KISHAN RAM Vs. STATE OF U P

JUDGEMENT

(1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 31-03-1986, 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 Section 302 read with Section 34 of Indian Penal Code, 1860 (herein af ter for brevity referred as I. P. C.) and each one of them was sentenced to im prisonment for life. Appellant Kishan Ram was further convicted and sen tenced to undergo one-year rigorous imprisonment under Section 452 of I. P. C. and three years rigorous impris onment under Section 394 of the said Code.

(2.) ACCORDING to the prosecution story, deceased Sher Ram was resident of village Kotuli. P. W. 1 Smt. Saruli Devi is his widow and P. W. 2 Nandi Devi is his daughter. Smt. Saruli Devi is handi capped 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 fam ily relations with the accused/appel lants. 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 rela tionship between Sher Ram and the accused/appellants turned sour. A day before the day the incident, cattle of the accused/appellants damaged the stand ing crop of Sher Ram (deceased) who hurled abuses at them. The next day i. e. on 30th September, 1985, in the morning (around 07:00 A. M.), when Sher Ram was getting ready to go to Jageshwar (a near by 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, ac cused/appellant Kishan Ram entered in his house and broke open the lock of box, kept inside. On this, P. W. 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 accom panied the other two accused/appel lants in taking Sher Ram towards back side of his house. All the three killed Sher Ram and hanged him at a dis tance from a tree. P. W. 1 Smt. Saruli Devi crawled and reeiched near the tree. As soon as she touched the feet of Sher Ram (deceased), he fell down on the ground. It is alleged that P. W. 2 Nandi Devi, also saw accused/appellants beat ing and taking away Sher Ram. On being asked by Saruli Devi, her daugh ter Nandi Devi soon after the incident went to inform her uncle, P. W. 4 Pani Ram. On getting infonmation, at Jageshwar, P. W. 4 Pani Ram, rushed to the place of occurrence and went to Patwari to lodge First Information Report (Ext. A-2 ). (In Uttaranchal hills certain Revenue Officers are given po lice powers ). Patwari P. W. 7 Madan Singh on the basis of said report, prepared Check Report (Ext. A-4) and went to the scene of occurrence. He got prepared Inquest Report (Ext. A-7) of the dead body and also prepared other connected papers- Memo of Recovery of dead body (Ext. A-5), Sketch of dead body (Ext. A-8), Sample Seal (Ext. A-10), Letter to the Chief Medical Officer, Almora (Ext. A-11) 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. A-12 ). He submitted charge sheet (Ext. A-13) 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 Section 207 of Code of Criminal Procedure, 1973 (herein after referred as Cr. P. C.), committed the case to the Court of Ses sions for trial. Learned Sessions Judge after hearing the prosecution and coun sel for the defence, framed charge of offence punishable under Section 302 read with Section 34 of I. P. C. , against all the three accused persons. Learned Sessions Judge, further framed charge of offence punishable under Section 452 I. P. C. , and the one punishable un der Section 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, P. W. 1 Smt. Saruli Devi-widow of the deceased, P. W. 2 Nandi Devi- daughter of the deceased, P. W. 3 Dr. Jamal Masood, who medically ex amined the injuries of P. W. 1 Saruli Devi, P. W. 4 Pani Ram- informant, P. W. 5 Narayan Datt- Sabhapati, P. W. 6 Dr. M. L. Agarwal, who conducted the post mortem examination of the dead body of Sher Ram and P. W. 7 Madan Singh (Patwari- Investigating Officer ). An affidavit of P. W. 8 Constable Rajender Singh Gaur was also filed before the trial court regarding the fact that the case property, kept in Malkhana was kept so in sealed condi tion. The oral and documentary evi dence adduced by the prosecution was put to the accused/appellants under Section 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 Section 302 read with Section 34 of I. P. C. , and sen tenced to each of them to imprisonment for life. He further convicted the ac cused Kishan Ram under Section 452 I. P. C. and also under Section 394 of the Code and sentenced to rigorous impris onment of one year and three years respectively under said sections. Ag grieved by which this appeal has been preferred by the appellants.

(3.) IT is also pertinent to mention here the injuries on the person of P. W. 1 Smt. Saruli Devi. P. W. 3 Dr. Jamal Masood, medically examined P. W. 1 Smt. Saruli Devi and found following injuries on the person of said witness, on the next day of the incident i. e. on 01-10-1985. 1. Abrasion 2cm x 0. 1cm on the right side of neck, 6cms above the mid point of right clavicle (collar bone ). 2. Abrasion 2. 5cm x 0. 1cm on left side of neck, 7cms above the mid point of left clavicle. 3. Abrasion 2cm x 0. 1 cm on left side of neck, 5. 5 cm above the mid point of left clavicle. 4. Abrasion 3. 5cm x 0. 1 cm on dor sal aspect of right hand, 3. 5cm above the metacarpo-phalangeal joint of right middle finger. 5. Contusion 1cm x 0. 5cm on lat eral aspect of right leg, 18cms below the right knee joint.