KISHAN RAM Vs. STATE OF U. P.

JUDGEMENT

(1.) THIS appeal, preferred under S.374 (2) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 31-3-1986, passed in Sessions Trial No. 31 of 1985, by the then learned Sessions Judge, Almora, whereby appellants Kishan Ram, Deb Ram and Tara Ram, were convicted under S.302 read with S.34 of Indian Penal Code, 1860 (hereinafter for brevity referred as IPC) and each one of them was sentenced to imprisonment for life. Appellant Kishan Ram was further convicted and sentenced to undergo one - year rigorous imprisonment under S.452 of IPC and three years rigorous imprisonment under S.394 of the said Code.

(2.) ACCORDING to the prosecution story, deceased Sher Ram was resident of village Kotuli. PW 1 Smt. Saruli Devi is his widow and PW 2 Nandi Devi is his daughter. Smt. Saruli Devi is handicapped and lame who cannot walk but only crawl. Accused / appellants Kishan Ram, Deb Ram and Tara Ram are also residents of the same village i.e. Kotuli. Sher Ram (deceased) had strained family relations with the accused / appellants. It is alleged by the prosecution that about a year before the day of the incident, Deb Ram raped Smt. Saruli Devi, as a result of which she became pregnant. When Sher Ram came to know of the fact, he got the child aborted. However, thereafter, the relationship between Sher Ram and the accused / appellants turned sour. A day before the day of the incident, cattle of the accused / appellants damaged the standing crop of Sher Ram (deceased) who hurled abuses at them. The next day i.e. on 30th September, 1985, in the morning (around 07:A.M.), when Sher Ram was getting ready to go to Jageshwar (a nearby place from his village), all the three accused / appellants reached at his house and got hold of Sher Ram. While accused Deb Ram and Tara Ram dragged Sher Ram, accused / appellant Kishan Ram entered in his house and broke open the lock of box, kept inside. On this, PW 1 Saruli Devi, started shouting but she was beaten by Kishan Ram with fists and kicks. Appellant Kishan Ram then took away money from the box and accompanied the other two accused / appellants in taking Sher Ram towards backside of his house. All the three killed Sher Ram and hanged him at a distance from a tree. PW 1 Smt. Saruli Devi crawled and reached near the tree. As soon as she touched the feet of Sher Ram (deceased), he fell down on the ground. It is alleged that PW 2 Nandi Devi, also saw accused / appellants beating and taking away Sher Ram. On being asked by Saruli Devi, her daughter Nandi Devi soon after the incident went to inform her uncle, PW 4 Pani Ram. On getting information, at Jageshwar, PW 4 Pani Ram, rushed to the place of occurrence and went to Patwari to lodge First Information Report (Ext. A2). (In Uttaranchal hills certain Revenue Officers are given police powers). Patwari PW 7 Madan Singh on the basis of said report, prepared Check Report (Ext. A4) and went to the scene of occurrence. He got prepared Inquest Report (Ext. A7) of the dead body and also prepared other connected papers Memo of Recovery of dead body (Ext. A5), Sketch of dead body (Ext. A8), Sample Seal (Ext. A10), Letter to the Chief Medical Officer, Almora (Ext. A11) requesting for post mortem examination. Patwari also took into his possession one muffler (Ext. 2) belonging to the deceased and one rope (Ext. 1), found at the spot by which neck of the deceased was said to have been roped. He prepared Recovery Memo of the same. After recording statements of the witnesses, he also prepared the Site Plan (Ext. A12). He submitted charge sheet (Ext. A13) against all the three accused - appellants on 24-11-1985. The Magistrate, who received charge sheet, registered the same and after giving necessary copies to the accused persons under S.207 of Code of Criminal Procedure, 1973 (hereinafter referred as CrPC), committed the case to the Court of Sessions for trial. Learned Sessions Judge after hearing the prosecution and counsel for the defence, framed charge of offence punishable under S.302 read with S.34 of IPC against all the three accused persons. Learned Sessions Judge, further framed charge of offence punishable under S.452, I.P.C. and the one punishable under S.394 of the said Code against the accused / appellant Kishan Ram. All the accused persons denied all the charges and claimed to be tried. Then prosecution got examined before the trial Court, PW 1 Smt. Saruli Devi - widow of the deceased, PW 2 Nandi Devi - daughter of the deceased, PW 3 Dr. Jamal Masood, who medically examined the injuries of PW 1 Saruli Devi, PW 4 Pani Ram - informant, PW 5 Narayan Datt Sabhapati, PW 6 Dr. M. L. Agarwal, who conducted the post mortem examination of the dead body of Sher Ram and PW 7 Madan Singh (Patwari - Investigating Officer). An affidavit of PW 8 Constable Rajendar Singh Gaur was also filed before the trial Court regarding the fact that the case property, kept in Malkhana was kept so in sealed condition. The oral and documentary evidence adduced by the prosecution was put to the accused / appellants under S.313 of Cr.P.C., who alleged in their reply that the evidence adduced against them is false. Learned Sessions Judge, after hearing the arguments of both the sides, convicted all the three accused / appellants under S.302 read with S.34 of I.P.C. and sentenced each of them to imprisonment for life. He further convicted the accused Kishan Ram under S.452, I.P.C. and also under S.394 of the Code and sentenced to rigorous imprisonment of one year and three years respectively under said sections. Aggrieved by which this appeal has been preferred by the appellants.

(3.) BEFORE further discussion, it is pertinent to mention here that on post mortem examination of dead body of Sher Ram, PW 6 Dr. M. L. Agarwal, found following ante mortem injuries on 1-10-1985 (i.e. next day of the incident) :