SHANKAR BAHADUR Vs. STATE

JUDGEMENT

(1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr. RC.), is directed against the judgment and order dated 19-07-1983, passed in Sessions Trial No. 10 of 1983, whereby the then learned Sessions Judge, Pauri Garhwal has convicted appellants Shankar Bahadur, Moti Singh, Kali Bahadur and Man Bahadur under Section 302 read with Section 149 of Indian Penal Code, 1860 (herein after referred as I. RC.) and each one of them has been sentenced to imprisonment for life. Appellant Shankar Bahadur has been further sentenced to pay a fine of Rs. 500/- in default of payment of which he is directed to undergo rigorous imprisonment for one year. 2. Shri L. K. Tewari, who is counsel for appellant No. 1 Shankar Bahadur, was appointed Amicus Curiae for other appellants to the case on their behalf also. We heard Amicus Curiae and learned counsel for the appellants and learned Additional Government Advocate for the State, and perused the entire record. 3. Prosecution story, in brief, is that complainant Laxmi Devi (P. W. 4) is widow of Har Bahadur (deceased ). Her husband Har Bahadur was in service of Forest Department in a nursery at Gadoli, District Pauri Garhwal. RW. 4 Laxmi Devi used to live with her husband in a temporary shed (DERA ). Near by their residence, at some distance, accused labourers Man Bahadur, Kali Bahadur and Moti Singh used to live with accused Shankar Bahadur, who had employed them with him. Accused persons Man Bahadur, Kali Bahadur, Moti Singh and Shankar Bahadur used to molest Smt. Laxmi Devi (P. W. 4) by showing currency notes to her and used to wink at her. She complained about the conduct of accused persons to her husband. On which, Har Bahadur, husband of Smt. Laxmi Devi, objected to their conduct. Since then, they started nourishing grudge against Har Bahadur (deceased ). On 07-01-1983, at about 10:00 A. M. Har Bahadur sought permission from RW. 2 Darban Singh under whom he was working in the nursery, to go to ease out himself in the forest. When he went to ease out, he met on the way, accused persons Man Bahadur, Kali Bahadur, Moti Singh and two other Nepali companions. At that time, RW. 4 Laxmi Devi was carrying cow-dung. She saw above named accused persons Man Bahadur, Kali Bahadur and Moti Singh with their two associates, quarrelling with and beating her husband. On seeing this, she raised an alarm. RW. 1 Ram Lai, RW. 2 Darban Singh, RW. 5 Prem Bahadur and few other labourers rushed towards the scene of occurrence, where they saw accused Moti Singh along with other Nepali labourers, pushing Har Bahadur down from a hill. Har Bahadur on being pushed down lost his control and rolled down from 40 to 50 ft. and fell down on the road. The witnesses and complainant rushed to the place where Har Bahadur was lying in an injured condition and waited for some conveyance to take him (Har Bahadur) to the hospital but since no conveyance was available for 1/2 an hour, Har Bahadur succumbed to the injuries. On the same day i. e. 07-01-1983, at about 11:30 A. M. , RW. 4 Smt. Laxmi Devi lodged oral First Information Report with police station Pauri, which was at a distance of 8 kms. away from the place of occurrence. Head Constable Pitamber Datt, prepared the check report (Ext. A-2) on the basis of oral First Information Report and endorsed the same in the General Diary (Extract of which is Ext. A-3 on the record ). A crime No. 08 of 1983 was registered against accused/appellants Shankar Bahadur, Moti Singh, Man Bahadur, Kali Bahadur and two un known persons for offence allegedly committed by them, punishable under Sections 304/109/147/149 I. P. C. P. W. 7 Sub-Inspector Udai Pal Singh investi gated the crime. He went to the place of occurrence, took the dead body in his possession and prepared the inquest report (Ext. A-5), sketch of the dead body (Ext. A-6), police form No. 13/33 (Ext. A-7) and letter (Ext. A-8) to the Chief Medical Officer, requesting for post mortem examination. The Investi gating Officer collected the simple soil and blood stained soil from the place of occurrence and prepared memo (Ext. A-4 ). He recorded the statements of the witnesses and prepared the site plan (Ext. A-9 ). After making arrest of the accused persons, he submitted charge sheets (Ext. A-11) before the court against all the four accused persons, for their trial in connection of the offences allegedly committed by them, punishable under Section 147, 149, 302,109 I. P. C. 4. Magistrate after receiving the charge sheets, supplied the necessary copies to the accused persons, as re quired under Section 207 of Cr. P. C. and committed the case to the Court of Ses sions for trial. Learned Sessions Judge, after hearing the prosecution and the defence, framed only one charge of of fence punishable under Section 302 read with Section 149 I. P. C. against all the four accused persons namely, Shankar Bahadur, Man Bahadur, Kali Bahadur and Moti Singh. All the four denied the charge and claimed to be tried. On this, prosecution got exam ined P. W. 1 Ram Lai, an eye-witness, P. W. 2 Darban Singh, another eye-wit ness, P. W. 3 Dr. N. V. Singh, who con ducted autopsy, P. W. 4 Smt. Laxmi Devi (widow of the deceased), an informant and eye-witness, P. W. 5 Prem Bahadur yet another eye- witness, P. W. 6 Consta ble Vishveshwar Prasad, who took the dead body in sealed condition and investigated the crime. All the oral and documentary evidence was put to the accused persons under Section 313 of Cr. P. C. in reply to which they have al leged the same to be false. No evidence in defence was adduced on behalf of the accused persons. Learned Sessions Judge, after hearing the Public Prosecu tor and the learned counsel for the accused persons, before the trial court, found all the four accused persons namely, Shankar Bahadur, Man Bahadur, Kali Bahadur and Moti Singh, guilty of charge of offence punishable under Section 302 read with Section 149 of I. P. C. and convicted them. And after hearing on sentence, each one of them is sentenced to imprisonment for life. Accused Shankar Bahadur was fur ther sentenced to a fine of Rs. 500/- in default of payment of which, he is di rected to undergo further one-year's rig orous imprisonment. Aggrieved by said judgment, and order dated 19-07-1983, passed by learned Sessions Judge, this appear was preferred before the Allahabad High Court in the year 1983, from where it is transferred to this Court under Section 35 of U. P. Reorganisation Act, 2000, for its disposal. 5. Before further discussions, it is pertinent to mention here the ante mortem injuries found on the person of the deceased (Har Bahadur), at the time of post mortem examination (Ext. A-l), conducted by P. W. 3 Dr. N. V. Singh. Post mortem examination report, discloses following ante mortem injuries on the person of the deceased: 1. Contusion 5cm x 3cm obliquely placed 1cm below the right ear extending towards mastoid proc ess, reddish in colour, section un derneath tissue shows sign of bleeding, underneath temporal bone and part of occipital bone show linear fracture, which was placed in oblique direction. Un derneath of the fracture maningies and brain were intact, fracture shows sign of bleeding.

(2.) ABRASION 1cm x 5cm over and entire aspect of left pinna, reddish in colour, clotted blood present in external ear.

(3.) ABRASION 1. 5cm x 1cm reddish in colour placed 22cm below injury No. 4 parallel to it.