DHANRAJ Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity herein after Cr. P.C.), is directed against the judgment and order dated 23.11.1987, passed in Sessions Trial No. 81 of 1983, by the then learned II Additional Sessions Judge, Dehradun, whereby accused/appellant Dhanraj has been convicted under Section 302 and 307 of the Indian Penal Code, 1860 (for brevity hereinafter I.P.C.), and sentenced to imprisonment for life under Section 302 of the I.P.C., and rigorous imprisonment of five years under Section 307 of the I.P.C. By the same judgment and order accused/appellant Bishan Lal @ Kishan Lal and accused /appellant Mohan have also been convicted under Section 201 of the I.P.C., and each one of them has been sentenced to rigorous imprisonment for five years.

(2.) We heard learned counsel for the parties and perused the entire record.

(3.) Prosecution story, in brief, is that late Sri Kul Prasad, father of P.W. 1 Prem Prakash, the informant, had two wives. Smt. Dilisara (deceased), the second wife of Kul Prasad, is mother of the informant. Kul Prasad had two sons from his second wife namely Prem Prakash (P.W. 1) and Luxman Prasad. The first wife of Kul Prasad had died about 16 years before the incident. Accused/appellant Dhanraj is one of the three sons of said first wife of Kul Prasad. The other two brothers of Dhanraj (appellant) are Bhoop Narain and Dhan Bahadur (P.W. 3). Sri Kul Prasad, father of the informant Prem Prakash and accused/ appellant Dhanraj, died in the year 1976. On his death the land owned by him was mutated in the name of Dilisara (deceased). Accused/ appellant Dhanraj used to suspect that Dilisara may transfer all the property in her name, in favour of informant and his real brother. Apart from this, three children of accused/appellant Dhanraj used to get fits due to epilepsy, and Dhanraj and his wife suspected that Dilisara (deceased), step-mother of accused/appellant Dhanraj, practises witchcraft which causes the illness in their children. On 21-04-1983 i.e., day of 'RAMNAVMI', there was 'POOJA (worshiping) and 'HAWAN' (sacrificial ladle) in the family of the informant, which completed at about 1:00 P.M. At about 4:00 P.M., one of the daughters of accused/ appellant Dhanraj, got fits. At about 7.30 P.M., on the same day i.e. 21-04-1983, when informant Prem Prakash (P.W.1)was sitting with his brother Luxman Prasad, accused/appellant Dhanraj, armed with his licensed SBBL gun, came in his house and told that due to witchcraft practised by the informant's family, his daughter has got illness end he fired at the informant Prem Prakash. Only some pellets of the said shot could hit on temple near the right ear of the informant. Prem Prakash (P.W.1), informant along with his brother Luxman Prasad, rushed to a room in his house and locked it from inside to save their lives. Then, accused/appellant Dhanraj went to another room where Dilisara (mother of the informant) was in company of her daughter-in-law Khemawati (P.W.5). He fired another shot from his gun, this time at Dilisara, which hit her and she died on the spot. Meanwhile, due to the sound of first shot, witnesses Dhan Bahadur (P.W.3), the real brother of the accused/appellant Dhanraj, and one Keshav Prasad also rushed at the spot, but nobody could dare to apprehend Dhanraj as he was armed with a lethal weapon. After committing murder of Dilisara, Dhanraj fled from the scene. P.W.1 Prem Prakash got lodged the First Information Report (Ext. A-1) on the same day i.e. 21-04-1983, at about 9:40 P.M., with police station Dalanwala, which was at a distance of 8 kilometers from village Kidduwala, Raipur, Dehradun, where the incident took place. P.W.6 Head Constable Mangu Ram Tyagi prepared the check report (Ext. A-5) on the basis of the First Information Report, lodged by the informant. He further made necessary entry in the general diary, copy of extract of which is Ext. A-6. The crime was investigated by P.W.9 Sub Inspector Ram Kishore Sharma, who inspected the spot, collected sample soil and blood stained soil from the place of occurrence and prepared memo (Ext. A-10) with sample seal (Ext. A-11). He also collected the 'TIKLI' (small round pieces of metal filled in cartridges) found at the place of occurrence and prepared memo (Ext. A-12) with sample seal (Ext. A-13 and Ext. A-15). He further collected the empty cartridges and prepared memo (Ext. A-16) with sample seal (Ext. A-17). P.W. 2 Dr. M.B. Pandey, medically examined the injuries on the person of Prem Prakash and prepared the medical injury report (Ext. A-2). Next day i.e. on 22-04-1983, at about 7:00 A. M., the Investigating Officer went again to the spot and took the dead body of Dilisara in his possession and got prepared inquest report (Ext. A-18). He further got prepared the sketch of the dead body (Ext. A-19), police form No. 33 (Ext. A-20), police form No. 13 (Ext. A-21) and letter (Ext. A-24) to the Chief Medical Officer, Doon Hospital, Dehradun requesting for post-mortem examination of the dead body. P.W.4 Dr. O.P. Mishra conducted the autopsy on the dead body of Dilisara on 22-04-1983, at about 2:30 P.M. and prepared the post-mortem examination report (Ext. A-4). He opined that the deceased had died due to shock with haemorrhage caused by gunshot injury. The Investigating Officer prepared the site plan (Ext. A-25). He also got sent the sample soil & blood-stained soil and blood-stained articles for examination to the Forensic Science Laboratory. During investigation, the gun used in the crime, was recovered and sent to the Ballistic Expert for examination. It is found during investigation that to conceal the evidence of commission of crime appellant Mohan, brother-in-law of appellant Dhanraj, got deposited the gun, used in the crime, with the arm dealer appellant Bishan Lal @ Kishan Lal, on a back date. After recording the statement of the witnesses, and on completion of the investigation, the Investigating Officer submitted the charge-sheet (Ext. A-37) against all the three accused/appellants namely, Dhanraj, Bishan Lal @ Kishan Lal and Mohan to the Magistrate (a separate charge-sheet (Ext. A-38) was filed against accused Saraswati, but she was acquitted by the trial court).