DAYAL SINGH UJAGAR SINGH Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 29. 06. 1990, passed by the then learned Sessions Judge, Nainital, in Sessions trial No. 160 of 1986, whereby all the four accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.), and one punishable under Section 323 read with Section 34 of I. P. C. Each one of the convicts is sentenced by the trial court to undergo imprisonment for life under Section 302 read with Section 34 of I. P. C. and rigorous imprisonment for a period of six months under Section 323 read with Section 34 of I. P. C.

(2.) HEARD learned counsel for the parties and perused the lower court record.

(3.) PROSECUTION story, in brief, is that in Village Salwati, within the limits of police station Sitarganj (now part of District Udham Singh Nagar) fields of complainant Gurmukh Singh (P. W. 2) and that of the accused / appellant Dayal Singh are adjoining. Their fields were separated by 4medh4 (boundary mound ). On 08. 12. 1985, Gurmukh Singh, P. W. 2 along with his father Pyara Singh (deceased) had gone to their fields. At about 12:00 noon, Balwant Kaur (P. W. 3), wife of the deceased, came to the field with meals for her husband (Pyara Singh) and son (Gurmukh Singh ). Forty five minutes thereafter, accused / appellants Dayal Singh and his two sons Budh Singh and Resham Singh along with accused / appellant Pahalwan Singh, armed with lathies, reached to the field and started hurling abuses at Pyara Singh and Gurmukh Singh, raising objection as to why the boundary mound was disturbed. In reply to it, Pyara Singh told the accused / appellants that the boundary mound is joint of the parties. This infuriated the accused / appellants, who surrounded Pyara Singh and gave lathi blows to him. Pyara Singh fell down in the field and even thereafter, the accused / appellants gave lathi blows till he succumbed to the injuries, at the spot. Gurmukh Singh (P. W. 2) and Balwant Kaur (P. W. 4) came forward in an attempt to rescue Pyara Singh. However, they were also inflicted lathi blows by the accused / appellants. Satnam Singh, who was ploughing a nearby field and P. W. 5 Uttam Singh, who was passing through the village on way to his home, witnessed the incident. They challenged the accused, on which the accused / appellants ran away from the place of incident. While fleeing, turban (Ext.-1) of accused / appellant Budh Singh fell on the spot. Gurmukh Singh, P. W. 2, leaving dead body of his father Pyara Singh at the spot went to the police station along with some other villagers and got the first information report (Ext. A -3) scribed by Kashmir Singh and lodged the same with Police Station Sitarganj, on the very day i. e. 08. 12. 1985, at about 02:15 P. M. On the basis of said report Crime No. 354 of 1985 was registered against accused / appellants relating to offence punishable under Section 302 of I. P. C. Head Constable Inder Singh prepared the check report (Ext. A -4a) of the first information report and made necessary entry in the general diary at Sl. No. 25 (copy of extract of which is Ext. A -5, on the record) in the presence of Sub Inspector Kartar Singh (P. W. 6), who investigated the crime thereafter. The injuries of Gurmukh Singh, P. W. 2 and Balwant Kaur, P. W. 4, were examined on the very day i. e. 08. 12. 1985, at about 04:00 P. M. , at Primary Health Center, Sitarganj by Dr. P. C. Pandey (P. W. 1) where they were taken by Constable Rajendra Singh and Constable Virendra Singh. The Investigating Officer, meanwhile, proceeded to the spot and in the presence of the witnesses, including Balwant Singh (P. W. 8), prepared the inquest report (Ext. A -6) of the dead body of Pyara Singh, after taking the same in his possession. While preparing the inquest report on the very day i. e. 08. 12. 1985, it was clearly mentioned that there were three noticeable external injuries on the dead body of Pyara Singh. The Investigating Officer further prepared sketch of the dead body (Ext. A -7), police form No. 13 (Ext. A -8), letter (Ext. A -8) to the Chief Superintendent of Civil Hospital, Haldwani, requesting for postmortem examination on the dead body of deceased pyara Singh. Constable Chandra Pal Singh (P. W. 7) along with constable Asif Pervez took the dead body in a sealed condition for postmortem examination. Meanwhile, site plan (Ext. A -10) was prepared by Investigating Officer on 08. 12. 1985, itself. The postmortem examination was conducted on 09. 12. 1985, at about 11:00 A. M. , by Dr. C. N. Tiwari, P. W. 3, in Civil Hospital, Haldwani. The seals on the dead body remained intact throughout. Dr. C. N. Tiwari (P. W. 3) on postmortem examination did not record any ante mortem injury. He opined that he could not ascertain cause of death and directed to preserve the viscera. On the other hand, on 08. 12. 1985, at 05:45 P. M. , accused / appellant Dayal Singh lodged a cross first information report with police station Sitarganj, recorded by Head Constable, Inder Singh (C. W. 1), who prepared the check report (Ext. C -1) and made entry in the general diary at Sl. No. 36. Said cross case was registered as Crime No. 354-A of 1985 under Section 307 of I. P. C. against Gurmukh Singh (son of deceased Pyara Singh ). However, after completion of investigation, final report was submitted in the cross case lodged by accused / appellant Dayal Singh and a charge sheet (Ext. A -11) was filed by the police against accused / appellants, namely Dayal Singh, Budh Singh, Resham Singh and Pahalwan Singh, for their trial in respect of offence punishable under Section 302 of I. P. C.