HARI SHYAM Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 27.07.1995, passed by learned III Addl. Sessions Judge, Nainital, in Sessions trial No. 217 of 1989 and 218 of 1989. The appellants Hari Shyam, Radhey Shyam, Ram Jagat and Ram Asrey were convicted under Section 304 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them is sentenced to imprisonment for life. Appellant Radhey Shyam is further convicted under Section 4/25 of the Arms Act, 1959, and sentenced to undergo rigorous imprisonment for a period of three months.

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

(3.) PROSECUTION story, in brief, is that Murat Prasad (deceased), resident of village Meharban Nagar, used to work in Sugar Mill at Majhola. A couple of days before the incident there had been theft of paddy of one Sardar Munna Singh of Village Sunpaher. In connection with said theft on 01.12.1988, police came to the house of accused/appellant Hari Shyam. The appellant Hari Shyam and his brothers (Radhey Shyam, Ram Jagat and Ram Asrey) suspected that Hari Shyam was named by Murat Prasad in that theft. This annoyed the appellants. On 02.12.1988, Murat Prasad after completing his night shift in the sugar mill, Majhola, returned to his house, at 08:00 A.M. After having breakfast he was lying on a cot, in the sun. At about 09:00 A.M., accused/appellants Hari Shyam, Radhey Shyamm, Ram Jagar and Ram Ashrey, all sons of Surat Prasad, armed with LATHIS, DANDA and BALLAM came to the house of the deceased and started giving blows on the person of Murat Prasad. The incident was witnessed by P.W.1 complainant Inderman; P.W.2 Ram Gopal and P.W.3 Sita Ram. They challenged the accused, on which the accused/appellants left Murat Prasad in an injured condition. When the witnesses went near the cot, they found that Murat Prasad had succumbed to the injuries received by him. A first information report (Ext. A -1) was lodged by P.W.1 Inderman on the very day i.e. 02.12.1988, at about 02:00 P.M. On the basis of said report the police prepared check report (Ext. A -15) wherein crime No. 439 of 1988 was registered against four accused (appellants) namely Hari Shyam, Radhey Shyam, Ram Jagat and Ram Asrey, relating to offence punishable under Section 304 of I.P.C. The police reached at the spot at 04:00 P.M. and took the dead body of the deceased in their possession. An inquest report (Ext. A -3) was prepared by the police. P.W.5 Sub Inspector Vishram Singh, who investigated the crime, prepared the sketch of the dead body (Ext. A -4); police form No. 13 (Ext. A -5); letter to the Chief Medical Officer (Ext. A -7) requesting for postmortem examination of the dead body; and sample seal (Ext. A -8). The dead body was sent in sealed condition for postmortem examination. Next day, on 03.12.1988, at 02:30 P.M., P.W.7 Dr. J.K. Sharma conducted the postmortem examination on the body of the deceased and prepared the autopsy report (Ext. A -18). He found as many as 11 ante mortem injuries and opined that shock and haemorrhage due to ante mortem injuries was the cause of the death of the deceased (Murat Prasad). On that very day i.e. 03.12.1988, accused/appellant Radhey Shyam was arrested and a knife with blade length of prohibited limit, was found possessed by the said accused, as such, a separate first information report was lodged on that day against accused Radhey Shyam in connection with crime No. 440 of 1988 of the Arms Act, 1959. That crime was investigated by P.W.6 Sub Inspector Netra Pal Singh. After completing investigations in both the cases, charge sheets were filed. Charge sheet (Ext. A -13) was filed by P.W.5 Sub Inspector Vishram Singh against the accused/appellant Hari Shyam, Radhey Shyam, Ram Jagat and Ram Asrey for their trial in respect of offence punishable under Section 304 of I.P.C., while charge sheet (Ext. A -17) was filed by P.W.6 Sub Inspector Netra Pal Singh against accused/appellant Radhey Shyam for his trial in respect of offence punishable under Section 4/25 of the Arms Act.