Vinod Prasad, J. - (1.) THE two appellants Ram Veer and Saudan were convicted by Additional Sessions Judge, Court No. 14, Aligarh in Sessions Trial No. 1052 of 1998, State v. Ram Veer and others, under Section 302/34, I.P.C., Police Station Barla, district Aligarh and were sentenced to imprisonment for life with fine of Rs. 3,000 each with further direction that in default of payment of fine each of the accused-appellant shall undergo six months further imprisonment, which conviction and sentence has been challenged in the instant appeal by the appellants.
(2.) ACCORDING to the prosecution case informant Afjal Ahmad was having enmity and litigation with appellant Ram Veer and others. On 21.2.1995, when informant Afjal Ahmad was returning to his house from his field, to have victuals alongwith his brothers Aflaq and Abdul Razaq, then, at 10.00 a.m., in front of the house of Raja Ram and Khem Karan appellants Ram Veer and Saudan alongwith two other accused Mewa Ram and Udai Ram surrounded Abdul Razaq, youngest brother of the informant, and assaulted him with their spades. Hue and cry raised by the informant attracted Shamim Ahmad, Naseem Ahmad and many other co-villagers at the spot who tried to save Abdul Razaq but were kept at bay by Ram Veer appellant at a country made pistol point and with threatening utterances not to come close by otherwise they will be shot dead. Sustaining injuries Abdul Razaq squatted on the ground and his neck was severed by the assailants, who after committing the murder escaped towards village Bai Khurd. Leaving the corpse of his brother at the spot, informant Afjal Ahmad got F.I.R., Ext. Ka-1, scribed through Anees Mia and, after covering a distance of 3 kilometres, lodged it at Police Station Barla, district Aligarh the same day at 11.30 a.m., one and a half hours after the incident, as Crime No. 22 of 1995, under Section 302, I.P.C. Head Moharrir, Siya Ram, P.W. 2 prepared the Chik F.I.R., Ext. Ka-2, and the relevant G.D. entry, Ext. Ka-3, and handed over the investigation of the crime to S.I. Pushpendra Singh, P.W. 5, who first of all copied the chik F.I.R. and the G.D. entry and thereafter recorded 161, Cr. P.C. statement of the informant. Thereafter the Investigating Officer proceeded for the spot and got the inquest report and other relevant documents, Ex. Ka-9 to Ext. Ka-15, prepared under his direction from S.I. K. P. Singh. Investigating Officer also recorded the statements of eye-witnesses Shamim Ahmad, Naseem Ahmad and Anees Mirza and thereafter copied the inquest report and the memo regarding collection of blood stained and plain earth, Ext. Ka-8. Subsequent thereto he recorded the statements of witnesses of inquest, conducted the spot inspection and prepared the site plan, Ext. Ka-7. He had also collected a diary and some papers from near the dead body and had prepared it's recovery memo Ext. Ka-16. Subsequent thereto, on 25.2.1995, Investigating Officer copied the post-mortem examination report, Ext. Ka-4, of the deceased and thereafter got the property of the accused attached. After accused persons were apprehended, their statements were recorded by the Investigating Officer, P.W. 5. Further investigation of the crime was conducted by S.O. O. P. Sachan, P.W. 4, who concluding the same had laid the charge-sheet, Ext. Ka-6, against the accused-appellants. Autopsy on the dead body of the deceased was performed by Dr. S. R. P. Mishra on 22.2.1995 at 4.00 p.m., which was brought to him by Constable Mahesh and Constable Bharat Bhushan. In the estimation of the doctor, deceased was 26 years of age and one day had lapsed since his death. Rigor Mortis was present in both the extremities and following ante-mortem injuries were present on the dead body : "1. An incised wound in mid line scalp 9 cm. x 1.5 cm. x bone deep. The bone is cut (outer table of skull 6 cm. x 1/2 cm. x inner table). 2. An incised wound (R) side mandible at its lower border 3 cm. x 1 cm. x bone deep. 3. There is an incised wound over neck leaving behind headless body. The wound surface on head side area 11 cm. x 11 cm. x all neck structure deep and on base of neck 11 cm. x 11 cm. x all structure of thoracic inlet. Margin of both opposing surfaces of wound are clean cut, the level is 3rd cervical vertebra. All structures of neck are cut-e.g., muscles, skin platysm, vessels, spine medulla - trachea, oenophagm etc." Multiple abrasions, 'R' Delhoid region in an area of 6 cm. x 4 cm." In the opinion of the doctor the cause of death was shock and haemorrhage as a result of sustained injury No. 3. 4. Accused persons were summoned by the Court and their case was committed to the court of sessions for trial as S.T. No. 1052 of 1998, State v. Ram Veer and others. Trial Judge charged all the accused under Sections 302/34, I.P.C. on 27.2.1999 which charges were denied by the accused who claimed to be tried.
(3.) DURING the trial, accused Mewa Ram expired and therefore his trial was abated and another accused-Udai Raj absconded and therefore, his trial was separated by the trial Judge. Only the appellants before us faced the whole trial and were convicted and sentenced as mentioned above. In order to establish the charge and bring home the guilt of the appellants, prosecution, in all examined five prosecution witnesses out of whom Afjal, P.W. 1 was the only witness of fact. Siya Ram P.W. 2 (Head Constable, who had prepared the chik of the G. D. entry), Dr. S. R. P. Mishra P.W. 3 (Autopsy Doctor), O. P. Sachan P.W. 4 (S.O. second Investigating Officer) and S. I. Pushpendra Singh P.W. 5 (First Investigating Officer) were the formal witnesses.;