendra (deceased) went with him. He was also got seated at Chawki where accused Degree, Vijayee, Chandra Shekhar and Ram Gyan were present. She thereafter came back to her house and apprised her parents that her brother is in the company of the above noted accused persons. The witness further stated that her parents also went for the search of her brother but she went for sleep and in the morning verified about her brother and then she again went to Village Piparhiya and saw her brother dead hanged in a rope in Marahiya. On her cries several villagers came at that place. Information of the death of his brother was got communicated through Amarjit Kushwaha. Smt. Sunaina Devi (PW-5) also reiterated the FIR version.
(3.) PROSECUTION further examined formal witness namely Shyam Mohan Tripathi, Head Constable (PW-6) who recorded the intimation in G. D. No. 10 at 7. 15 a. m. vide Exhibit Ka-16 and registered the case at crime No. 102/05 under Sections 302/34 IPC and also the Chick No. 42/05 vide Exhibit Ka-5. The G. D. at Rapat No. 10 recorded on 12-5-2005 vide Exhibit Ka-6 was also proved by him. C. P. Tirth Raj alongwith other papers had taken the dead-body of the deceased to the hospital for post-mortem. PW-8 G. P. Singh, S. I. had taken the photographs of the dead-body of the deceased and also got the inquest report prepared from Hira Singh, S. I. That inquest report (Exhibit Ka-2) was proved by this witness. PW-9 Mahesh Yadav is a witness of the recovery of rope and Hasia from the house of accused Bheemal. He proved its Fard (Exhibit Ka-3 ). Dr. B. S. Srivastava (PW-11) conducted the autopsy of the dead-body of the deceased and found the following ante-mortem injuries to have been sustained by the deceased : Ligature mark present on the upper part of Neck above the hyoid bone. Encircling outer part of neck obliquely placed. (L) side above the (R) discontinuing on the back of Neck 17 cm length 2 cm breadth blackish Parchment like. It was also noticed by the doctor that food contents were coming out from his mouth and cervical vertebra was found not displaced. Cause of death was opined due to asphyxia as a result of hanging. He also proved the post-mortem report (Exhibit Ka-15 ). Mohd. Naseem Khan (PW-10) had recorded the statements of the witnesses in the course of investigation and after extensive investigation charge-sheet was submitted by him against the accused persons. As a result of the investigation the accused appellants were sent for trial. All the appellants denied their complicity for the offence charged with and stated that they have been falsely implicated. The conviction of the appellants is based on circumstantial evidence. The learned Addl. Sessions Judge found the circumstantial evidence established against the accused appellants and from which he concluded that they have murdered Rajendra. The circumstances which weighted the trial Court to come to this conclusion are as under : (i) Accused were so much inimical with the complainant that they intended to make him without son. (ii) There was also a case of Maar-Peet between the complainant and the accused on account of the land purchased by him from Chandrika (iii) The evidence of last seen so given by the little girl Sarita that the deceased was sitting with the accused was also found worth credence. (iv) The attending circumstances and the ante-mortem injuries noticed by the doctor would render it to be a case of homicidal death. (v) Accused after committing murder of the deceased were fleeing away from the place of occurrence with all their belongings and cattles. (vi) Recovery of Rassi, Hasia, signs of dragging the dead-body of the deceased were found to lend support to prosecution version.;