Kanwaljit Singh Ahluwalia, J. - (1.) PREM Singh husband of Maina (P.W.1), as per prosecution was murdered on the night of 24.5.2003 at about 10:00 PM. The case of the prosecution is that Laxman Singh and his brother Doonger Singh had committed the murder of Prem Singh by throttling.
(2.) THE court of Additional Sessions Judge, Kekri, District Ajmer vide impugned judgment dated 26.3.2004 held the appellant Laxman Singh guilty of offence under Section 302 IPC and the appellant Doonger Singh guilty of offence under Section 302/34 IPC. Section 34 IPC has been applied, because it is the case of the prosecution that Laxman Singh had throttled the neck and at that time, Doonger Singh was standing there armed with a stick. Having convicted the appellants for the aforesaid offences, the trial court vide a separate order of even date, sentenced them as under: - - "U/s 302 or 302/34 IPC - to undergo life imprisonment and to pay a fine of Rs. 500/ - each, in default of payment of fine, to further undergo six months R.I. Aggrieved against their conviction and sentence, the appellants have instituted the instant appeal. The appellants are stated to be in custody from the last twelve years, one month and few days. Udai Singh (P.W.13) presented a written report (Exhibit -P/17) before Ramesh Kumar (P.W.14), who was then posted as SHO, Police Station Bhinay. Ramesh Kumar (P.W.14) Investigating Officer in the court deposed that on 25.5.2003, he received an information that a dead body is lying in village Lamgara. He reached at the spot. Udai Singh (P.W.13) presented a written report. The inquest proceedings were carried, site plan of the spot was prepared and blood stained earth and controlled soil were lifted. Near the dead body, one bottle of Indian made foreign liquor was recovered. The said bottle was taken into possession vide memo Exhibit -P/3. Thereafter, the Medical Board conducted post mortem of the dead body. We may notice here that after the post mortem was conducted, the entire prosecution case was changed to bring it in conformity with the medical evidence and new story was coined and Maina (P.W.1) wife of the deceased Prem Singh was introduced as solitary eyewitness. Before adverting to other evidence, we shall reproduce the first written report (Exhibit -P/17) submitted by Udai Singh (P.W.13) brother of the deceased Prem Singh before Ramesh Kumar (P.W.14) SHO, P.S. Bhinay. The report (Exhibit -P/17) when translated into English reads as under: - - "To SHO SahebPolice Station Bhinay. Sub: - - For taking legal action. Sir, In the above noted subject, it is submitted that I am resident of village Lamgara. Yesterday on the night of 24.5.2003 between 9:00 - 10:00 PM, my younger brother Prem Singh from his house had gone to the house of his in -laws at Lamgara. His wife was not sent alongwith him by his in -laws, due to this reason perhaps my brother has consumed some poisonous drug and has died on the way of Devaliya village. Today in the morning when people had gone to ease themselves, they learnt that Prem Singh is lying dead on the way. I am presenting the report. Legal action be taken." The Medical Board consisting of Dr. Pratap Singh (P.W.9) and Dr. S.P. Sharma (P.W.10) on 25.5.2003 conducted autopsy on the dead body of Prem Singh. They opined that the duration between death and post mortem was 12 to 14 hours. It was a body of stout healthy male person, rigor mortis was present through out the body. Post Mortem staining was present on back and dependent parts of the body. It was noted in the Post Mortem Report (Exhibit -P/13) as under: - - "(i) Abraded bruise, 1.5 cm x 1 cm on right side anterolateral aspect of neck below mid point of body of mandible. (ii) Bruise three in number on left side of neck anterolaterally (A) Bruise measuring 0.5 cm x 0.5 cm placed just below mid point of body of mandible of left side. (B) Bruise 0.5 cm x 0.4 cm just below above mentioned injury/A. (C) Bruise 0.3 cm x 0.3 cm just below above mentioned injury/B. On dissection of neck - The muscles of neck mainly sternodeidomastoid muscles on both side containing haematoma under lying subcutaneous tissue are ecchymosised. There is multiple fracture of thyroid cartilage and tracheal rings (upper three trachea rings). Blood clot present at fractured site and in the lumen of trachea. Hyoid bone on both side fractured (Inward fracture). Toncoid cartilage fractured. Carotid sheath in upper part on both side contains clotted blood. On dissection of neck posteriorly there is fracture of body and transverse process of clavicle 1 and cervical 2 vertebrae. Spinal cord is lacerated at fractured site. Blood clots present at laceration site of spinal cord and fractured side of vertebrae."
(3.) AS per opinion of the Medical Board, the cause of death was asphyxia as a result of throttling. It was ante mortem in nature and sufficient to cause death in the ordinary course of nature.;