- (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 29-06-1990, passed by the then learned Sessions Judge, Nainital, in Sessions trial No. 160 of 1986, whereby all the four accused / ap pellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh have been convicted under Sec tion 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and one punishable under Section 323 read with Section 34 of I. P. C. Each one of the convicts is sen tenced by the trial court to undergo im prisonment for life under Section 302 read with Section 34 of I. P. C. and rig orous imprisonment for a period of six months under Section 323 read with Section 34 of I. P. C.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that in Village Salwati, within the limits of police station Starganj (now part of Dis trict Udham Singh Nagar) fields of complainant Gurmukh Singh (P. W. 2) and that of the accused / appellant Dayal Singh are adjoining. Their fields were separated by 'medh' (boundary mound ). On 08-12-1985, Gurmukh Singh, P. W. 2 along with his father Pyara Singh (de ceased) had gone to their fields. At about 12:00 noon, Balwant Kaur (P. W. 3), wife of the deceased, came to the field with meals for her husband (Pyara Singh) and son (Gurmukh Singh ). Forty five minutes thereafter, accused / appellants Dayal Singh and his two sons Budh Singh and Resham Singh along with accused / appellant Pahalwan Singh, armed with lathies, reached to the field and started hurling abuses at Pyara Singh and Gurmukh Singh, rais ing objection as to why the boundary mound was disturbed. In reply to it, Pyara Singh told the accused / appel lants that the boundary mound is joint of the parties. This infuriated the ac cused / appellants, who surrounded Pyara Singh and gave lathi blows to him. Pyara Singh fell down in the field and even thereafter, the accused / ap pellants gave lathi blows till he suc cumbed to the injuries, at the spot; Gurmukh Singh (P. W. 2) and Balwant Kaur (P. W. 4) came forward in an at tempt to rescue Pyara Singh. However, they were also inflicted lathi blows by the accused / appellants. Satnam Singh, who was ploughing a nearby field and P. W. 5 Uttam Singh, who was passing through the village on way to his home, witnessed the incident. They challenged the accused, on which the accused / appellants ran away from the place of incident. While fleeing, turban (Ext.-l) of accused / appellant Budh Singh fell on the spot. Gurmukh Singh, P. W. 2, leaving dead body of his father Pyara Singh at the spot went to the police sta tion along with tome other villagers and go the first information report (Ext. A-3) scribed by Kashmir Singh and lodged the same with Police Station Sitarganj, on the very day i. e. 08-12-1985, at about 02:15 RM. On the basis of said report Crime No. 354 of 1985 was reg istered against accused / appellants re lating to offence punishable under Sec tion 302 of I. P. C. Head Constable Inder Singh prepared the check report (Ext. A-4a) of the first information report and made necessary entry in the general di ary at SI. No. 25 (copy of extract of which is Ext. A-5, on the record) in the presence of Sub Inspector Kartar Singh (P. W. 6), who investigated the crime thereafter. The injuries of Gurmukh Singh, P. W. 2 and Balwant Kaur, P. W. 4, were examined on the very day i. e. 08-12-1985, at about 04:00 RM. , at Pri mary Health Center, Sitarganj by Dr. PC. Pandey (P. W. 1) where they were taken by Constable Rajendra Singh and Constable Virendra Singh. The Investi gating Officer, meanwhile, proceeded to the spot and in the presence of the wit nesses, including Balwant Singh (P. W. 8), prepared the inquest report (Ext. A-6) of the dead body of Pyara Singh, after taking the same in his possession. While preparing the inquest report on the very day i. e. 08-12-1985, it was clearly men tioned that there were three noticeable external injuries on the dead body of Pyara Singh. The Investigating Officer further prepared sketch of the dead body (Ext. A-7), police form No. 13 (Ext. A-8), letter (Ext. A-8) to the Chief Super intendent of Civil Hospital, Haldwani, requesting for postmortem examination on the dead body of deceased Pyara Singh. Constable Chandra Pal Singh (P. W. 7) along with constable Asif Pervez took the dead body in a sealed condi tion for postmortem examination. Mean while, site plan (Ext. A-10) was prepared by Investigating Officer on 08-12-1985, itself. The postmortem examination was conducted on 09-12-1985, at about 11:00 A. M. by Dr. C. N. Tiwari, P. W. 3, in Civil Hospital, Haldwani. The seals on the dead body remained intact through out. Dr. C. N. Tiwari (PW. 3) on postmor tem examination did not record any ante mortem injury. He opined that he could not ascertain cause of death and di rected to preserve the viscera. On the other hand, on 08-12-1985, at 05:45 P. M. , accused / appellant Dayal Singh lodged a cross first information report with police station Sitarganj, recorded by Head Constable, Inder Singh (C. W. I), who prepared the check report (Ext. C-1) and made entry in the general diary at SI. No. 36. Said cross case was reg istered as Crime No. 354-A of 1985 under Section 307 of I. P. C. against Gurumukh Singh (son of deceased Pyara Singh ). However, after completion of investigation, final report was submit ted in the cross case lodged by accused / appellant Dayal Singh and a charge sheet (Ext. A-ll) was filed by the po lice against accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh, for their trial in respect of offence punish able under Section 302 of I. PC. 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 Sessions Judge after hearing the parties, on 27-10-1987, framed charge of offence punishable under Sec tion 302 read with Section 34 (for com mitting murder of Pyara Singh), the of fence punishable under Section 323 read with Section 34 of I. P. C. (for voluntar ily causing hurt to Gurmukh Singh, and the offence punishable under Section 323 read with Section 34 of I. P. C. (for voluntarily causing hurt to Balwant Kaur ). The accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh pleaded not guilty and claimed to be tried. On this, prosecution got examined PW. 1 Dr. P. C. Pandey (who recorded the injuries found on the person of Gurmukh Singh and Balwant Kaur); P. W. 2 Gurmukh Singh (complainant and injured eyewit ness); P. W. 3 Dr. C. N. Tiwari (who con ducted the postmortem examination and prepared the autopsy report Ext. A-4); P. W. 4 Balwant Kaur (injured eyewitness); P. W. 5 Uttam Singh (a chance eyewit ness); P. W. 6 Kartar Singh (Investigating Officer); P. W. 7 Constable Chandra Pal Singh (who took the dead body of Pyara Singh in a sealed condition for postmor tem examination and guarded the same till it was handed over for autopsy) and P. W. 8 Balwant Singh (a witness before whom inquest report of dead body of Pyara Singh was prepared ). After pros ecution evidence was over the court got examined C. W. 1 Head Constable Inder Singh (who prepared the check report of the cross first information lodged by Dayal Singh, at 07:45 hours, on 08-12-1985) and C. W. 2 Dr. K. RS. Chauhan, Medical Officer (who recorded the inju ries on the person of accused / appel lant Dayal Singh. The entire prosecution evidence and the evidence adduced by the court witnesses were put to the ac cused / appellants under Section 313 of Cr. P. C, on 23-12-1988 and 04-04-1990, 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. After 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. , for committing murder of Pyara Singh and they are found guilty also of offence punishable under Section 323 read with Section 34 of I. PC. , for vol untarily causing hurt to Gurmukh Singh and Balwant Kaur. After hearing the parties on sentence, learned trial court sentenced each of the accused / appel lants to undergo imprisonment for life under Section 302 read with Section 34 of I. P. C. and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I. P. C. for voluntarily causing hurt to Gurmukh Singh and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I. P. C. for vol untarily causing hurt to Balwant Kaur. All the sentences were directed to run concurrently. Aggrieved by said judgment and order dated 29-06-1990, passed by the Sessions Judge, Nainital, in Sessions Trials No. 160 of 1986, this appeal was preferred by the convicts before the Allahabad High Court on 02-07-1990, where it was admitted on 03-07-1990. 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, it is pertinent to mention here the injuries ob served by the witnesses at the time when the inquest report of deceased Pyara Singh is prepared. The inquest report (Ext. A-6) on the record shows that there were three external injuries visible on the dead body of Pyara Singh. The three external injuries mentioned in the in quest report Ext. A-6) are as under : i) Swelling lump on the head, ii) Swelling on the hip. Hi) Abrasion on the right leg near the ankle. The above three Injuries mentioned in the inquest report, though, does not find corroboration from the postmortem Deport, but they are also shown in the sketch of the dead body Ext. A-7) of de ceased Pyara Singh. The inquest report (Ext. A -6) and the sketch of the dead body (Ext. A-7) were prepared on 08-12- 1985. PW. 3 Dr. C. N. Tiwari who con ducted the postmortem examination and prepared the autopsy report (Ext. A-4) admits in his examination-in-chief itself that the dead body was received along with inquest report and other papers. This Medical Officer could not explain as to why he did not thought it just and proper to inform the police or to the Chief Medical Officer to get done fresh postmortem examination by another Medical Officer, as he did not find any ante mortem injury on the dead body of the deceased, ki his cross-examination, he admits having received a letter on 13th January 1986, from Senior Super intendent of Police, Nainital, seeking his explanation as to why he handed over the dead body in such circumstances to the relatives without informing the po lice on noticing the discrepancy. (P. W. 3 Dr. C. N. Tiwari, appears to have been permitted to be cross-examined by the prosecution under Section 154 of the Indian Evidence Act, 1872 ). On going through the entire evidence on record, we find the conduct of P. W. 3 Dr. C. N. Tiwari is highly doubtful and for the rea sons which we would like to discuss in the following paragraphs would indicate that the act on the part of PW. 3, Dr. C. N. Tiwari. constitutes fabricating false evidence (Section 192 of I. P. C. ). The check report (Ext. C-1) of the cross first information report lodged by accused /appellant Dayal Singh with police station Sitarganj itself shows that on 08-12-1985, incident took place in the field and in 'maar PEET Pyara Singh (deceased) fell down. Accused / appellant Dayal Singh has alleged in his cross first information report that after said 'maar PEET, Gurmukh Singh came with a gun from his house and fired at Dayal Singh, which injured his right leg. Though, the accused / appel lants have denied having lodged any cross first information report, but state ment of C. W. 2, Dr. K. P. S. Chauhan, Medical Officer, who examined injuries on the person of Dayal Singh on 08-12-1985, corroborates the fact that ac cused / appellant Dayal Singh had suf fered on that day following injuries, which are recorded in Ext. C-4. The same are being reproduced as under: i) Multiple small round lacerated wound of 0. 2cm x 0. 2cm on up per 2/3 of right leg on inner side. Wound is elliptical in shape, fresh blood oozing out. No tat tooing, blackening or scorching. iii) Two small round elliptical lacer ated wound of 0. 2cm x 0. 2cm on inner side of right ankle, 2. 5cm apart from each other. Edges inverted. Fresh oozing of blood found. No tattooing, blackening or scorching found. In the opinion of the doctor both the injuries were caused by firearm.;