- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr. P. C.), is directed against the judg ment and order dated 24-09-1993, passed by learned IIIrd Additional Ses sions Judge, Nainital, in Sessions Trial No. 148 of 1991, whereby accused/respondents Arun Kumar Pandey and Akhilanand Pandey, are acquitted of charge of offences punishable under Sections 302 and 307 read with Sec tion 34 of Indian Penal Code, 1860 (herein after referred as I. P. C. ).
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story in brief is that Harjinder Singh (P. W. 2) is resident of Village Maniharkhera within the limits of police station Bilaspur. District Rampur. However, he had his land in Village Keeratpur, within the limits of Police Station Rudrapur, which was earlier part of District Nainital (now part of District Udham Singh Nagar ). Prosecution'case is that on 17-03-1991, Harjinder Singh (P. W. 2) along with his cousin Harjit Singh (P. W. I) and his servant Kishore (deceased) had gone in a tractor trolley to Keeratpur to take AGOLA (buds of sugarcane ). At about 5:30 p. m. accused/respondents Arun Kumar Pandey and Akhilanand Pandey, came in their trac tor through the field of Harjinder Singh, to which Harjinder Singh (P. W. 2), objected. On this, the two accused got enraged and threatened Harjinder Singh to see him. Soon thereafter, at 6:00 p. m. , when Harjinder Singh along with his cousin Harjit Singh and servant Kishore, was returning from tractor towards his Vil lage Maniharkhera, accused/respond ents Arun Kumar Pandey and Akhilanand Pandey, came in a jeep and stopped the tractor. Apprehend ing danger to their life, Harjinder Singh, Harjit Singh and Kishore, at tempted to jump from their tractor. But meanwhile, accused/respondent Arun Kumar Pandey with his DBBL gun. fired at Harjinder Singh and Harjit Singh but the fire hit at their servant Kishore, who fell down at the spot. Harj. ihder Singh and Harjit Singh ran away towards their village and came back to the spot with other villagers of their village. By then, Kishore was gasping. He was immediately taken to Government Hospital, Rudrapur, where doctors declared him dead. Thereafter, a First Information Report (Ext. A-1) was lodged by Harjinder Singh after getting it scribed through Harjit Singh, which was registered as crime No. 211 of 1991, with police station Rudrapur, against the accused Arun Kumar Pandey and Akhilanand Pandey, relating to offences punishable under Section 302 and 307 I. P. C. Necessary entry was made in the gen eral diary at about 8:45 p. m. and investigation was taken up by Inspector Kali Charan Sharma (P. W. 7 ). He went to the spot and interrogated the wit nesses. On the very day i. e. 17-03-1991, after taking dead body of Kishore in their possession from the hospital, inquest report (Ext. A-7) was prepared by the police. The Investigat ing Officer further prepared sketch of the dead body (Ext. A-8), police form No. 13 (Ext. A-9), sample seal (Ext. A-10) and letter to the Chief Medical Of ficer (Ext. A-11), requesting him for post mortem examination. The pos tmortem examination was conducted by Dr. Arvind Agarwal (P. W. 5) on 18-03-1991, who recorded the ante mortem injury of punctured wound caused by fire arm weapon and pre pared autopsy report (Ext. A-5 ). The Medical Officer opined that cause of death of deceased was ante mortem injury leading to hemorrhage and shock. The Investigating Officer visited the site again on the next day i. e. 18-03-1991 and prepared site plan (Ext. A-6 ). He also prepared recovery memo (Ext. A-2) of shoes and other articles of the deceased found at the spot. During investigation, During investiga tion, inspector Kali Charan Sharma, got transferred and investigation was taken over by Ravindra Kumar Sharma (P. W. 8), who on completion of the investigation, submitted charge sheet (Ext. A-12 ). The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required un der Section 207 Cr. P. C. , appears to have committed the case to the Court of Sessions, for trial. Learned Sessions Judge, after hearing the parties, on 07-08-1991, framed charge of offences punishable under Sections 302 and 307 I. P. C. against accused Arun Kumar Pandey and as against ac cused/respondent Akhilanand Pandey that of offences punishable under Sec tions 302 read with Section 34 I. P. C. and Section 307 read with Section 34 I. P. C. Both the accused pleaded not guilty and claimed to be tired. There after, case appears to have been trans ferred to IIIrd Additional Sessions Judge, Nainital. On this prosecution, got examined P. W. I Harjit Singh (eye witness and scribe of the report), P. W. 2 Harjinder Singh (eye-witness of the incident), P. W. 3 Satnam Singh (wit ness of the inquest report), P. W. 4 Head Constable Ram Kishan Singh (who on the basis of First Information Report- Ext. A-l, prepared check report-Ext. A-3), P. W. 5 Dr. Arvind Agarwal (who conducted post mortem examina tion on the dead body of Kishore), P. W. 6 Constable Rajesh Kumar (who took dead body in a sealed condition for post mortem examination), P. W. 7 In spector Kali Charan Sharma (who in vestigated the crime but could complete the investigation) and P. W. 8 Ravindra Kumar Sharma (who completed the in vestigation ).
(3.) THE oral and documentary evi dence was put to the accused, as re quired under Section 313 Cr. P. C. to which they alleged the same to be false. It is alleged by accused/re spondents that they have been falsely implicated due to enmity. However, no evidence in defence was adduced. THE trial court after hearing the parties found that charge against the accused/respondents are not proved beyond reasonable doubt and acquitted them. Aggrieved by said judgment and order dated 24-09-1993, passed by IIIrd Additional Sessions Judge, Nainital, this appeal was filed before Allahabad High Court on 20-12- 1993, where it was admitted on 09-08-1999, after granting the leave to appeal. THE ap peal is received by this Court under Section 35 of U. P. Reorganization Act, 2000 (Central Act No. 29 of 2000 ). Learned counsel for the appel lant/state argued that the trial court has committed grave error of law in acquitting the accused and in not be lieving the eye-witnesses, examined on behalf of the prosecution. We have carefully gone through the lower court-record and assessed the evidence. No' doubt, there are two alleged eye-wit nesses of the incident, got examined on behalf of the prosecution, namely P. W. I Harjit Singh and P. W. 2 Harjinder Singh. As far as the death of Kishore (deceased) is concerned, it is proved from the evidence of P. W. 5 Dr. Arvind Agarwal read with autopsy report (Ext. A- 5) that Kishore has died due to haemorrhage and shock, as a result of ante mortem injury. The ante mortem injury, recorded in the autopsy report, reads as under : 1. Multiple punctured wound in a area 20cm x 16cm on front of chest mainly on right side and few of medial part of left side of chest and sternum, size vary ing 0. 3cm x 0. 3cm to 0. 4cm x 0. 4cm. No blackening and tat tooing present. 17 pellets recov ered from anterior and posterior chest wall, left and right lung and from myocardium.;