Shiv Kumar Sharma, J. - (1.) Laxman Singh, Lakhan Singh and Machhar @ Mahesh, the three appellants before us were prosecuted in Sessions Case no. 63/1994 under Sections 302 and 364 of the IPC in the court of Additional Sessions Judge No. 2 Bharatpur for committing the murder of Bachhu Singh, All of them were convicted and sentenced as under: JUDGEMENT_40_LAWS(RAJ)10_1998_1.html In the event of non payment of fine totalling a sum of Rs. 1,000/- against each of the accused appellants for offences under Sections 364 and 302 IPC the accused appellants in default have been made liable for rigorous imprisonment for a further period of six months. The sentences awarded were to run concurrently. Aggrieved by their conviction and sentence the appellants have preferred this appeal.
(2.) The prosecution case as made out at the trial is as under- (a) On August 20, 1994, informant Mohan Singh instituted a written report at 11.15 p.m. at Police Station Sewar, stating therein that about two months ago his brother Bachhu Singh (deceased) had been espied in the house of Lakhan by Laxman. Thereupon, Laxman family member of Lakhan had beaten up Bachhu Singh on this account. However, the village folks had brought about a compromise subsequently. Ever since the incident Lakhan and Laxman continued to harbour a feeling of enmity against Bachhu Singh. Actuated by the enmity, Lakhan and Laxman on August 20, 1994 came to the village in their respective trucks and parked them near the shop belonging to Sarpanch Roop Singh. Thereafter at about 10 p.m. Laxman and Lakhan and another truck driver gave beating to Bachhu Singh iron rod and the tyre lever and pulled him from in front of Mohan Singh's house upto the main road and pushed him into truck No. MP 07 B 7099 announcing their intention to do away with him. Bachhu Singh had been taken towards Agra in the truck. Govind, Ghanshyam, Mohan Singh and other persons in the village were given out in the FIR as being the eye witnesses. It was stated by informant that he had been informed of the incident by Govind and on information received, the report was being filed. A case under Section 364 IPC was initially registered by the Police Station Sewar bearing FIR No. 267/94 against Laxman, Lakhan and one another, which ultimately the police stated to be the accused Machhar @ Mahesh. The Police Control Room received the information that a body was lying on the road towards village Uncha Nagla. The SHO along with informant went to the site where the dead body laid and the informant identified the body as that of his brother Bachhu Singh. Early next morning the prescribed drill was undertaken by the police in respect of dead body, site plan was prepared, panchayat nama of the dead body was prepared, blood stained stone and ordinary sand were taken by way of panchanama., and post mortem examination of the dead body was conducted by Dr. Suresh Bansal. The statements of the witnesses were recorded. The accused appellants Laxman, Lakhan and Machhar @ Mahesh were arrested and truck was seized. Recoveries of iron rod at the instance of Laxman and trye lever at the instance of Lakhan were made by the Investigating Officer in the course of investigation under Section 27 of the Evidence Act. At the conclusion of the investigation chailan under Sections 364 and 302 IPC was filed against accused appellants Laxman, Lakhan and Machhar @ Mahesh. The case was committed and the learned trial court framed charge under sections 364 and 302 IPC against the accused appellants. The prosecution examined as many as 12 witnesses and placed reliance on 22 exhibits. Thereafter the statements of the accused appellants under Section 313 Cr.RC. were recorded. The accused appellants examined Udai Singh DW 1 as defence witness and exhibited as many as five documents. The learned trial court after hearing arguments of the parties, convicted the accused appellants as indicated above.
(3.) Mr. Alok Sharma, learned counsel appearing for the accused appellants Laxman Singh and Lakhan Singh, canvassed that the prosecution has failed to prove either the enmity between the accused appellants and the deceased Bachhu Singh or the motive for the commission of the alleged act attributed to the accused appellants. The learned trial court erred grossly in relying and endorsing the mere opinion of Dr. Suresh Bansal, PW 7 in concluding that the death of the deceased Bachhu Singh had been brought about by the various injuries to his head and not by the deceased Bachhu Singh being over run by a heavy vehicle. The allegations against the accused appellants are confined to having forced the deceased on to an empty truck and driven towards Agra. There is no evidence available with the prosecution to indicate the specific injuries caused by the accused appellants on the person of Bachhu Singh. The case against the accused appellants for the offence under section 302 IPC following the death of Bachhu Singh is based on circumstantial evidence and there is no cogent evidence of any probative worth to exclude the real possibility of the deceased Bachhu Singh having died as a result of speedy vehicle on the road. The accused appellants Laxman. and Lakhan were alleged to be armed with an iron road and tyre lever respectively with which they inflicted injuires on the person of the deceased. Iron rod and tyre lever are blunt weapons and the injuires found on the person of the deceased Bachhu Singh were incised injuries not connected with the blunt weapons. The prosecution failed to connect the weapons of offence allegedly recovered at the instance of the accused appellants under section 27 of the Evidence Act with the injuries on the person of the deceased Bachhu Singh. The FIR iodged by informant Mohan Singh appears to have been anti-timed inasmuch as the Panchanama of the body of the deceased Bachhu Singh drawn on the morning of August 21, 1994 does not bear the details of the FIR. The witnesses produced by the prosecution are not sterling worth. The reliance was placed on L.N.K. Meharaj Singh v. State of Uttar Pradesh, (1994 Cr.L.R. (SC) page 455) .;