SINGH, J. - (1.) THIS jail appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 17. 5. 2004 passed by learned Additional District and Sessions Judge (Fast Track) Hindaun City, district Karauli, in Sessions Case No. 09/03 (69/02) whereby the accused appellant has been convicted and sentenced as under:- u/s. 302 IPC, to suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer three months additional rigorous imprisonment. u/s. 324 IPC, to suffer two years simple imprisonment. u/s. 323 IPC, to suffer six months simple imprisonment. u/s. 448 IPC, to suffer six months simple imprisonment. The substantive sentences were ordered to run concurrently.
(2.) BRIEFLY stated the prosecution case is that on June 27, 2002, at 2. 15 PM a written report (Ex. P. 11) was handed over by Narsi (PW. 12) R/o Jindaun-ka-Pura (Kamri) to the SHO, Police Station Nadauti, Camp P. H. C. wherein it was stated that on 26. 6. 2002 at about 11. 45 PM, he was sleeping in his `bakhar' while his father Malliram and younger brother Mukesh were sleeping in front of the house and elder brother Khushiram was sleeping in the `bakhar'. On hearing cries of the ladies, he awoke and saw his uncle's son Brijendra came with a sharp edged weapon and inflicted blow to his father Malliram, who died at the spot. Then he inflicted injury to Mukesh who was wounded and then he inflicted blow to Khushiram, sleeping by his side, who also died at the spot. Brijendra also inflicted a blow to Smt. Vidhya W/o Hakeem, who was also injured. On being followed by the informant, Brijendra along with one boy of village Patirampura and one more person to whom he could recognise by face, ran away from the `bakhar' towards road. Thereafter the informant along with other villagers brought Mukesh and Smt. Vidhya to the hospital at Nadauti. On receipt of the above report by the SHO, Nadauti, a case under Section 302 IPC was registered at the police station. The investigation commenced. The police got conducted autopsy of dead bodies of Malliram and Khushiram. The necessary memos were drawn, statements of the witnesses were recorded and on completion of investigation charge sheet was filed. In due course, the case came up for trial before the learned Additional Sessions Judge, Hindaun City, District Karauli. Charges under Sections 302, 324, 323 and 448 IPC were framed. The accused denied charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence and stated that he was falsely implicated so as to grab his hand. However, no witness was examined in defence. We have heard the arguments advanced before us and have scrutinised the evidence adduced at the trial. The main contention of the learned counsel for the appellant is that the participation of the appellant in the occurrence has not been proved beyond doubt and the appellant was convicted on the basis of conjectures and surmises. Learned Public Prosecutor has controverted the contention and has supported the judgment of the learned trial Court. Death of Malli Ram and Khushi Ram was undisputably homicidal in nature. As per post mortem report, the following ante mortem injuries were found on the dead body of Malli Ram:- Incised wound 8 cm x 4 cm bone deep (cervical vertebrae) Lt side of Neck parallel to Lt mandible extending from chin to Anterior border of sternodedo mastoid muscle. Weapon - Sharp # C2, C3 vertebrae Incised wound 3 cm x 1 cm x bone deep (mandible Lt. ). Weapon - sharp Injury No. (1) caused damage of skin, deep fascia. Platys ma ms, sternohyoid-ms, sterno/thyroid, common carotid artery Internal jugalar vein & vagus nerve. In the opinion of Medical Board, all injuries were ante mortem in nature, (ii) Duration of injury was 8-12 hrs. since post mortem examination, and (iii) cause of death was shock due to haemorrhage caused by damaged of greater vessels of the neck. As per post mortem report, the following ante mortem injuries were found on deceased Khushiram:- Incised wound 15 x 5 cm x post. wall of trachea Anterior 1/2 of neck extending from Anterior Border of sternodedo mastoid muscle Lt to posterior border of Rt sterno dedo mastoid muscle. Content Damaged skin, Playsma, sternohyoid sterno thyroid muscles of Both side & Thyroid cartilage are - damaged, trachea damaged & content of carotid shacle of Both side i. e. common caratid artery, I. J. V. & vagusnerve. Weapon : Sharp Injury No. 2 Incised wound over left mandible size 3 x 1 cm x bone deep. Weapon sharp. Injury No. 3 Incised wound 2 x 1 cm x skin deep over left mandible. Weapon : Sharp Injury No. 4 Incised wound 1 x 1/2 cm x Bone deep Lt side of neck over ramus of mandible. Weapon : Sharp Injury No. 5 Clean lacerated wound over upper part of Nose extending from between both eyebrows to upper 1/2 of Nose size 3 x 1 cm x Bone deep. Weapon : Blunt. Injury No. 6 Abrasion 5 x 1/2 cm over Anterior aspect of Rt shoulder. In the opinion of Medical Board, all injuries were ante mortem in nature, (ii) Duration of injuries was 8-12 hrs. since post mortem in nature and (iii) cause of death was shock due to haemorrhage caused by damaged greater vessels of neck & trachea. On examination of injured Mukesh and Smt. Vidhya Devi W/o Hakeem, the following injuries were found on his/her person:- Mukesh S/o Malli Ram: Incised wound 7 cm x 1 cm x BD left side of face transversely extending from left ear to lateral canthus of left eye. Incised wound 3 cm x 1 cm x BD dorsum aspect of left hand over Root of Index & Middle finger. Duration : within 6 hrs. Smt Vidhya Devi W/o Hakeem: Laceration 4 cm x 1/2 cm frontal region of scalp. Abrasion 6 cm x 1/2 cm back of chest Rt side. GC : Normal Duration :- within 6 hrs. On re-appraisal of the evidence, it is revealed that the occurrence took place at about 11. 45 in the night on June 26, 2002 while two deceased Malli Ram and his son Khushi Ram were sleeping at their house along with other family members situated at Jindau-ka-Pura near village Kamri in the jurisdiction of police station Nadauti. From the site inspection map Ex. P 5, it is revealed that deceased Malli Ram was sleeping in the Chauwk outside the sitting room and Mukesh S/o Shri Malli Ram who is an injured eye witness was sleeping just near to him at a distance of about 3 feet from him. Khushi Ram, the other deceased, son of Shri Malli Ram was sleeping on a cot marked 3 at a distance of about 36 feet from the cot of deceased Malli Ram. Next to Khushi Ram, Smt. Vidhya Devi W/o Hakeem Singh was sleeping at a distance of 36 feet from the cot of Khushi Ram and from there at a distance of 40 feet, Narsi (PW. 12) son of Malli Ram was sleeping. Sushila W/o Shri Mahendra (PW. 6) was sleeping on the cot marked 8 while Smt. Santa W/o Narsi (PW. 5) and Smt. Kesula were sleeping on a `patiya' at place marked 7 as shown in Ex. P. 5. As shown in the site map, two deceased Malli Ram and Khushi Ram were put to death when they were asleep on the cots and the blood was found spilt over the ground as well as near the cots. From the ocular testimony of the witnesses, it is also revealed that Khushi Ram and Mukesh were sleeping on nearby cots while Khushi Ram deceased was sleeping by the side of cot of Smt. Vidhya Devi (PW. 4) at a distance of 36 feet. It is further revealed that deceased Khushi Ram and Malli Ram died at the spot while Mukesh (PW. 3) sustained injuries and became unconscious at the spot and could regain his conscious only after he was taken to the hospital. Only injured witness Smt. Vidhya Devi (PW. 4) is the witness who sustained two injuries but she remained conscious as the first injury was found to be a lacerated wound on her head and the other injury was found to be abrasion on right side of her back. Therefore, it is this witness who had the occasion to see the occurrence in the manner she has unfolded in her deposition. According to her deposition, it was about 12. 00 in the night while she was sleeping at a distance of about 4-5 hands away from Khusiram, the accused Brijendra Singh inflicted `kulhari' blow on her head and thereafter to Khushiram on his neck and then she caught hold his legs and he inflicted second blow on her shoulder. She had recognised accused Brijender Singh as it was moon lit night and there was also light in the house. Accused appellant Brijendra Singh had only under-wear on his body and no other cloth. She cried as soon as she was hit and all other inmates of the house also got up. She found that deceased Malli Ram had sustained injuries and his neck was ct by axe and Mukesh (PW. 3) also sustained injuries. After causing injuries, Brijendra ran away from there. Malli Ram and Khushiram died at the spot. She, herself, was also examined for the injuries by the doctor. The testimony of this witness stands corroborated by the medical evidence as Dr. Hari Mohan Meena (PW. 19) who has corroborated the fact that she was found with one lacerated wound on her head and one abrasion on right side of her back when she was examined on 27. 6. 2002 at 2. 30 AM just about 3 hours of the incident at Primary Health Centre (PHC), Nadauti. Other eye witness Mukesh (PW. 3) is the son of deceased Malli Ram who was sleeping by his side, has deposed that suddenly a blow was hit on his cheek and he got up from the cot and then Brijendra inflicted 2-3 blows with axe on the neck of his father Malli Ram who died at the spot. According to him, the second below was inflicted on his cheek and he became unconscious. He has further deposed that in fact the first blow was inflicted on his hand and the second was inflicted on his cheek. He has further deposed that he regained conscious in the hospital at Nadauti and then he came to know that Brijendra had inflicted `kulhari' blow to Khushiram who had expired and Smt. Vidya Devi had sustained injuries. He has also corroborated the fact that at the time of incident, it was moon lit night and the electric light was on and accused appellant Brijendra had only underwear on his body and no other cloth. He has further deposed that at about 2-3 days back his `bhabhi' (sister-in-law) Santa had an altercation with the wife of appellant Brijendra and this crime was committed by Brijendra on account of that enmity. The injury of this witness has been corroborated by Dr. Hari Mohan Meena (PW. 19) who found two incised wounds, one at the left side of neck and the other on the left jaw of the face. Santa W/o Narsi (PW. 5) and Sushila W/o Mahendra (PW. 6), Narsi (PW. 4), Smt. Lachho W/o Khushiram (PW. 13) were sleeping at the place of occurrence. All of them deposed that they were awakened on hearing cries of Smt. Vidhya (PW. 4) and saw Brijendra running away from the place of occurrence and Khushiram and Malli Ram lying dead and had injuries on their necks and Mukesh (PW. 3) had also sustained injuries. The prosecution has examined Ramswaroop (PW. 11) who reached at the place of occurrence and saw Malli Ram and Khushiram lying dead but denied that he was told as to who had committed the crime and hence he has been declared hostile. The other witness Ram Kanna (PW. 14) has been declared hostile.
(3.) ON cross examination of the eye witnesses, some contradictions and improvements are found to have appeared in the testimony but in the facts and circumstances of the case, it is quite natural for these witnesses to re-act to the happening of the occurrence in their own manner and they are bound to be some minor contradictions and inconsistencies as the occurrence has taken place at the dead of night when all these witnesses were asleep. The testimony of Smt. Vidhya (PW. 4) is quite convincing because she is the witness who remained conscious even after the alleged assault on her by accused Brijendra. It has come on record that her cot was next to Khushiram though at some distance so Khushiram could not have been killed without her knowledge so it was essential for the assailant to inflict injury simultaneously to Smt. Vidhya Devi (PW. 4) and thus when she was hit she had the occasion to see the assailant. The testimony of Mukesh (PW. 3) is also important as he is also an injured witness. In fact, he was sleeping next to Malli Ram at a distance of only 3 feet on a separate cot and it was but natural for an assailant to put to death both of them together so that one of them may not get up and resist on hearing the noise. Thus, the manner in which Mukesh was hit by the accused, is quite natural and the testimony of Mukesh that he identified the accused with `kulhari' is convincing because he became unconscious only after the second blow. The testimony of other witnesses is also quite natural because they were awakened when Smt. Vidhya Devi (PW. 4) cried on being struck by the accused. Thus, all these witnesses had an occasion to see and recognise accused Brijendra at the spot. All these eye witnesses have also deposed that there was moon lit night and also electric light in the house and all of them recognised the accused at the spot. As the accused is the uncle's son of the informant Narsi (PW. 12) and thus it was but natural for these witnesses to recognise him even in the moon lit night. Moreover, it is clear that Smt. Vidhya Devi (PW. 4) had a close encounter as she caught hold his legs and therefore, she had enough opportunity to recognise him. ;