- (1.) D. K. Trivedi, J. The present criminal appeal is directed against the judgment and order dated 18-8-1979 passed by IV Additional Sessions Judge, Unnao convicting the appellants under Section 364, I. P. C. and sentencing each of them to Imprisonment for Life.
(2.) INITIALLY, the accused-appellants were prosecuted under Sections 302/34, 201 and 364, I. P. C. and by the same judg ment the learned Sessions Judge acquitted the appellants under Sections 302/34 and 201, I. P. C. There are three appellants in this case. INITIALLY there were four accused-persons including Maiku who died during trial and therefore, these three appellants have been convicted and prosecuted as mentioned above. According to the prosecution case, Prakash (deceased) was the son of P. W. 1 Smt. Sarju Dei wife of Sheo Sagar resident of village Luli Purwa and Hamlet of Shuk-la Ganj, PS. Ganga Ghat, District Unnao. The accused-persons are also residents of the same village except accused Chhotey who resides in village Mansha Khera, PS. Ganga Ghat, District Unnao which is situated at a short distance from village Luli Purwa. According to the prosecution case, the incident took place on 10-1-1978 at about 6. 00 p. m. in the evening. It is said that two days before the date of occur rence, accused Ram Sarup alias Sarupe had brought a tin of liquor and had got that tin burried in the sand with the help of accused Maiku and deceased Prakash. On the next day at about 12. 00 o'clock (noon) accused Ram Sarup alias Sarupe went for taking out that tin of Hquor from the sand but he did not find the same and on enquiry accused Maiku told him that Prakash (deceased) had removed that tin of liquor. On this, Ram Sarup alias Sarupe went to the house of Smt. Sarju Dei (P. W. l) at about noon and asked regarding where abouts of Prakash. She replied that she did not know as to where he (Prakash) had gone and then, Sarupe said that Maiku informed him that the liquor was removed by Prakash and he would teach him a les son for the same and would kill him. It is said that on 10-1- 1978, Prakash (deceased) had gone to see cinema show in the after-noon at about 2. 30 p. m. Smt. Sarju Dei (P. W. 1) went to Cinema-Hall situated in Town Shuklagnaj and brought her son back at about 5. 00 p. m. At about 6. 00 p. m. , Sarupe again came at the door of Smt. Sarju Dei (P. W. 1) and said to Prakash that "maiku says that you have removed the tin of liquor". However, Prakash (deceased) denied the same and then an altercation took place between them. In the meantime accused Maiku, Pyarey and Chhotey arrived at the door of Smt. Sarju Dei (P. W. 1) and all the four accused started to beat Prakash (deceased) with slaps and on hearing the alarm raised by P. W. 1 Sarju Dei and Prakash (deceased) several persons reached there and saw the incident. At about 6. 00 p. m. after beating Prakash with slaps, accused Sarupe, Maiku, Pyarey and Chhotey took away Prakash towards north with them and at about 9. 00 p. m. the accused-persons came back in village Luli Purwa. As, Prakash did not return back to his house, therefore, Smt. Sarju Dei (P. W 1) enquired from Pyarey as to where they had left her son Prakash. On this enquiry, accused Pyarey threatened her (Smt. Sarju Dei) and asked her to run away. It is further alleged that Smt. Sarju Dei tried to trace her son Prakash here and there but she could not find him. Then, she went to PS. Ganga Ghat alongwith one Chaterjee and Laxmi Narain Mali on 11-1-1978 and lodged a report at 12. 35 on the same day. P. W. 7 Ram Shanker Srivastava prepared the chik report and registered the case. P. W. 8 S. I. Ali War is was entrusted with investigation of this case. He received the relevant G. D. entries near Saraswati Talkies, Shuk-laganj, on 11-1-1978 at about 1. 00 a. m. through constable Adya Prasad and after receiving the same, he immediately started the investigation of this case and recorded the statement of Smt. Sarju Dei (P. W. 1) near Saraswati Talkies. He further recorded the statements of the other witnesses and thereafter, he went to village Luli Purwa and Mansa Khera for arresting the accused-persons but they could not be traced out. He again went to village Luli Purwa and recorded the statements of the other witnesses and prepared the site plan' (Ext. Ka-8 ). On 12-1-1978 receiving an information by some informant, he ar rested accused Ram Sarup at about 6. 30 p. m. He recorded the statement of accused Ram Sarup who confessed his guilt and promised to show the place of murder of Prakash (deceased), the place where his face was burnt and the place there his dead body was burried. Thereafter, accused Ram Sarup alias Sarupe took S. I. Ali Waris (P. W. 8), police personnel and other wit nesses to village Luli Purwa and showed the place of murder of Prakash and the place where the face of deceased Prakash was burnt and thereafter, reached village Nathu Khera from where accused Ram Sarup took out the dead body of Prakash (deceased) from the sand.-The Investigat ing Officer thereafter, prepared memo Ext. Ka-3 of recovery of dead body of Prakash in presence of the witnesses. He took 'chappals' of Prakash (deceased) in his custody and prepared memo Ext. 4. He also took the sample of blood stained and plain earth from the place, from where the dead body of the deceased was recovered and also prepared site-plan Ext. Ka-10. He also recovered the ash of 'patwar' from the place where the place of the deceased was burnt. On 13-1-1978 at about 8 a. m. the Investigating Officer prepared the inquest report Ext. Ka-11 and other relevant papers for autopsy Ext. Ka-12 to 14 and sent the dead body of the deceased to mor tuary through constable Adya Prasad and Sunder Singh. The Investigating Officer thereafter, recorded the statements of the witnesses and after completing the inves tigation submitted the charge-sheet against the accused-persons. P. W. 9 Dr. J. N. Bajpai, Medical Officer of District Hospital Unnao con ducted the autopsy on the dead body of deceased Prakash on 13-1-1978 at 4 p. m. He found the following ante-mortem in juries on his body: (1) There was bleeding from the nose. (2) Multiple reddish contusions on the entire face on both sides of face, front of neck and on both sides of chest on upper part. (3) Legature marks found on the front of neck, below the thyroid cartilage. The base of the furrow was soft and abrasions were found on the margins of legature mark. Subcutaneous tissue under the legature mark showed echymosis. There was also injury under the muscles on the mark. There was fracture of the larynx, trachea and hyoid bone shared fracture. Scratches and abrasions were found on the face and neck. The face was puffy and cyanosed conjunction was congested. Tongue was swol len. Brain was congested. The post-mortem report is Ext. Ka-16.
(3.) ON internal examination, accord ing to the doctor the stomach of the deceased was empty. The small intestines were found empty and large intestine was found full faecal matter. According to the doctor the death of the deceased was caused by strangulation. In support of its case the prosecu tion examined as many as nine witnesses, out of them P. W. 1 Smt. Sarju Dei, P. W. 2 Dori, P. W. 3 Bramha and P. W. 4 Laxmi Narain are the witnesses of fact. Out of four these eye-witnesses, P. W. 3 Bramha did not support the prosecution case and therefore, he was declared hostile in this case. P. W. 5 Mohd. Hanif proved the arrest of accused Ram Sarup alias Sarupe as well as recovery of the dead body of deceased Prakash on his pointing. P. W. 6 Rupan corroborated the statement of P. W. 5 Mohd. Hanif and proved the arrest of ac cused Sarupe as well as recovery of the dead body of deceased Prakash on his pointing. P. W. 7 Ram Shanker Srivastava Head Moharrir proved the F. I. R. as well as other G. D. entries. P. W. 8 S. I. Ali War is conducted the investigation in this case and after completing the investigation, he submitted the charge-sheet against the ac cused and P. W. 9 Dr. J. N. Bajpai conducted autopsy on the dead body of deceased Prakash and proved the post- mortem report EXt. Ka-16.;