BAISAKHU Vs. STATE OF U P

JUDGEMENT

(1.) These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure ), are directed against the judgment and order dated 29.02.2000, passed by Sessions Judge, Uttarkashi, in Sessions Trial No. 03 of 1998, whereby Appellants Jaibir Singh, Baisakhu and Darshan Lal have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life.

(2.) Heard learned Counsel for the parties and perused the lower court record.

(3.) Prosecution story, in brief, is that on 09.10.1997, at about 11:00 P.M., P.W. 2 Aila Devi (informant) was in her house in village Bareth, Tehsil Dunda, District Uttarkashi, with her children and Bharpur Das (deceased). Her doors were knocked by accused/Appellant Jaibir Singh, on which she declined to open the door, but Bharpur Das opened the door, and let Jaibir Singh enter in the house. Jaibir Singh on seeing Bharpur Das in the house of the informant took hold of him and crushed him between the door and wall. Meanwhile, other two accused/Appellants Darshan Lal and Baisakhu, who were accompanying Jaibir Singh, entered in the house and started giving lathi blows on the person of Bharpur Das. Accused/Appellant Jaibir Singh also joined them in the assault. On this, P.W. 2. Aila Devi got frightened and ran away to hide herself. The children of the informant Vinod (P.W. 3) and her sister also got frightened and ran towards the cowshed to take shelter. On the next day morning Aila Devi went to the nearest police outpost Brahamkhal, but the regular police told her that since the incident relates to revenue police area, she should approach the revenue authorities of the area (In Uttarakhand hills vide U.P. Government Notification No. 494/VIII - 418 -16 dated 7th March 1916, certain revenue officials are given police powers). Thereafter, she went to Patwari of Junga, where she got lodged first information report (Ext. A -2). On the basis of said report, check report (Ext. A -4) was prepared on 10.10.1997, at 03:00 P.M., and Crime No. 05 of 1997 was registered against accused/Appellants Jaibir Singh, Darshan Lal, Baisakhu and one Nihal Singh, relating to offence punishable under Section 302 of I.P.C. Investigation was conducted by P.W. 6 Anand Pal, Patwari of the area. He went to the spot took dead body of Bharpur Das in his possession, and prepared inquest report (Ext. A -3) at 04:00 P.M., on the very day (10.10.1997). The Investigating Officer also prepared sketch of the dead body (Ext. A -7), police form No. 13 (Ext. A -8), and letter to the Chief Medical Officer (Ext. A -9). Thereafter, the dead body, in sealed condition, was sent by the Investigating Officer through peon Om Prakash for postmortem examination. P.W. 1 Dr. R.P. Badoni, Medical Officer of District Hospital, Uttarkashi, conducted the postmortem examination on 11.10.1997, and prepared autopsy report (Ext. A -1). He recorded as many as eight injuries found on the scalp, five injuries on face, and four other injuries as ante mortem injuries on the body of the deceased. He also observed on internal examination that there were fractures in the skull bone, in parietal, temporal and occipital regions. Brain matter was coming out, and scalp was lacerated. In the opinion of the Medical Officer, Bharpur Das died of coma, due to head injury. Meanwhile, Investigating Officer interrogated the informant and her son Vinod. He also prepared site plan (Ext. A -6) and interrogated other witnesses. The Investigating Officer moved an application before the Magistrate for getting recorded the statements of the three witnesses, namely Aila Devi, Vinod and Bhajan Lal under Section 164 of Code of Criminal Procedure, on which P.W. 7 R.C. Tiwari, the then Sub Divisional Magistrate, Bhatwari, District Uttarkashi, recorded the statements of the three witnesses under Section 164 of Code of Criminal Procedure On completion of investigation, the Investigating Officer submitted charge sheet (Ext. A -14) against four accused, namely Jaibir Singh, Baisakhu, Darshan Lal and Nihal Singh, for their trial in respect of offences punishable under Section 302 and 452 read with Section 34 of I.P.C.