- (1.) PRAFULLA C. Pant, J. This appeal, preferred under section 374 (2) of Code of Criminal Procedure, 1973, (hereinafter referred as Cr. P. C.) is di rected against the judgment and order dated 17-12-1993 passed by III Addi tional Sessions Judge, Nainital, in Ses sions Trial No. 344 of 1989,-whereby ac cused / appellants - Nandan Singh, Pooran Singh and Bachchey Singh are. convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I. PC. ). Each one of three is sentenced to imprisonment for life by the said court.
(2.) HEARD learned counsel for the parties and perused the lower court record. Prosecution story, in brief, is that on 29-06-1989 at about 8 a. m. Mohan Singh (deceased), who was Subedar in the Indian Army, next come to his vil lage - Bandarjuda on leave. He was in his house when accused appellant -Nandan Singh, armed with PATAL (heavy sharp edged weapon), Pooran Singh, also armed with PATAL and Bachchey Singh armed with LATHI (Rod) came to his house and started beating him with the weapons they pos sessed. Mohan Singh having suffered in juries of PATAL and LATHI fell uncon scious. Though no motive has been men tioned in the First Information Report, but it has come on record in evidence that on the north sids of Mohan Singh's house, there is a plot no. 651 towards which Mohan Singh was making opening of his house and accused oriented to it, as they claimed said plot no. 651 belonging to their relative Himmat Singh. According to the prosecution, the incident is said to have been witnessed by Shiv Raj Singh (PW1) brother of the deceased; Sher Singh (PW 2) relative and neighbour of the deceased; Bachchi Ram (PW 3), who is said to have been engaged as Carpenter to make opening in the house of Mohan Singh; Radhika Devi (PW4) widow of the deceased; and Keshar Singh (PW 7) neighbour and nephew of the deceased. The First Information Report of the incident was lodged on the very day by Shiv Raj Singh (PW 1) at about 11. 40 a. m. with the Police Station -Ram Nagar, where the crime was regis tered against three accused relating to offence punishable under Section 307, I. P. C. However, since Mohan Singh died on the same day the crime was con verted into one punishable under Sec tion 302, I. P. C. on the next day i. e. 30-06-1989. Sub Inspector - Tara Dutt Joshi (PW 8) started investigation. He inspected the spot, prepared the site plan (Exhibit A4 ). The Investigation Of ficer prepared inquest report (Exhibit A9) on 29- 06-1989 i. e. on the day Mohan Singh succumbed to injuries, sketch of dead body (Exhibit A10) and police form (Exhibit All ). Dead body of Mohan Singh was sent in sealed condition for postmortem examination. Dr. N. K. Agarwal (PW6) conducted the postmor tem examination on the dead body on 30- 06-1989 and prepared the autopsy report (Exhibit A3 ). He opined that de ceased died due to shock and haemor rhage caused by injury suffered by him on his head (ante mortem injury no. 1 ). Meanwhile, the investigation was taken over by the Station Officer Sri J. D. Arya, who arrested the accused, recov ered the weapon used in the crime on pointing out of accused Nandan Singh, and on completion of the investigation submitted chargesheet (A 14) against all the three accused.
(3.) MAGISTRATE on receipt of chargesheet, after giving necessary cop ies to the accused as required under section 207, Cr. P. C. , appears to have committed the case to the sessions for trial. Learned Sessions Judge, Nainital, to whom the case was committed, after hearing the parties on 05-12-1989, framed the charge of offence punishable under Section 302, read with Section 34, I. P. C. , against all the three accused namely Nandan Singh, Pooran Singh and Bachchey Singh. AH the three ac cused pleaded not guilty and claimed to be tried. Thereafter, the case appears to have been transferred to Additional Ses sions Judge for further trial. On this, prosecution got examined PW1 - Shiv Raj Singh, eye-witness and complainant, who is relative and neighbour of the deceased; P. W 2 - Sher Singh, eye wit ness, who is relative and neighbour of the deceased; P. W 3 - Bachchi Ram, in dependent eye witness, who was work ing in the house of Mohan Singh (de ceased); P. W 4 - Radhika Devi, eye wit ness, widow of the deceased; P. W 5 Dr. S. S. R Verma, who recorded the injuries on the person of Mohan Singh in Pri mary Health Centre Bailparao, before his death; P. W 6 - Dr. N. K. Agarwal, who conducted the postmortem examination of the dead body of the deceased; P. W 7 - Kesar Singh, eye witness, who is nephew and neighbour of the deceased and PW8 - Sub Inspector Tara Dutt Joshi, who started the investigation. Apart from 8 witnesses, Constable Kishan Chandra (PW 9) has filed affi davit that dead body of Mohan Singh (deceased) was taken for postmortem in sealed cover. The oral and documentary evidence was put to the three accused under Section 313, Cr. P. C. , in reply to which they alleged it to be false. Ac cused Nandan Singh at the end of his reply submitted that he used LATHI having sharp edged iron leaf with it against Mohan Singh in self defence. Other two accused simply denied the evidence produced by the prosecution as false. Accused Bachchey Singh-submit ted that he belongs to Ranikhet, a place 115 kms: away from the place of inci dent. It is further alleged by him at the end of his reply that as he is brother- in-law of accused Nandan Singh and falsely implicated. In defence DW 1 Constable Gopal Singh was got examined to prove the first information report (cross version of one lodged by Shiv Raj Singh with Police Station - Ram Nagar on 29-06-1989) lodged by Nandan Singh. After hearing the parties, the Trial Court found all the three accused guilty of charge offence punishable under Sec tion 302 read with Section 34, I. P. C. and after convicting and hearing on the sen tence, sentenced each one of the con victs to imprisonment of life. Aggrieved by the judgment and order dated 17-12-1993 passed by learned III Additional Sessions Judge, Nainital in Sessions Trial No. 344 of 1989, this-appeal was filed before Allahabad High Court on 20-12-1993 where it was admitted on 21-12-1993. The appeal is received by this court by transfer under Section 35 of U. P Re organization Act, 2000.;