AFSAR KHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal has been filed by Afsar Khan, Ajhar Khan and Nasiruddin, residents of village Dyori police station Sitarganj, district Nainital. All the three appellants were found guilty of offences U/s 302 read with Section 34 IPC. Each of them were sentenced to undergo imprisonment for life and penalty of Rs. 5,000/ -, in default they were to undergo six months simple imprisonment. All the three appellants were also found guilty of offence U/s 201 IPC. Again each of them was sentenced to rigorous imprisonment for one year and liable to fine of Rs. 1,000/ - each, in default they had to undergo simple imprisonment for one month. Nasiruddin has since died; appeal filed by him stands abated.

(2.) THE prosecution case was as follows: - On 01.09.1984, Jaswant Singh son of Darshan Singh (P.W. l) left his house at 2:00 p.m. to visit the appellants. P.W. l was so told by his son Jaswant Singh. When Jaswant Singh did not return for a long time, P.W. l went in search to the house of the appellants where P. W. l was informed by the appellants that Jaswant Singh had come to their residence but had since left. P.W. l searched for his son for two days and finally on 03.09.1984 at 4:50 p.m. he went to the above police station where he filed his complaint (Ext. Ka. l) about his missing son. On 04.09.1984 at 10:15 a.m., the body of Jaswant Singh was found in the field of Baburam. Sub Inspector Vishram Singh (PW71 prepared the inquest report (Ext. Ka.2) on 04.09.1984 at 4:15 p.m. On 04.09.1984, Chappels were recovered under Recovery Memo (Ext. Ka.3). Thereafter S.I. Vishram Singh (P.W.7) prepared the site plan of the place of incident vide Ext. Ka. 5 dated 04.09.1984. Thereafter the body was sent for post mortem on 04.09.1984 at 11:45 a.m. The post mortem was done by Dr. Nariyal (P.W.3) on 05.09.1984 at 12 noon at Haldwani. According to the post mortem report (Ext. Kao4), the cause of death could not be ascertained and therefore the viscera was ordered to be preserved. However, as per the viscera report dated 01.01.1986 (Ext. Ka. 14) poison was detected. The accused were charged on 22.01.1987 of committing offence U/s 302 read with Section 34 IPC and Section 201 IPC by IV Addl. Sessions Judge, Nainital.

(3.) THE prosecution examined P.W.l Darshan Singh, father of the deceased Jaswant Singh, (P.W.2) Darshan Singh S/o Hakim Singh Dr. Nariyal (P.W.3) who carried out the post mortem, P.W. 4 Pritam Singh from adjoining village Deokali, P.W.5 Krishna Singh from the same village Dyoli, P.W.6 Kashmir Singh from different village Din Nagar, P.W.7 Vishram Singh the Sub Inspector of police station Sitarganj at the relevant date and P.W.8 Rajendra Prasad, the head constable of Sitarganj police station on 03.09.1984 who registered the complaint of P.W.l on that day, in support of the case of the prosecution. Of these witnesses, informant P.W.l, Darshan Singh, supported the prosecution case by stating that on 01.09.1984, his son Jaswant had left the house stating that he was going to the residence of the accused and that he would return shortly; that when the deceased did not return P.W.l went to the house of the accused and inquired about his son when he was informed by Afsar Khan that Jaswant Singh had come to see them and had left; that thereafter P.W.l had searched for his son for two days and finally on 03.09.1984 at