- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (herein-after referred as Cr. P. C.) is di rected against the judgment and order dated 02-05-1990, passed by learned Sessions Judge, Nainital, in Sessions trial No. 236 of 1986, whereby the accused / appellants Devendra Singh and Madan Singh have been convicted under Sec tion 302 read with Section 34 and un der Section 201 read with Section 34 of the Indian Penal Code, 1860 (hereinaf ter referred as I. PC.), and each one of them has been sentenced to imprison ment for life under Section 302 read with Section 34 of I. P. C. , and three years rigorous imprisonment and also to pay fine of Rs. 1,000/- under Section 201 read with Section 34 of I. P. C. It is directed by the trial court that in default of payment of fine, the defaulter con vict shall further undergo six months rig orous imprisonment. Both the sentences were directed to run concurrently by the trial court. (During the pendency of ap peal appellant Devendra Singh as died and his appeal stood abated ).
(2.) HEARD learned counsel for the parties and perused the entire evidence on record. Prosecution story, in brief, is that on 05-08-1986, at about 06:00 P. M. , P. W. I Abdul Aziz along with Abdul Salam (deceased) were sitting outside latter's house in village Bagjala Payaya Gaulapar within the territorial limits of RS. Haldwani. P. W. 2 Abdul Rasid, P. W. 3 Abdul Majid (real brother of the de ceased) and P. W. 4 Pratap Singh were also present there. Accused / appellant Devendra Singh, armed with 'darat' (sickle) along with his elder brother accused / appellant Madan Singh, armed with KUDAL (one sided pick axe), came there and told Abdul Salam that they will teach him lesson for demanding money from them. Ac cording to the prosecution, thereafter, both the accused / appellants with the weapons armed, assaulted Abdul Salam, who received injuries and as a result of which he died. Accused / ap pellants Madan Singh and Devendra Singh, thereafter threw the dead body in a canal and ran away. P. W. 1 Abdul Aziz got lodged the first information report (Ext. A-1) with police station Haldwani, on 05- 08-1986, at about 9:20 P. M. P. W. 7 Head Constable Sultan Singh pre pared the check report (Ext. A-12) and P. W. 9 Inspector Ramcharan Singh, in-charge of the police station, started in vestigation. A police team consisting of P. W. 6 Sub Inspector Vishram Singh and Constable Keshar Singh proceeded to the spot and prepared the inquest report (Ext. A-5) of the dead body, be tween 10:30 P. M. to 11:45 P. M. , on the very day i. e. 05-08-1986. The dead body was found by the police party lying near a canal. The police also got prepared police form No. 33 (Ext. A-6); Police form No. 13 (Ext. A-7); sketch of the dead body (Ext. A-8) and letter (Ext. A-9) addressed to the Chief Medical Of ficer, requesting him for postmortem ex amination of the dead body. The dead body in a sealed condition was sent for postmortem examination. P. W. 8 Dr. R. P. Pande conducted the postmortem ex amination on 06-08-1986, and prepared the autopsy report (Ext. A-14 ). After preparing site plan, interrogating the wit nesses, and on completion of the investigation, charge sheet (Ext. A-18) was submitted by P. W. 9 Ramcharan Singh, Investigating Officer, against both the accused Devendra Singh and Madan Singh. The Magistrate concerned on re ceipt of the charge sheet, appears to have committed the case to the court of Sessions, for trial, after giving necessary copies to both the accused, as required under Section 207 of the Cr. P. C. Learned Sessions Judge, Nainital after hearing the prosecution and the defence, framed charge of offences punishable under Section 302 read with Section 34 and that of one punishable under Sec tion 201 read with Section 34 of the I. PC. against both the accused, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. I Abdul Aziz, Informant (declared hostile); P. W. 2 Abdul Rasid (cousin of the deceased); P. W. 3 Abdul Majid (real brother of the deceased); P. W. 4 Pratap Singh, an alleged eyewitness (declared hostile); P. W. 5 Constable Keshar Singh (who took the dead body in a sealed cover for postmortem examination); P. W. 6 Sub Inspector Vishram Singh (wit ness of preparation of inquest report); P. W. 7 Head Constable Sultan Singh (who prepared the check report); P. W. 8 Dr. R. P. Pande (who conducted the au topsy) and P. W. 9 Ramcharan Singh (In vestigating Officer, who investigated the crime ). The oral and documentary evi dence, adduced by the prosecution, was put to the two accused under Section 313 of Cr. P. C. , in reply to which they al leged the same to be false. No evidence in defence was given on behalf of the accused. The trial court, after hearing the prosecution and the defence found both the accused Devendra Singh and Madan Singh guilty of charge of offences punishable under Section 302/34 and one punishable under Section 201/34 of I. PC. After hearing them on sentence, each one of the convict was sentenced to imprisonment for life under Section 302/ 34 of I. P. C. and to rigorous impris onment for three years under Section 201/34 of I. P. C. The convicts were fur ther directed to pay fine of Rs. 1,000/ -. Under Section 201/34 of I. P. C. , in de fault of payment of which they were directed to undergo further six months rigorous imprisonment. Aggrieved by the judgment and order dated 02-05-1990, the convicts preferred this appeal before the Allahabad High Court in the year 1990, from where it is received by trans fer to this Court under Section 35 of the U. P. Re-organization Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here, the ante mortem injuries found on the person of the deceased, at the time of post mortem examination, as observed in Ext. A-14, which are being reproduced as under : "1. Multiple abraded contusion on the top and back of head with lacerated wound of 3cm x 2cm on the back with one fracture. 2. Lacerated wound of 4cm x 1. 5 cm on the left side forehead. 3. Contusion on the right side of forehead. 4. Abrasion on the back of both hands (palm ). 5. Contusion with multiple abra sions on both knee joints. Bleeding from both nose and left ear was present. " Skull bone was also found fractured. In connection with the injury Nos. 1 and 2, on internal examination. P. W. 8 Dr. R. R Pande found frontal and oc cipital bones fractured with the bone of the skull and base fractured. Membranes were found lacerated and congested. In the opinion of the Medical Officer, the cause of death was shock and haemor rhage. 6. As per the prosecution story, there are four eyewitnesses of the inci dent. P. W. 1 Abdul Aziz; P. W. 2 Abdul Rasid; P. W. 3 Abdul Majid and P. W. 4 Pratap Singh. P. W. 1 Abdul Aziz, inform ant and eyewitness, did not support the prosecution story and stated that he did not witness the commission of crime and the accused appellants did not cause injuries in his presence. This witness was got declared hostile. P. W. 4 Pratap Singh, who is said to be a servant of the deceased, when examined before the court, did not support the prosecution story. He has stated that he did not wit ness accused / appellants committing murder of the deceased. This witness was also got declared hostile. Now, there remain coaler evidence of only remaining two witnesses i. e. P. W. 2 Abdul Rasid and P. W. 3 Abdul Majid. Both of these witnesses are related to the deceased. P. W. 2 Abdul Rasid is cousin of the de ceased and P. W. 3 Abdul Majid is real brother of the deceased. No doubt, oral testimony of the witnesses cannot be dis carded only for the reason that they hap pen to be relatives of the deceased, but, if there presence at the time of occur rence appears to be doubtful, then cer tainly it cannot be said that they are the reliable witnesses. Undoubtedly, these two witnesses have supported the pros ecution story, but addresses given by them itself shows that P. W. 2 Abdul Rasid is resident of Line No. 7, Azad Nagar, Haldwani, while P. W. 3 Abdul Majid is resident of Line No. 1, Azad Nagar, Haldwani, as such, none of these witnesses are resident of the village where the incident had taken place. Not only this, each of these eyewitnesses P. W. 2 Abdul Rasid and P. W. 3 Abdul Majid disclosed different reasons for being present on 05-08-1986, at about 06:00 - 06:30 RM. , in the village where the incident had taken place. Therefore, these witnesses are not only relatives but also the chance witnesses.;