- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of the Code of Criminal Proce dure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 30-03-1991, passed by learned Additional Sessions Judge Nainital, in Sessions trial No. 48 of 1989, whereby the appellants, namely Makhan Singh, Arujun Singh, Dayal Singh and Jarnail Singh are convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (here inafter referred as I. P. C.) and each one of them is sentenced to undergo impris onment for life under Section 302 read with Section 34 of I. P. C. The accused / appellants are also convicted under Sec tion 201 of I. P. C. and each one is sen tenced to undergo rigorous imprison ment for a period of one year on that count.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that on 14-09-1988, at about 01:00 P. M. , Pappu Singh (deceased) was going in Village Devipur towards Gurudwara when accused / appellants Makhan Singh and Arjun Singh (both sons of Inder Singh), Dayal Singh and Jarnail Singh met him. Accused /appellants Dayal Singh was armed with 'kanta' (pointed weapon having sharp edges near its point with long wooden rod ). The other three accused / appellants were armed with 'lathies'. The four protested to Pappu Singh as to why he leaves his cattle unattended in the fields. On this, there was exchange of hot words be tween Pappu Singh and the accused / appellants, where after the four started giving blows with the weapons they pos sessed, on the person of Pappu Singh. On his raising an alarm, P. W. 1 Pritam Singh, P. W. 2 Bhajan Singh, Charan Singh, Mehar Singh and Karnail Singh reached at the spot. They saw that on receiving blows from the accused / ap pellants, injured Pappu Singh fell down on the ground. When the witnesses tried to intervene, accused / appellants threat ened them of dire consequences. The accused/appellants Makhan Singh, Dayal Singh, Jarnail Singh and Arjun Singh, thereafter, took the injured Pappu Singh after loading his body on a bicy cle, and went towards the Dam. The witnesses chased the accused, on which they threw the body of Rappu Singh near Kisthi Ghat and flee away towards the forest. P. W. 1 Ptitam Singh, thereafter, dictated first information report (Ext. A-1) to PW. 2 Bhajan Singh. He lodged the first information report on the same day i. e. on 14-09-1988, at about 06:30 P. M. , with police station Nanakmatta (Now part of District Udham Singh Nagar ). A check report (Ext. A-17) was prepared by Head Constable Jai Prakash and investigation was taken up by RW, 6 Jagdish Aswal. The Investigating Of ficer went to the spot on 15-09-1988, interrogated Pritam Singh, took the dead body of the deceased in his pos session and prepared the inquest report (Ext. A-2), at 08:00 A. M. He further pre pared police form No. 33 (Ext. A-4), letter (Ext. A-5) to the In-charge Medical Officer, requesting for postmortem examination; sketch of dead body (Ext. A-6); police form No. 13 (Ext. A -7) and sample seal (Ext A -8 ). The dead body was sent in a sealed condition along with necessary papers for postmortem exami nation through P. W. 5 Constable Pradeep Kumar. The autopsy was con ducted by P. W. 4 Dr. J. S. Pangti, on 15- 09-1988, at 02:30 RM. The Medical Officer recorded as many as 11 ante mortem injuries on the dead body of the deceased Pappu Singh and opined in his report (Ext. A-3) that the cause of death of the deceased was comma as a result of ante mortem injuries. Mean while, the Investigating Officer recovered the 'lathies' and 'kanta used in the crime by the accused and prepared memorandum Ext. A-12, of the same. He also prepared site plans (Ext. A-10 and Ext. A-11) of the place where the dead body was found and the place where blows were given to the deceased. After interrogation, the Investigating Officer submitted charge sheet (Ext. A-16) against all the four accused, for their trial in respect of offences punishable under Section 304 and 201 of I. P. C. The Magistrate, on receipt of charge sheet, after giving necessary cop ies. to the accused, as required under Section 207 of Cr. P. C. , committed the case to the court of Sessions, for trial. Learned II Additional Sessions Judge, Nainital, after hearing the partie?, on 07-07-1989, framed charge of offence pun ishable under Section 302 read with Sec tion 34 and the one punishable under Section 201 of I. P. C. against the ac cused / appellants, namely Makhan Singh, Arjun Singh, Dayal Singh and Jarnail Singh who pleaded not guilty and claimed to be tried. On this, pros ecution got examined P. W. 1 Pritam Singh (complainant and eyewitness); P. W. 2 Bhajan Singh (another eyewit ness); P. W. 3 Gopal Singh (witness of recovery memo); P. W. 4 Dr. J. S. Pangti (who conducted the postmortem exami nation and prepared the autopsy report Ext. A-3); P. W. 5 Constable Pradeep Kumar (who took the dead body of Pappu Singh in a sealed cover and guarded the same till the autopsy was done) and P. W. 6 Jagdish Singh Aswal (Investigating Officer ). The entire oral and documentary evidence was put to the accused / appellants under Section 313 of Cr. P. C. , in reply to which they replied that the evidence adduced against them was false. However, no evidence in defence was adduced on behalf of the accused / appellants. Af ter hearing the parties, the trial court found all the four accused guilty of the offence punishable under Section 302 read with Section 34 of I. P. C. and one punishable under Section 201 of I. P. C. After hearing thr parties on sentence, learned trial court sentenced each of the accused / appellants to undergo impris onment for life under Section 30 read with Section 34 of I. P. C. and rigorous imprisonment for a period of one year under Section 201 of I. P. C. Both the sentences were directed to run concur rently. Aggrieved by said judgment and oral dated 30-03-1991, passed by the Additional Sessions Judge, Nainital, in Sessions Trial No. 48 of 1989, this ap peal was preferred by the convicts be fore the Allahabad High Court on 09-04-1991, where it was admitted on 11-04-1991. The appeal is received by transfer to this Court under Section 35 of the U. P. Re-organization Act, 2000, for its disposal.
(3.) BEFORE further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of the deceased Pappu Singh at the time of postmortem examination, which are recorded by P. W. 4 Dr. J. S. Pangti, who conducted the postmortem examination and prepared the autopsy report (Ext. A-3 ). The same are being reproduced below : ij "lacerated wound 6 cm x 2 cm over left aspect of head, scalp deep. ii) Contusion 6 cm x 4 cm over left temporal region, redish in col our, 2j/2 cm above left ear, bleeding from left ear present Hi) Contusion 6 cm x 4 cm over up -. per aspect of right elbow. Redish in colour. iv) Contusion 5 cm x 3 cm over right thigh upper, redish in col our. v) Contusion 6 cm x 3 cm over right knee, redish in colour. vi) Abrasion liner 6 cm x 1cm over from the right leg. 12 cm below of right knee. vii) Contusion 6 cm x 4 cm over left fore arm at middle. viii) Contusion 6 cm x 3 cm of left leg redish in colour. ix) Contusion 3 cm x 2 cm over from the left leg red in colour. x) Contusion 6 cm x 4 cm over from the left leg redish in col our. xi) Contusion 8 cm x 4 cm on back of elbow redish in colour. The Medical Officer who conducted the post mortem examination has opined that cause of death was comma as a re sult of ante mortem injuries. There are two eyewitnesses ex amined on behalf of the prosecution in this case. P. W. 1 Pritam Singh, who is complainant, has stated that on the day of incident, at about 01. 00 P. M. , Pappu Singh (deceased) was going towards Gurudwara when accused / appellants Makhan Singh, Arjun Singh, Jarnail Singh and Dayal Singh met him. The witness further states that Dayal Singh was armed with 'kanta' and rest of the accused / appellants were armed with 'lathies'. P. W. 1 Pritam Singh further states that the accused / appellants pro tested to Pappu Singh as to why he leaves his cattle unattended. On this, there was a quarrel between them, where after Makhan Singh and Arjun Singh started giving blows on the person of Pappu Singh and accused / appellants Dayal Singh and Jarnail Singh also joined them in giving the lathi blows. According to this witness, accused / appellants did not stop there and took the injured Pappu Singh with them, af ter loading him on a bicycle. The wit ness has stated that he and other wit nesses namely Bhajan Singh, Mehar Singh and Karnail Singh tried to inter vene, but they were threatened of dire consequences. When the witnesses chased the accused / appellants they left the dead body of Pappu Singh near Kisthi Ghat and ran away towards the forest. The witness has proved the first information report (Ext. A-1) lodged by him after getting it scribed by Bhajan Singh.;