TRILOCHAN ALIAS TULSIA AND ORS. Vs. STATE

JUDGEMENT

(1.) This appeal, preferred under Sec. 374(2) of Code of Criminal Procedure, 1973 (hereinafter for brevity referred as Code of Criminal Procedure), is directed against the judgment and order dated 19 -10 -1982, passed in Sessions Trial No. 6 of 1982, whereby the then learned Sessions Judge, Almora has convicted Appellants Trilochan alias Tulsia and Harri Dutt under Sec. 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and Appellant Anil Kumar under Sec. 302 read with Sec. 34 I.P.C. and sentenced each of them to imprisonment for life.

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

(3.) Prosecution story, in brief, is that Khimanand (deceased) and his brother P.W.1 Chintamani had a shop of grocery and tea stall at Shashikhal Bazar within the limits of village Khumar, Tehsil Ranikhet, District Almora. Accused/Appellant Trilochan alias Tulsia had also a shop in said market in which he used to sell sweetmeat. According to the prosecution, during the period of Diwali in the year 1981, P.W. 1 Chitamani and his brother Khimanand (deceased) started selling sweets in their shop after purchasing the same from Ramnagar. This affected the business of accused Trilochan and on 25 -10 -1981, he objected to Chintamani and Khimanand and asked them not to cause economic loss to him. But they did not pay any heed to it. Accused/Appellant Hari Dutt is brother of accused/Appellant Trilochan. He (Hari Dutt) used to work in Deepak Restaurant in Delhi. The third accused/Appellant Anil Kumar had also some business in Delhi. When P.W. 1 Chintamani and his brother did not pay any heed to the objection of Trilochan, he closed his shop on 28 -10 -1981 and came back on 30 -10 -1981 along with his brother Haridutt and a third person (Anil Kumar). All the three travelled on said date from Ramnagar to Shashikhal in bus registration No. UPD 592 of the 'Kumaon Adarsha Motor Transport'. They reached Shashikhal on 30 -10 -1981 at about 3:30 P.M. All of them alighted from the bus and went towards shop of Khimanand and Chintamani which was by the side of the road. Out of the three Appellants, Trilochan and Harri Dutt were armed with knives. When they reached at the stall of Khimanand, P.W. 4 Kunti Devi and P.W. 5 Jogdev, were having tea in the said shop. As soon as the three accused reached in the shop, accused Trilochan and the third person (Anil Kumar) got hold of Khimanand and dragged him out. Accused/Appellants Trilochan and Hari Dutt thereafter started inflicting knife blows on the person of Khimanand. On this, P.W. 4 Kunti Devi asked Trilochan not to do so and she intervened. However, she received knife cut in her hand. Thereafter accused persons further dragged Khimanand from the shop to the road. Meanwhile, due to the shouts, P.W. 1 Chintamani (brother of Khimanand) who was taking rest in the inner room of the house, came out and also witnessed the incident. P.W. 1 Chintamani made attempts to save Khimanand but accused Trilochan and Hari Dutt wielded knives and made Chintamani run away from there. It is alleged by the prosecution that all the accused persons thereafter threw the dead body of Khimanand by the side of road and again forcibly boarded in the same bus registration No. UPD 592. They travelled through said bus about half -a -kilometer ahead and got down from it. P.W. 1 Chintamani thereafter lodged First Information Report (Ext. A -1) with nearest reporting police outpost, Maulikhal, where P.W.3, Constable Balwant Singh prepared check report (Ext. A -4) of the First Information Report. He further made entry in the general diary (a copy of which is extract Ext. A -5). P.W.3 Constable Balwant Singh along with Constable Maheshanand came to the spot and kept the dead body of Khimanand on the roof of shop of his brother Chintamani. They guarded it till the arrival of P.W.8 Sub -Inspector Moti Ram Sharma on 30 -10 -1981. On arrival of said Sub -Inspector, inquest report (Ext. A -9) of dead body was prepared in the presence of witnesses. Blood stained clothes (of the deceased) Ext. 1, 2 and 3, were taken into possession by the police. Cash amounting to Rs. 305/ - was also found in the pocket of the deceased, which was handed over to P.W. 1 Chintamani (informant). Recovered clothes were sealed and memo (Ext. A -2) was prepared. The police also prepared sketch of the dead body (Ext. A -10), police form No. 13 (Ext. A -11), chalan of dead body (Ext. A -12), sample seal (Ext. A -13) and letter to Chief Medical Officer for post mortem examination (Ext.A -14). The dead body was sent for post mortem examination to Ranikhet. P.W. 2 Dr. V.S. Pal conducted autopsy on 02 -11 -1981 in Ranikhet. P.W. 8 Moti Ram Sharma, the Investigating Officer also took the simple soil and blood stained soil from the place of incident and prepared memo (Ext. A -15) and site plan (Ext. A -16). Later on, the investigation was transferred to P.W. 12 Raj Pal Singh, Station House Officer of Police Station Ranikhet. He arrested accused Anil Kumar. Meanwhile, accused Trilochan alias Tulsia surrendered before the court. As against accused Hari Dutt, the Investigating Officer got issued orders (Ext. A -28) of attachment of his movable property to compel him to surrender. After the arrest of Anil Kumar since he was not a known person to the witnesses, he was kept 'BAPARDA' (face covered) and was put to the identification. The test identification parade was conducted on 02 -02 -1982 before P.W. 7 Shri U.D. Chaube, the then Sub -Divisional Magistrate, Bara Mandal, Almora. After conclusion of the investigation, charge sheet (Ext. A -31) was submitted against the accused Trilochan alias Tulsia and Hari Dutt along with separate charge sheet (Ext. A -32), filed against accused Anil Kumar for their trial in connection with the offence punishable under Sec. 302 and 201 I.P.C.