VINOD PRASAD,VIRENDRA SINGH,J - (1.) THE three sibling agnate brothers Surya Kant, Mani Kant and Chandra Kant were tried by Sessions Judge, Saharanpur in S.T. No. 143 of 2003 (State Vs. Surya Kant and others) for offences under Sections 302/34 and 307/34 I.P.C. relating to P.S. Titro, District Saharanpur. Finding their guilt established to the hilt for offences under Sections 302/34 and 323/34 I.P.C., trial Judge convicted them for the aforesaid offences and sentenced them to life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to under go six months further rigorous imprisonment on the first count and six months R.I. on the second count. All the three appellant brothers have questioned the legality and sustainability of their said convictions and sentences in this court by filing the instant appeal. Prosecution allegations against the appellants, as was disclosed in the written report Ext. Ka 1 and subsequently stated during the trial by the informant P.W. 1 Vikash Sharma are that Aatma Ram had three sons Shiv Charan,Hari Om and Devi Chand. Informant Vikash Sharma is the son of Shiv Charan and the deceased Ashwani Kumar was the son of Hari Om. Devi Chand has sustained injuries in the incident in question. Hari Om had sale proceeds of his sold berseem due to appellant Surya Kant, who kept on dilly dallying said payment. Causa causans of the occurrence was that on 15.7.2002 at 7.30 p.m. Ashwani Kumar(deceased) a youth of 18 years, along with Vikash Sharma, informant went to the house of appellant Surya Kant asking for the said payment. Affronted by the demand, which the appellant took to be a temerity,they firstly vetuparised the deceased and the informant and then accosting them Surya Kant and Chandra Kant picked up knives and Mani Kant picked up a sariya. Two of the Appellants armed with knives ripped the body of the deceased with seven stab and incised wounds with their knives. Mani Kant however, assaulted informant and Devi Chand only. Hue and cry raised by the informant and the other witnesses, attracted many people at the spot on which accused persons made their escape good. Murderous assault had imbibed the area with terror stricken psychosis and the local inhabitants had pulled down their shutters, windows and had closed their doors. When the informant was transporting injured to P.H.C. Gangoh for medical help Ashwani Kumar yielded to sustained injuries and lost his life. Written FIR Ext. Ka 1, was got scribed by Satish Kumar by the informant, who after covering a distance of 9 kms, lodged it at police station Titro on the same day at 9.20 p.m.
(2.) CONSTABLE Fakir chand, P.W. 6 registered Ext. Ka 1, prepared the chik FIR Ext. Ka 6 and the G.D. entry Ext. Ka 7 and entrusted the investigation to S.I. Sri Jaivir Singh Rathi, P.W. 7. Commencing investigation, I.O. proceeded for the spot, conducted inquest on the dead body of the deceased in the night itself from 10 pm to 11.30 pm, prepared the inquest report(Ext. Ka 8) and other necessary documents of chalan Lash, photo lash, letter to RI and to CMO. etc( Ext. Ka9 to Ka 12) and dispatched the sealed dead body to the mortuary for autopsy examination through constables Sanjay Kumar and Rishipal. Station officer K.K. Kanaujiya, PW9, meanwhile reached at the spot and hence continued investigation was conducted by him, who first of all interrogated the informant and recorded his 161 Cr.P.C. statement and thereafter collected the blood stained and plain earth ( Material Ext.1 and 2), from the spot and prepared its recovery memo Ext. Ka 13.Conducting spot inspection S.O. prepared the site plan Ext. Ka 14. On 19.7.2002 I.O. K.K. Kanaujiya P.W. 9, copied the postmortem examination report and injury reports. The three appellants were arrested by the R.P.F. On 18.7.2002 for breaching provisions of Railways Act and were lodged in jail. The second I.O. S.O.Kanaujia got this information on 23.7.2002 and therefore he interrogated the appellants inside district jail and on the basis of their disclosure statements and at their pointing out recovered weapons of assault on 1.8.2002 and prepared its recovery memos Ext. Ka 15 to Ext. Ka 17. Concluding investigation, PW9 S.O. K.K.Kanaujia charge sheeted the appellants on 4.8.2002, vide charge sheet Ext. Ka 19. During the course of the investigation, I.O. had sent for forensic science examination blood stained cloths etc. and its examination report dated 18.11.2002 has been proved by him as Ext. Ka 20. Autopsy on the dead body of the deceased Ashwani Kumar was conducted on 16.7.2002 at 4.00 p.m. by Dr. A.C. Sharma, P.W. 5, who has proved his post mortem examination report as Ext. Ka 5. Autopsy examination report indicate that the deceased was 18 years of age having an average built muscular body. Rigor mortise had passed off from his upper limbs and was present in the lower limbs. His both eyes were closed. Doctor has noted following ante mortem injuries on the corpse of the deceased:- "1. Incised wound 1cmx 0.3cm x muscle deep just above the left eye brow. 2. Stab wound 2.5cmx1.5cmxthe chest cavity deep on front of left side of chest, 1.5cm below left nipple, directing inwards and medially. 3. Stab wound 2.5cmx1.5cm x chest cavity deep on front of left side of chest, 1.5cm below injury no. 2 directing medially. 4. Stab wound 2.5cm x 1.5cm x chest cavity deep on the lateral aspect of left side of chest, 11cm lateral to left nipple directing towards right. 5. Stab wound 2.5cm x 1.5 cm x chest cavity deep on postero lateral aspect of left side of chest just lateral to scapula, 12cm distal to accomion. 6. Stab wound 2.7 cm x 1.5 cm x abdominal cavity deep on the antero lateral aspect of abdomen just below rib cage 13 cm from umbilicus. 7. Incised wound 4.5 cm x 2cm x muscle deep behind left elbow joint. " Doctor has further noted that muscle,ribs, pleura on the left side underneath injuries no. 2,3,4 and 5 were cut and one liter of blood was present in pleural cavity. Right side lung was cut underneath injuries no. 3 and 4 and pericardium was cut under injury no. 2. There was a cut of 0.7 x 0.3 x 1cm deep in the mayocardium of left ventricle, and chambers of heart were empty. Muscles and peritoneum under injury no. 6 were cut. 200 gms of semi digested food was present in the stomach and intestines contained gases, fluid and fecal matter. In the opinion of the doctor cause of deceased death was shock and hemorrhage as a result of sustained ante mortem injuries Nos. 2, 3, 4, 5 and 6.
(3.) INJURED informant was medically examined the same night 16.7.2002 at 0.25 a.m. at PHC Gangoh, by doctor R.K. Goel PW4 and following two injuries were detected on his torso:- "(1) Linear Abrasion 6cm x 1 cm on the dorsal aspect of lower part of Rt. Forearm, Colour of abrasion bright red. (2) Linear Abrasion 10 cm x 1.5 cm on the torso lateral surface of upper of ½ Rt. Thigh, colour of abrasion bright red. " ;