- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr. PC.), is directed against the judgment and order dated 30. 09. 1993, passed by IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 127 of 1991, whereby accused/ appellant Ishwari Ram, is con victed under Section 302 and also un der Section 307 of Indian Penal Code, 1860 (herein after referred as I. PC.), and sentenced to undergo imprisonment for life (under Section 302 I. PC.), and rigorous imprisonment for a period of five years (under Section 307 I. P. C.)
(2.) HEARD learned counsel for the parties and perused the lower court record. It is a day light DOUBLE MUR DER CASE. Prosecution story in brief is that on 28. 02. 1991, it was a day of HOLI (festival of colours ). Accused/ap pellant Ishwari Ram, Constable of Armed Constabulary (Constable No. 438 A. R) was on his duty of double lock in the sub treasury, Kaladhungi from 12:00 noon to 3:00 p. m. In the Tehsil com pound of Kaladhungi, people were playing Holi. At about 1:00 p. m. , Head Constable Alam Singh (R W. 1) heard sound of firing a shot. At that point he was in front of the treasury. He rose from the place where he was sitting and saw that Diwan Singh (one of the deceased), Peon of the treasury, came towards him in an injured condition and told him that Ishwari Ram (accused/ appellant) has fired shot at him. Thereafter he (Diwan Singh) fell down. Meanwhile, Constable No. 383 AP Narendra Singh (another deceased), went towards Ishwari Ram asking him why he has fired shot on which the accused/appellant (Ishwari Ram) fired next shot at Consta ble Narendra Singh. Seeing this, Head Constable Alam Singh (P. W. 1) gathered courage and tried to overpower Ishwari Ram, who fired one shot at him, which hit at his left hand. However, with the help of other Constables, namely Surendra Singh (P. W. 2) and Constable Girish Chandra, he (Alam Singh) over powered Ishwari Ram and rifle, was snatched from him (Ishwari Rani ). Head Constable Alam Singh (P. W. 1) after han dling over Ishwari Ram to above men tioned Constables, went to Police Sta tion Kaladhungi with the rifle and car tridges, snatched from the accused and lodged First Information Report (Ext. . A-1) at about 1:30 p. m. (i. e. within 1/2 an hour of the incident) on 28. 02:1991. A check report (Ext. A-10), was prepared on the basis of First Information Report at the Police Station and case crime No. 57 of 1991, was registered against ac cused/appellant Ishwari Ram. Necessary entry was made in the general diary. The crime was investigated by Shri S. F Singh, Station Officer of P. S (. Kaladhungi. The injured Diwan Singh, Narendra Singh and Alam Singh were then taken to the Base Hospital, Haldwani. Dr. RD. Pande (P. W. 6) who was Medical Officer in Base Hospital, Haldwani, at 2:40 p. m. examined the injuries of Diwan Singh and prepared injury report (Ext. A-7 ). He further ex amined injuries on the person of Narendra Singh at 2:55 p. m. on that very day i. e. 28. 02. 1991, and prepared injury report (Ext. A-8 ). Thereafter, at 5:00 p. m. the same Medical Officer examined injuries on the person of Alam Singh and prepared injury report (Ext. A- 9 ). AH the three had received fire arm injuries. The injured Diwan Singh, suc cumbed to the injuries on the very day and died. The dead body of the deceased Diwan Singh was taken in possession by the police and necessary papers, inquest. report (Ext. A-17), police form No. 13 (Ext. A-14), sketch of the dead body (Ext. A-I3), and letter to Chief Medical Officer (Ext A-15), were got prepared by police arid the dead body was sent in a sealed cover for post mortem examina tion. Autopsy was conducted on the dead body of Diwan Singh on 28. 02. 1991, at 10:00 p. m. (Night) by Dr. A. N. Saxena (P. W. 5), who prepared post mortem examination report (Ext. A-6 ). Said Medical Officer opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. (The ante mortem injuries are the gun shot injury of entry on the back and gun shot injury of exit in the abdo men ). Later since injured Narendra Singh also succumbed to the injuries, his dead body was also taken in possession by the police and inquest report (Ext; A-16), police form No. 13 (Ext. A-21), sketch of the dead body, sample seal (Ext. A-22), and letter to Chief Medical Officer (Ext. A-20), were got prepared by the police on 01. 03. 1991. The dead body was sent in a, sealed cover for post mortem examination. Dr. K. K. Mishra conducted post mortem examination on 01. 03. 1991, at about 4:00 p. m. and prepared autopsy report (Ext. A-23 ). Said Medical Officer opined that Narendra Singh has died due to shock and haemorrhage as a result of ante mortem injury. During investigation, apart from interrogating the witnesses, the police took the blood stained soil and simple soil from the place of incident. Also, empty cartridges were recovered from the spot and memorandum (Ext. A-5) was prepared. The rifle recovered at the time of incident from the accused/ appellant was sent along with empty cartridges to the Forensic Expert for ex amination. After completion of the in vestigation, the police submitted charge sheet (Ext. A-29) against accused Ishwari Ram for trial in respect of of fences punishable under Section 302 I. P. C. (for commission of murder of Diwan Singh and Narendra Singh) and relating to offence punishable under Section 307 I. P. C. (for attempting to commit murder of Alam Singh ). The Magistrate, on receipt of the charge-sheet after giving necessary cop ies to the accused, as required under Section 207 Cr. P. C. , appears to have committed the case to the Court of Ses sions for trial. Learned Sessions Judge appears to have transferred the case to the Court of Additional Sessions Judge. After hearing the parties, on 25. 09. 1991, Additional Sessions Judge, Nainital, framed charges of offences punishable under Sections 302 and 307 I. P. C. against the accused Ishwari Ram, who pleaded not guilty and claimed to be tried. On this, prosecution got exam ined P. *tt. 1 Head Constable Alam Singh" (complainant and eye witness), R W. 2 Constable Surendra Singh (another eye witness), P. W. 3 Bhagwan Swaroop (third eye witness), P. W. 4 Gopal Dart (in whose presence blood stained soil, simple soil and empty cartridges were taken by the Police and memorandums Ext. A-3, Ext. A-4 and Ext. A-5, were prepared), P. W. 5 Dr. A. N. Saxena (who recorded the injuries found on the per son of Diwan Singh, Narendra Singh and Alam Singh, when they were brought to Base hospital, Haldwani, on 28. 02. 1991), and R W. 6 Dr. RD. Pande (who conducted post mortem on the dead body of Diwan Singh ). The de fence admitted genuineness of certain documents and dispensed with formal proof of post mortem examination report (prepared by Dr. K. K. Mishra) of Narendra Singh and other papers on record, prepared by the Investigating Officer. Forensic Expert's report (Ext. A-30) was also taken on record. The en tire oral and documentary evidence was put to the accused under Section 313 Cr. P. C. In reply to the questions put to the accused, he admitted that on 28. 02. 1991, he was on duty as a Guard in Kaladungi Tehsil on the day of inci dent. He further admitted that he was given rifle and 20 round cartridges for performing the duty. He also admitted in his examination under Section 313cr. RC. that 28. 02. 1991, was a day of Holi festival. However, rest of the evidence was alleged by him as false. The trial court after hearing the parties found that the charge of offence pun ishable under Section 302 I. P. C. and one punishable under Section 307 I. P. C. are proved against accused Ishwari Ram. After pronouncing the judgment on 29. 09. 1993, it fixed 30. 09. 1993, as the date for hearing on sentence. After hear ing on sentence, the trial court sentenced the convict to imprisonment for life un der Section 302 I. P. C. and rigorous im prisonment for five years under Section 307 I. P. C. Aggrieved by said judgment and order, passed by IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 127 of 1991, this appeal was filed before Allahabad High Court on 02. 11. 1993, where it was admitted on 04. 11. 1993, by said court. The appeal is received by this Court by transfer under Section 35 of U. P Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention here the injuries found on the person of de ceased Diwan Singh, deceased Narendra Singh and injured Alam Singh by P. W. 6 Dr. RD. Pande on 28. 02. 1991, when the three were taken in an injured con dition to Base Hospital, Haldwani. Injuries found on the person of Diwan Singh at the time he was taken to hospital, which are recorded in Ext. A-7, are being reproduced below : 1. Wound of exit 5cm x 4cm x depth under observation. On right side of abdomen 5cm above and lateral to umbilicus. Bleeding present. 2. Wound of entry. 5cm x. 5cm x depth under observation Right back 1. 5cm right to midline and 13cm above and posterior to spine right side. Bleeding present. No blackening and tat tooing present. Injuries found on the person of Narendra Singh before his death, by Dr. RD. Pande (P. W. 6), which are recorded in Ext. A-8, are reproduced below : 1. Wound of entry on right side ab domen, 3. 5 cm below umbilicus. 5cm x. 5cm x depth under ob servation. Bleeding present No blackening and tattooing present- 2. Wound of exit 3cm x 2cm x depth under observation on right hip 5. 5cm above and right from top of anal furred. Bleeding present. Injuries found on the person of Alam Singh on the same day by the same Medical Officer, which are recorded in Ext. A-9, are reproduced below : 1. Wound of entry. 8 x. 5. cm x depth under observation on left forearm. Exterior aspect, 8cm above wrist joint. Bleeding present. No blackening, and tatooing present. 2. Wound of exit 2cm x 1cm x depth under observation on left forearm back, 13cm above wrist joint. Bleeding present. Now we come to post mortem examination reports. The post mortem report (Ext. A-6) prepared by P. W. 5 Dr. A. N. Saxena after conducting autopsy on the dead body of Diwan Singh, at 10:00- p. m. on 28. 02. 1991, disclosed following ante mortem injuries : 1. Gun shot wound entry 1cm X 1cm X cavity deep on right side back 1. 5cm right from midline at level of L3, margins inverted and lacerated. No blackening, scorching and tattooing. 2. Gun shot wound exit 4. 5 X 4cm through and through communi cating injury No. 1. Right side front of abdomen 5cm right from umbilicus just below costal margin and lacerated. Margins everted and lacerated. Omentum coming out of wound. The Medical Officer opined that Diwan Singh has died due to shock and haemorrhage, as a result of ante mortem injuries.;