MALKHJAN Vs. STATE OF U P

JUDGEMENT

(1.) PRESENT criminal appeal is directed against the judgment and order dated 27.1.1987 passed by Sri Pratap Singh, VIth Additional Session Judge, Etah in Session Trial No. 104 of 1986 State Versus Malikhan and another, convicting and sentencing the appellants under section 302 I.P.C. read with section 34 I.P.C. to life imprisonment. The prosecution story as has been unfolded in the first information report is to the effect that on 3.11.1985 at about 6.30 a.m. at the field of deceased, Rameshwar situated in the area of village Nagla Gada, hamlet of Borra Kalan, in furtherance of common intention, the accused persons committed murder by intentionally and knowingly causing the death of deceased, Rameshwar. Informant Virendra Singh, Rameshwar deceased and Ehbaran Singh after taking bullocks and plough had gone to plough the field and the moment they reached the field then at the said point of time appellants Malikhan son of Tota Ram Yadav and Bhura son of Tota Ram Yadav were sitting on maind of the field armed with Gandasa in their hands and the moment they met the deceased they abused and then exhorted and attacked Rameshwar with Gandasa and at the said point of time when informant Virendra Singh and Ehbaran Singh tried to resist the same, then country made pistol was taken out by Malkhan and was aimed, at them and due to fear informant and Ehbaran Singh retreated back and Rameshwar on account of gandasa injuries fell down and both of them had fled away from the spot. It was precisely mentioned that the motive for committing such offence has been dispute inter -se children about 10 days back. First information report of the said incident was lodged by Virendra Singh son of Mihi Lal and same was registered at 9.10 A.M. by Head Moharrir Surendra Singh. After the said first information report has been lodged at the police station Awagrah, Etah at a distance of 11 kms from the place of occurrence, Babu Ram Mishra Sub Inspector began with the investigation of the case. On the said date he collected copy of first information report recorded statement of informant, and Head Moharrir Surendra Singh, and proceeded to the spot, where on reaching after appointing panches, got prepared inquest report of death of Rameshwar and other relevant papers were also got prepared such as Chalan lash, Photo lash, letter to R.I. and letter to Chief Medical Officer for conducting the autopsy on the dead body of the deceased. Dead body in question was sealed and was handed over to the constable Marotti Lal and Sukhvir Singh to be taken for autopsy at mortuary of Etah and he also collected blood stained earth and simple earth from the spot and kept the same in two separate containers. He has proceeded to record statement of inquest witnesses and statement of witnesses who were instrumental in getting memos prepared. On the same day he also recorded statement of Ehbaran Singh and Pratap Singh and also prepared site plan of the place of occurrence on the pointing out of informant Virendra Singh. Autopsy of the deceased was conducted by Dr. A.K. Agarwal, Pathologist, District Hospital, Etah on 4.11.1985. Thereafter after concluding the investigation eventually Sri A.K. Rawat submitted charge sheet.

(2.) AFTER charge -sheet has been submitted, as offence in question was triable exclusively by the Court of Session, committal proceedings took place and same was send to Session Judge and Session Judge on the basis of material available on record, proceeded to frame charge under section 302/34 I.P.C. against the accused/appellants and accused appellant in their turn denied their participation in the crime in question and claimed to be tried.

(3.) SRI Dharmendra Singhal, Advocate appearing with Sri Anoop Ghose, Advocate, learned Counsel for the appellants submitted (i) in the present case both the prosecution witnesses are highly interested and partisan witnesses being relatives of the deceased, as claimed by themselves and their presence on the spot is highly doubtful and same is fully fortified from their abnormal conduct and the major inconsistencies/contradictions in their statement made before the Court and no blood having been found either on their body or clothes, (ii) Medical evidence in the present case is not at all in consonance with the ocular evidence and time of occurrence as has been suggested would shift as in small intestine, undigested food has been found and same clearly reflects that incident in question has not taken place at the point of time as it has been alleged and in the manner it has been alleged, (iii) Motive attributed to the accused/appellants is insignificant and too trivial to impel appellants to commit murder, as such accordingly all on this score appeal deserves to be allowed.