- (1.) S. K. Agarwal, J. This is an appeal Preferred by Chandra Maul, Shashi Maul, uresh Ram and Ram Ashrey against their convictions under Section 302/34 I. P. C. vide S. T. No. 40 of 1978 and consequence sentence to imprisonment for life.
(2.) THE facts giving rise to the prosecu tion version as available from the record are that on 11-3-1977 at 1. 00 p. m. between village Kusumha and Kanhai the present incident had taken place involving these appellants and the deceased Fanendra. THE appellant Suresh was given the role of exhortation. Chandra Maul and Shashi Maul were armed with single barrel guns. After the first shot by Chandra Maul Shashi Maul also fired upon him to prevent the deceased from escaped. As a result of shots the deceased fell down. Chandra Maul came close to deceased and again fired a shot. THE witnesses from in side the Arhar field raised an alarm. THEy claimed that Ram Ashrey was giving to accused Chandra Maul and Shashi Maul cartridges. After assaulting the deceased to death they laughed full throat and declared "murder of their father is avenged. " THEreafter the assailants moved towards west. Witnesses after departure of the assailants came at the spot where the victim was lying. THE deceased was also holding a lathi, which was pilfered by the pellets. THE pellets were visible. THE report of gunshot attracted many villagers to the spot alongwith ihechaukidar. Leav ing the Chaukidar and the family members near dead body informant left the place for police station to lodge a written report. It is marked Ext. Ka-1. It is alleged and this report was transcribed by PW-1 Virendra on the spot. It was taken down only his dictation by Brij Kishore PW-2. AFter registration of the case and preparation of check report investigation was com menced. Site plan was prepared. All the relevant papers for the purpose of post mortem examination including inquest memo were prepared. THE statements of the witnesses were also recorded. THEre after charge sheet was submitted in this case by P W-6 Abhai Singh. Station Officer. Police Station Bclipar. THE distance of the police station from the spot was 8 miles. The autopsy on the dead body of Fanendra deceased was conducted by Dr. Brahm Gopal Mathur PW- 10 post-mor tem examination report indicates presence of lacerated punctured wound above left shoulder slightly fa'k. vard 1 1/2" x 1 1/4" x tissue deep. Bone was frac tured underneath the injury. Injury No. 2 was its exist wound Injury No. 3 isentry and and No. 4 was its exit wound. It had four punctured wounds of the dimension 11/1" x 1/4 in an area of 4-1/2" x 4-1/2" outer to left nipple. Injury No. 5 had two punctured wounds with black margins. Injury No. 6 is exist wound of injury No. 5 which was entry of single pellet of the dimension 1/2" x 1/4" on left forearm with everted margin. One pellet came put on pressing the other wound. Injury Nos. 7 to 11 are lacerated wounds. Injury No. 7 has dimension 1-1/2" x 1/2" x muscle left side head posterior 3" from left ear. Injury No. 8 is a lacerated wound in the dimension of 1/4" x 1/4" x muscle, 1" behind left ear. Injury No. 9 is in the dimension of 1/2" 1/4" x muscle x 1' behind left arm. Injury No. 5 is in the demension of 1 /2" x 1/4" x skin at the root of left ear lobe. Injury No. 11 is another lacerated wound in the dimension of 1/4" x 1/5" x skin on left temple region. Injury No. 10 is an abrasion of 2" x 1" on left check in front of left ear, probably caused by a gras-ing pellet. All these injuries except injury No. 5 are on the left side of head, face and ear. Dr. Brahm Gopal Mathur has stated that the death of deceased occurred in between 24 to 36 hours. He has further stated that injury No. 4 to 6 were result of firearm and rest on the injury can be caused as a result of fall on the ground or due to friction with hard blunt object. The death of the deceased could take place on 11-3-1977 at 1. 00 p. m. post-mortem examination report is Ext. Ka. 17. In cross-examination he hasstated that emptiness of the stomach and the loading of both the intestines could occur at least three hours after taking of the food. He has further stated that injury No. 1, 3 and 5 could be caused from a distance of about 4-ft. because these injuries had black ening. He also stated the assailants must have been standing a t a higher level from the victim. He stated that injury Nos. 7, 8, 9 and 11 could be a result of some blunt object like lathi. He also stated that injury No. 1 and 5 were not on an yvital part of the body. The prosecution in support of its case has examined PW-1 Virendra Kumar Shukla. PW-2 Brij Kishore, PW-3 Kaushal Kishore, PW-4 Rangi Shukla and PW-5, Rajman Pandey as ocular witnesses. Apart from these PW-6 Abhai Singh. Investigat ing Officer, PW-7, Jai Narain Singh, Head Moharir PW-8, Prabhu Ram constable, PW-9, Gajpat, PW-10, Dr. Brahm Gopal Mathur who conducted the autopsy and PW-11 Budhai Prasad, District Medical Officer, Gorakhpur were examined as for mal witnesses.
(3.) THE defence case is of total denial. It has also examined DW-1 Hari Shankar Lal Lekh pal to establish that Rajman Pan-dey (PW-5) has no field near the place of occurrence. He has stated that there is no field in the name of Fanendra and Virendra in the vicinity because their father is alive and entire property is in his name. He has filed Khasra of 1384 Fasli. Following arguments have been advanced by learned counsel for the appel lants. There is a complete absence of any immediate motive for murder. On the con trary there is motive for false implication of the appellants by the prosecution wit nesses. Secondly, witnesses are partisan, highly inimical and chance. Their evidence, therefore, is to be relied upon with a pinch of salt. There are serious contradiction in the testimony of wit nesses, which renders theirpresence at the spot not free from doubt. Evidence of the eye-witnesses is in conflict with the medi cal evidence. FIR in this case is also chal lenged by the defence as ante timed and ante dated, transcribed at the police sta tion and not at the spot, in consultation with the Investigating Officer. It has also been submitted by learned counsel for the appellants that the evidence was not sup ported by any independent witness. He also emphasized that from the facts on the record the place of the occurrence appears to have been shifted. Admittedly the fields around the place of the occurrence belong to the appellants so the shifting of place was introduced bearing in mind the above situation. Lastly it is submitted before us that the land in question was lying near village Kusumha. It was under attachment by an order of the SDM in Section 145 Cr. P. C. proceedings. In such a situation no question of sowing any crop or going for watching the same could arise. Thus the incident had not taken place in the man ner, place and time as alleged by the prosecution.;