Chandra Dhari Singh, J. - (1.) Heard Sri Sagar Vaish, learned Amicus Curiae for the appellant and Sri Nagendra Bahadur Singh, learned A.G.A. for the State.
(2.) The instant appeal has been filed against the judgment and order dated 8.9.2006 passed by the Additional Sessions Judge, Etawa in S.T. no.147 of 2002, whereby the accused appellant Shishu Pal Singh has been convicted for the offence punishable under Section 302 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.1,00,000/- ( Rupees one lac) and in default of payment of fine he shall undergo five years' R.I..
(3.) Brief facts of the case According to the prosecution story, on 2.12.2001 at about 9.00 P.M. when the informant Devi Dayal went to the place of the incident, he saw the appellant Shishu Pal Singh lying injured and upon narration of the facts by Shishu Pal Singh, a complaint was lodged in police station Jaswant Nagar, District Etawa. On the basis of the complaint a first information report was registered as Case Crime No.346 of 2001, under Section 302 and 307 I.P.C. on 2.12.2001 at about 10.10 A.M. against four unknown persons. After lodging the F.I.R. police started investigation and bodies of the deceased Rakshpal and Hari Singh were sent to the hospital for post mortem. After preparation of Panchnama of the deadbody the Investigating Officer visited the site of the incident and prepared a site plan as well as collected the blood stained soil and plain soil. He also seized the articles of the deceased persons and had taken foot print of the accused person. All articles which were seized by the police were sent to the Forensic Science Laboratory for medical examination. The Investigating Officer recorded the statement of the witnesses under Section 161 Cr.P.C.. After completing the investigation the police had filed the chargesheet against the accused-appellant Shishu Pal Singh under Section 302 I.P.C. before the competent court. On the basis of the evidence collected by the Investigating Officer-in-Charge and statement of the witnesses recorded under Section 161 Cr.P.C. the competent court framed charges under Section 302 I.P.C. against the appellant vide order dated 8.10.2002. The prosecution in order to prove its case examined 10 witnesses i.e. Devi Dayal, complainant-P.W.1, Har Dayal- P.W.2, Man Singh- P.W.3, Dhaniram- P.W.4, N.P.Singh alias Anil Kumar-P.W.5, Dr. B.K. Mishra- P.W.6, Brijesh Kumar Singh-P.W.7, M.S. Chauhan-P.W.8, Khursheed Akbar-P.W.9 and R. P. Singh- P.W.10 and exhibited 25 articles. IP.W.1 Devi Dayal, who is complainant of the case stated in the deposition that on the date of the incident i.e. on 2.12.2001 at about 9.00 P.M. he was sleeping in the house and his wife called him to see what was happening the out side of the house. When he came out from his house he saw that appellant Shishu Pal Singh was lying injured and also informed that four unknown persons entered into house and inflicted the injury on him. The witness further deposed that when he called Hari Singh who had not given any response, he went to the cot where Hari Singh and Rakshpal were sleeping. He saw that both had sustained the sharp edged weapon injury and found dead. He further stated in the testimony that Shishu Pal Singh was sent to the hospital for medical treatment. He dictated story to P.W.3, Man Singh for lodging a Tehrir. On his intimation and dictation Tehrir was written and he signed on the Tehrir. On the basis of the Tehrir the F.I.R. was lodged at Police Station Jaswant Nagar, District Etawa. He further stated that the accused persons confessed his crime in front of him, Kallu alias Hardayal, Anil and Dharmpal in the presence of the police. He further deposed in the testimony that the slipper of the accused-appellant, which has been stained with lot of blood, was recovered by the police. The statement made by him in front of the police accused persons were arrested. In the cross examination he submitted that at the time of occurrence he was not present on the spot. He reiterated that after awaking up by his wife he went to the place of occurrence. There was very dark night. He further stated that moon light was present. He had not mentioned anything regarding blood stained weapon, sleeper or any stains. He stated that there was no enmity of the land between the deceased and the accused. IIP.W.2 Har Dayal alias Kallu stated in the deposition that the incident took place about one year ten months ago. It was bright on the night of the occurrence and he was present in the house, when he heard the deceased Rakshpal's screaming, he came out in his Angan and saw that the appellant was attacking Rakshpal with Gandasa and on the same time when his father Hari Singh called the accused, he hit him on his neck with Gandasa. He stated in the deposition that all injuries caused to the deceased have been inflicted by the appellant. He tried to save the deceased but the appellant reverted attacking him so he ran away and locked himself in the room. He stated in the testimony that the conduct of the accused appellant was bad he had illicit relationship with so many women and without permission from his father he sold land of bhatt and from that enmity between the family members began. The accused-appellant bought house in his name. Extra judicial confession was made by the accused in from of him, Anil P.W.5 and Devi Dayal,P.W.1 and Man Singh, P.W.3. In the cross examination he submitted that at the time of occurrence he was in the room and he came out from two three minutes when he heard some voice and saw that accused-appellant attacking him with Gandasa. He further stated that he did not tell P.W.1 that he was an eyewitness to the occurrence because he was not asked. Thus fact of the witnessing occurrence was not told anybody of the family and village. He further deposed that he has given statement under Section 161 Cr.P.C. he saw both the deceased and accused-appellant was lying injured. IIIP.W.3, Man Singh is neighbor of the appellant and deceased and he was not an eye witness and he had stated in the statement that Devi Dayal has dictated the Tehrir. On his dictation he wrote the Tehrir. He submitted in the statement that Devi Dayal, P.W.1 dictated that when he went to the place of the incident after hearing some noise he saw the deceased lying in the pool of blood. The accused injured having formal wounds. He went to the Doctor with the accused-appellant and Doctor said that wounds are simple in nature. Police did not record any statement. In the cross examination he stated that he went to the place of the incident after hearing some noise but due to crowed he could not see anything and he went back of his house. He further submitted that he neither went to the police station nor to the hospital with the accused. He wrote what P.W.1 told him to write in the Tehrir. IVP.W.4 Dhani Ram stated in deposition that he is brother-in-law of the deceased. Rakshpal. He is witness of the recovery of Gandasa and foot print, item recovered from that date from the place of incident. In the cross examination he stated that he got information on telephone at 4.00 A.M.. He stated in the cross examination there were two recoveries i.e. gandasa and footprint where he signed. He further stated in the deposition that all the documentation regarding the case was done in the police station itself. VP.W.5 Netra Pal Singh alias Anil Kumar stated in the deposition that he studied in Kanpur when the incident took place. Therefore, he was not available at the home on 2.12.2010. Information regarding murder of the deceased persons was given on the telephone which was received by his brother Dharm Pal Singh. Dharma Pal Singh had informed him at 10.00 P.M. when he returned back to home. On the information he along with his brother Dharm Pal Singh went to the village by Taxi and reached in the morning of 3.12.2001. When he reached at home, police was present at that time and panchnama of the deadbodies of the deceased was prepared. He further submitted that since he was not present at home, therefore, he had not seen the incident. After asking people, who were present there, he got information about the time of occurrence. VIP.W.6 V. K. Mishra who conducted the post mortem of the deceased persons and found following injuries: (a) Incised wound of 6x 1 cm x bone deep on the left side of the forehead adjoining the left eye brow. (b) incised wound of 3x.5 cm x bone deep on the left forehead at the distance of 1 cm of injury no.1 (c) incised wound of 3x 1-1/2cm x bone deep right side of the forehead just in the centre of right eye brow. (d) incised wound 4x.5 cm x bone deep just 8 cm above the right ear. (e) Incised wound of 6 x1-1/2 cm x bone deep on the back side of the head just at the distance of 6 cm from the right ear. (f) Incised wound of 4x1 cm x bone deep on the back side of the head at the distance 1 cm from the injury no.5. (g) Incised wound of 2x1 cm x bone deep on the left side of the head just 4 cm above the left ear. (h) Incised wound of 2x1 cm x bone deep on the upper region of head. (i) Incised wound of 9 x2 cm x bone deep on the left region of the face just above the left eyebrow. (j) Incised wound of 4x1 cm x bone deep at the back region of the head on the left side. (k) Incised wound of 1x5 cm on the frontal region of left ear. (l) Incised wound of 8 x 1-1/2 cm x bone deep on the left region of the face just below the left ear. (m) Incised wound of 8 cm x 1-1/2 cm x bone deep on the right side of the face just below the right ear. (n) Incised wound of 5x cm x muscle deep on the right side of the face just below the right eye. (o) Various bluish mark of 10 x 6cm on the right region of neck as weel on the shoulder . (p) smashed wound of 2x 5 cm x chest on the left side of the chest just above 5 cm from the left nipple. (q) smashed wound of 1x 5 cm x left side of the stomach (r) smashed wound of 2 x 1 cm. X muscle deep on the right thigh. He proved signature of the post mortem report and opined that death was occurred before 18 hours and by the sharp edged weapon. VIIP.W.7 S.I. Brijesh Kumar, Investigating Officer of the instant case. He stated in his deposition that he started investigation after crime of the date on 26.12.2001. In the cross examination he stated that P.W.2 did not said anything regarding murder or witnessing the scene. VIIIP.W.8, S.I. Mangat Singh Chauhan, who was the first Investigating Officer of the crime, submitted that P.W.1 has lodged the F.I.R. and it was stated the place of the incident was dark and by help of light of torch, he saw the deceased one lying dead, stained gandasa and foot prints. Slippers were collected and sealed and sent for Forensic Science Laboratory for chemical examination. The accused/appellant was sent to the hospital with the constable for treatment and medical test. He further submitted that due to the dark night and absence of light, Panchnama of the deadbodies and recovery were made on the next date i.e. 3.12.2001. He proved Ext.Ka-7. During the investigation neither he found any evidence against the accused regarding murder nor did he note down any eye witness from the spot. Before reaching the spot accused Shishu Pal Singh was already sent to the hospital and he further submitted that he had not recorded statement of P.W.2. IXP.W.9, Constable Khurshed Akbar stated in his deposition that F.I.R. was lodged by P.W.1 in the name of four unknown persons. He further stated that P.W.1 complainant came with the accused, who was badly injured and he further stated that injuries had not been mentioned in the G.D. Entry. XP.W.10 S.I. Rateen Pal Singh Sengar stated in the deposition that first police went to the place of incident with P.W.8, Mangal Singh Chauhan, due to dark night and absence of light, panchnama of recovery was made on the next date i.e. 3.12.2001. In the cross he stated that nobody was arrested till preparation of the panchanama. XIThe defence examined Dr.D. P. Singh as D.W.1. The defence witness Dr. D.P. Singh stated in the testimony that he was posted as Emergency Medical Officer, District Hospital, Etawa and he examined the accused at 11.45 P.M. in the hospital. After examination of the accused person he found four incised wounds on back and front of the head, area and shoulder, four abrasion all over body. He further stated that Constable Hari Singh brought the accused for the examination XIIThe Sessions Court entering into a finding that the appellant had killed the deceased by inflicting Gandasa on the vital part of the body of the deceased. The appellant was convicted under Section 302 IPC and sentenced to life imprisonment and fine of Rupees one lac.;