- (1.) THIS appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 12-0/-1991, passed by learned Sessions Judge, Chamoli at Gopeshwar, in Sessions Trial No. 8 of 1990, whereby the appellants, namely, Trilok Singh, Jawahar Singh and Mahipal Singh are convicted under Section 304/34 read with Section 120-B Indian Penal Code, 1860 (hereinafter referred as I. P. C.) and each one is sentenced to imprisonment for life.
(2.) WE heard learned counsel for the parties and perused the trial court's record. Brief facts of the case are that it was day of 'shivratri' on 23-02-1990. On that day there was fair in Dewal. Complainant P. W. 1 Devendra Singh and his brother Laxman Singh (deceased) had also gone there. When complainant was returning from the fair, near a Dak Banglow he saw accused /appellants Trilok Singh and Jawahar Singh on ex hortation of accused / appellant Mahipal Singh beating his brother Laxman Singh (deceased ). However, after the incident was over accused / appellants as well as the complainant and his brother went ahead. On the way, near Malgad gorge, a bus bearing registration no. U. S. Y. 3612, was com ing from Dewal and going towards Tharali. Laxman Singh (deceased) waived his hand in an attempt to get stopped the vehicle so that he may also board in the bus on his journey to his village. The vehicle was being driven by accused / appellant Trilok Singh, who crushed Laxman Singh under the tyres of the bus. The bus stopped about 50 meters ahead and accused / appellant Trilok Singh and Jawahar Singh got down and ran away. When the com plainant took his injured brother Laxman Singh to hospital he was declared dead. The First Information Report (Ext. A-1) of the incident was lodged by complain ant P. W. 1 Devendra Singh with Police Out Post Tharali on the very day at about 19. 00 hours which is registered as EI. R. No. 6 of 1990 against Trilok Singh relating to offence punishable under Sec tions 279/304-A. I. P. C. P. W. 7 B. P. Sharma, Station Officer of Police Sta tion Chamoli conducted the investiga tion. He took the body of the deceased in his possession and prepared inquest report (Ext. A-10), letter to Chief Medi cal Officer (Ext. A-11) and other neces sary papers including site plan. The In vestigating Officer also took sample soil and blood stained soil from the spot and prepared (Ext. A-7 ). The body was sent for post mortem examination. Dr. M. C. Verma conducted the autopsy on the dead body and prepared the post mortem examination report. After com pletion of the investigation the police submitted charge sheet (Ext. A-12) against the appellants Trilok Singh, Jawahar Singh and Mahipal Singh for their trial in respect of offence punish able under Section 304/34 read with Section 120-B I. P. C. The Magistrate on receipt of the charge sheet, after giving necessary cop ies to the accused as required under Sec tion 207 of Cr. P. C. , committed the case to the court of sessions for trial. Learned Sessions Judge after hearing the parties on 03-09-1990 framed charge of offence punishable under Section 120-B and one punishable under Section 304 read with Section 34 of I. P. C. against all the three accused namely, Trilok Singh, Jawahar Singh and Mahipal Singh who pleaded not guilty and claimed to be tried. On this prosecution got examined P. W. 1 Devendra Singh, complainant and an eyewitness, P. W. 2 Dalveer Singh, an eye witness, who also lodged a separate re port Ext. A-2 with the Police Out Post, Tharali, P. W. 3 Jay Datt Joshi, Head Constable, who conducted the technical examination of vehicle registration no. U. S. Y. 3612, P. W. 4 Khilaf Singh, father of the deceased, P. W. 5 constable Balveer Singh, who prepared check re port (Ext. A-4) on the basis of the First Information Report (Ext. A-1), P. W. 6 Dr. B. H. Rijvi who proved the autopsy re port (Ext. A-6) and P. W. 7 B. R Sharma, Investigating Officer. The prosecution story was put to the accused under Sec tion 313 of Cr. P. C. in reply to which the accused / appellants alleged the same to be false and pleaded that they were implicated falsely due to enmity. How ever, no evidence was adduced in de fence. The trial court after hearing the parties found all the three accused namely, Trilok Singh, Jawahar Singh and Mahipal Singh guilty of offence punishable under Section 304 read with Section 34 and 120-B I. P. C. Thereafter the trial court heard them on sentence and awarded each of the convict impris onment for life. Aggrieved by said judg ment and order dated 12-07- 1991, passed by learned Sessions Judge, Chamoli, this appeal was filed by the convicts before Allahabad High Court on 22nd July 1991, where it was admitted. The appeal is received by this Court un der Section 35 of U. P. Reorganization Act, 2000, for its disposal.
(3.) BEFORE further discussions we think it just and proper to reproduce the anti mortem injuries mentioned in the post mortem examination report (Ext. A-6) - (i) A lacerated wound size 10x11 cm present over left side of the cheek. (ii) A lacerated wound size 17x5cm present over the anterior aspect of left shoulder. (Hi) Bony deformity of left side of chest. (iv) Lacerated wound size 5x6cm present over the left elbow joint. (v) Abrasion size 3x 4cm over the anterior aspect of the left wrist. (vi) Bony deformity of left elbow joint. (vii) Lacerated wound size 7x3cm present over the middle of left palm, (viii) Multiple abrasions present over anterior of right knee. (ix) Abrasions size 5x8cm present over middle aspect of the left leg. On internal examination, the medi cal officer found left clavicle and 2nd rib to 8th rib fractured. The Doctor also found pleura lacerated. He also found larynx and trachea lacerated and con gested. Left lung was also found lacer ated and congested. The heart was also found lacerated and congested. The medical officer Dr. M. C. Verma who conduced the post mortem examination opined in the post mortem examination report that death of the deceased has been caused due to shock and hemorrhage as a result of anti mortem injuries sustained. P. W. 1 Devendra Singh (com plainant and brother of the deceased) has stated that on 23-2-1990, he had gone to Shivratri mela at Dewal. His brother Laxman Singh (deceased) had also gone there. When he was coming back from the fair on the way he saw accused appellants Trilok Singh and Jawahar Singh beating his brother Laxman Singh. After the said incident accused / appellants as well as the com plainant and his brother went ahead. When they reached near Malgad gorge a bus Registration No. U. S. Y. 2612 was coming from Dewal and going towards Tharali. Laxman Singh waived his hand to stop the bus. Accused/appellant Trilok Singh was driving the bus who crushed Laxman Singh on the road. However, according to this witness the bus stopped after 50 meters ahead. Ac cused Trilok Singh and Jawahar Singh got down from the bus and ran away. P. W. 2 Dalveer Singh is not only an in dependent eyewitness but also the driver of the bus who alleges that accused / appellants Trilok Singh and Jawahar Singh boarded the Bus before the inci dent and committed marpeet with him (Dalveer Singh, Driver ). He further states that Trilok Singh himself started driving the bus thereafter. This witness nowhere says that intentionally Trilok Singh crushed Laxman Singh under the bus. What he says is that Laxman Singh waived his hand to get the bus stopped but he got crushed under the tyres of the bus.;