Imtiyaz Murtaza, J. - (1.) PRESENT appeal stems from Session Trial No. 308 of 1979 whereby IVth Additional Sessions Judge, Meerut entered the verdict of conviction of the appellants namely Dhani Ram, Dharam Pal, Mahendra and Vijendra under Section 302 read with Section 34, I.P.C. and each of them have been visited with the penalties of imprisonment for life vide judgment and order dated 23.2.1981 and 7.5.1981 respectively.
(2.) AS a prelude, it is alleged in the F.I.R. that the accused persons were inimical to the complainant and the enmity was triggered by the murder of Gaje Singh brother of Dharam Pal accused in which Charan Singh and others had been arrayed as accused but the trial of the case culminated in acquittal of Charan Singh and others. AS a result of acquittal, the accused persons were fuming with acerbity towards the family of the deceased. It is further stated that Badan Pal deceased who happened to be the nephew of Charan Singh, had been staying at tube well those days preparing for ensuing High School Examination as his house had no electricity connection in the village and other witnesses namely, Gaj Pal P.W. 2 and one Nepal Singh used to join him at the tubewell in the night. The aforesaid tubewell, it is further unfolded, is situated in the jungle of village Sarawa. The abbreviated version as unfolded in the F.I.R. scribed by Devendra Singh at the dictation of Charan Singh complainant at P. S. Kharkhauda district Meerut is that on 26.3.1979, the aforesaid witnesses namely, Gaj Pal P.W. 2 with Nepal Singh accompanying him left for tubewell in the evening carrying with them the meal for Badan Pal and on way to tubewell, they were joined by Tedha P.W. 3 who was also on way to his field situated adjoining the tubewell for watering the field. It is further alleged that at about 7.30 p.m. when they were approaching the tubewell and were very near to it, they heard shot being fired upon which they accelerated their paces and called out as to who was there upon which the accused persons aforesaid emerged from the tubewell room who were armed variously namely accused Dhani Ram and Dharam Pal had country made pistol in their hands while Vijendra accused and Mahendra were armed with ballam and lathi respectively. On being confronted the accused persons scampered away towards north. It is further stated that all the three witnesses gave hot chase to the accused persons but they succeeded in making good their escape. On coming back to the room of the tubewell, the witnesses found Badan Pal lying in pool of blood and had succumbed to his injuries. It is further mentioned that they recognize the accused persons in the light shed by the bulb fixed at the top of the tubewell and also in the torch light which they carried in their hands. The report of the occurrence, it would appear, was scribed by one Devendra Pal at the dictation of Charan Singh P.W. 1 which was lodged at the police station Kharkhauda at 11.30 a.m. the same day. The police station, it would further appear, lies at a distance of 5, 1/2 miles from the place of occurrence. In this matter, the investigation was initially entrusted to S.I. Rajveer Singh who commenced investigation and to begin with, he left for the place of occurrence alongwith constable Ramesh Chand P.W. 9 and Gopi Chand. The Investigating Officer completed the formalities of preparing panchayatnama, photo lash and challan lash and also drew sketch map of the spot and collected blood stained and simple earth. He also recovered two Tiklis of cartridge from the place of occurrence which were sealed on the spot. Thereafter, the dead body was sealed and dispatched for post mortem examination escorted by constables Ramesh Chand and Gopi Chand. He conducted investigation upto 29.3.1979 and thereafter the investigation came to be entrusted to S.I., V. P. Saxena (P.W. 5) by the order of Circle Officer Police. By that time, accused persons continued to escape the police dragnet. On 11.4.1979, the Investigating Officer came to know that the accused persons excepting Dhani Ram had surrendered in the Court and had been sent to the person. The accused Dhani Ram, who was a constable in Delhi police was arrested on 19.4.1979 at Meerut. The Investigating Officer also went to Delhi where accused Dhani Ram was constable in order to rummage through the papers. He finally submitted the charge-sheet in the Court on 28.5.1979. The post mortem on the dead body was conducted on 8.5.1979 by Dr. M. C. Varshney and he found one gun shot wound of entry eight in number in an area of 6 cm. x 5 cm. on the right side of the neck just above the clavicle and lower part of neck. The dimension of wound was stated to be ranging from 1 cm. x 0.15 cm. to 0.5 cm. x 0.5 cm. x bone deep. The doctor found no blackening or scorching around the wound. The Doctor opined that the causative factor of death of Badan Pal was shock and haemorrhage resulting from the ante mortem injury. The doctor also opined that death occurred about one day before the post mortem examination and that it was possibly caused at 7.30 p.m. on 26.3.1979.
(3.) AFTER submission of charge-sheet, the case was committed to the Court of Sessions and the Sessions Judge framed charges under Section 302 read with Section 34, I.P.C. In order to substantiate its case, the prosecution examined P.W. 1 Charan Singh, P.W. 2 Gaj Pal and P.W. 3 Tedha, P.W. 4 H. C. Devi Ram, P.W. 6 Dr. M. C. Varshney, P.W. 7 S.I., Raj Veer Singh P.W. 9 Constable Ramesh Chandra, P.W. 10 S.I. Bhawabi Das Chopra and P.W. 11 Constable Rishi Pal out of which P.W. 1 Charan Singh P.W. 2 Gajpal and P.W. 3 Tedha were examined as ocular witnesses of the occurrence.;