PRAFULLA C. PANT, J.
(1.) This Criminal Appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter for brevity Cr. P.C.), is directed against judgment and order dated 5-5-1994, passed in Sessions Trial No. 302 of 1992, by the then learned IVth Additional Sessions Judge, Nainital, whereby appellants Jaleel and Husan Bano are convicted under Section 302 read with Section 34 and under Section 307 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity IPC). By the impugned judgment and order, appellant Jaleel is sentenced under Section 302/34, IPC to life imprisonment and fine of Rs. 2.000/- in default of payment of which one year rigorous imprisonment and under section 307/34 of ipc to five years rigorous imprisonment and fine of Rs.500/- in default of payment of which three months additional rigorous imprisonment. Appellant Husan Bano is sentenced under Section 302/34, IPC to life imprisonment and fine of Rs.500/-, in default of payment of which, three months rigorous imprisonment and under Section 307/34, IPC to five years rigorous imprisonment and fine of Rs.5,00/- in default of payment of which three months further rigorous imprisonment.
(2.) In brief, prosecution story is that Anwar, resident of village Darau, transferred his land equally to his brothers Jaleel (appellant No. 1) and Saleel (deceased) before he settled at Kichha. Jaleel got constructed his toilet over the portion of land transferred to Saleel by Anwar. This narrowed the passage of Saleel and he asked Jaleel to remove the toilet. He also made complaint to Gram Pradhan, who on his part also asked Jaleel to remove the toilet. However, Jaleel did not relent. On 15-5-1992, Saleel raised his boundary wall over his land which deprived Jaleel from using the disputed toilet. This infuriated him. On the intervening night of 15th and 16th of May, 1992 at about 2.00 a.m. - 2.30 a.m., Jaleel armed with knife, along with Husn Bano (appellant No. 2) armed with 'GANDASA', came to the place where Saleel was sleeping and started cutting his head. On the cries of Saleel, his wife Haseena (P.W.1), intervened to save her husband but the appellants inflicted injuries with knife and 'GANDASA' on her person also. Meanwhile, Nababul Ahmed (P.W. 3), Akhtari Begum (P.W. 2) and one Arif Khan also reached at the scene of occurrence. Saleel died of the injuries at the spot. His wife Haseena was taken to Soban Singh Jina Base Hospital, Haldwani, Nababul Ahmed (P.W. 3), lodged First Information Report (Exh. A-1), soon after the incident on 16-5-1992 at about 3-15 a.m. at Police Station Kichha. A check report (Exh.A-5) was prepared by the police and crime No. 167 of 1992 was registered against both the appellants under sections 302 and 307 of ipc. An entry in the General Diary was made at serial No. 5 on the same day i.e. 16-5-1992 at 3.15 a.m. (copy of extract Exh. A-6), regarding the FIR been lodged. Haseena (P.W. 1), the injured who was taken to Soban Singh Jina Base Hospital, Haldwani, was medically examined on the very day i.e. on 16-5-1992 at about 5-45 a.m. The following injuries were found on the person of Smt. Haseena, and recorded by Dr. S.C. Tamta (P.W. 4) who prepared injury report (Exh. A-2):- 1. Incised wound 7 cm x 1 cm x muscle deep on the left side of the head. 3 cm above the ear. Margins were smooth and regular, Bleeding present. 2. Incised wound 5 cm x 1 cm x muscle deep on back of left ear including ear pinna, 3 cm below injury No.1. Margin smooth and regular. Bleeding present. 3.Incised wound 7 cm x 6 cm x bone deep in left scapula region. Margin smooth and regular, Bleeding present. 4.Abrasions multiple on left index and middle finger in an area of 3 cm x 4 cm. Bleeding present. 5.Incised wound 1.5 cm x 4 cm x muscle deep on 1st phalanx of right ring finger. In dorsal aspect bleeding present. 6.Incised wound 1.5 cm x .5 cm x 1 cm on the upper lip. Bleeding present. 7.Incised wound 3.5 cm x 1 cm x scalp deep on back of head 7 cm from the ear. Bleeding present. Margins smooth and regular. 8.Incised wound 2 cm x .5 cm x scalp deep on back of head 3 cm away from injury No.7. Margins regular and smooth. Bleeding present. 9.Incised wound 5 cm x 1 cm x bone deep on right ring finger, Bleeding present. 10.Incised wound 1.5 cm x 1 cm x muscle deep on left forearm. Dorsal aspect 4 cm below the elbow. Bleeding present. At the end of his report, the Medical Officer observed that injuries were caused by sharp edged object and duration was fresh. The injured Haseena was admitted in the Soban Singh Jina Base Hospital, Haldwani with Bed Head Ticket No. 2433 (Exh. A-3).
(3.) After the FIR was lodged, the police went to the village Darau on the very day i.e. on 16-5-1992 and took the dead body of Saleel in their possession and prepared the inquest report (Exh. A-7), before the witnesses. Thereafter letter (Exh. A-8) to the Chief Medical Officer, was prepared and the dead body was sent for autopsy along with the diagram (Exh. A-9) and other necessary papers police Form No. 13 (Exh. A-11), sample seal (Exh. A-12) with the request for post-mortem examination.
(4.) Dr. S. P. Ojha (P.W. 9), conducted autopsy on the body of Saleel and prepared post-mortem report (Exh. A-19) on the very day i.e. on 16-5-1992 at 2.00 p.m. The Medical Officer observed that the dead body was of an average built young man. Rigour mortis was present all over the body. He recorded following ante-mortem injuries of the deceased :- 1. Incised wound 10 cm. x 2 cm on the left side of the face from outer portion of left eye towards the jaw. 2. Incised wound 10 cm x 2 cm on left side of scalp, extending from left ear to lateral part of the head. It was muscle deep and 2 cm below the injury No.1. 3. Incised wound 5 cm x 2 cm towards left side of the neck. On opening, found bone deep cutting, vital structure, including third cervical bone. 4. Incised wound 5 cm x 2 cm towards left side of the neck. Muscle deep 2 cm below the injury No. 3. 5. Incised wound 5 cm x 1 cm on the back of the left hand with a fracture at first I.P. bone of ring finger. On internal examination, membrances and brain were found lacerated. Second and third vertebrae were found cut. Nothing abnormal found in the lungs. Right chamber of the heart was partly full and left chamber empty. In the small intestine, semi-digested food with gases was found and large intestine was filled with faecal matter. According to the Medical Officer, cause of the death was shock due to the ante-mortem injuries and excessive bleeding.
(5.) On completion of the investigation, the Investigating Officer submitted charge-sheet (Exh. A-18) against both the appellants Jaleel and Husn Bano for their trial in respect of offences, punishable under Section 302 and under Section 307, IPC. The concerned Magistrate, on receiving the charge-sheet, after giving the necessary copies to the accused persons, committed the case to the Court of Session. It appears that the Sessions Judge transferred the case to the IVth Additional Sessions Judge, Nainital, who after hearing the parties, framed charges on 18-5-1993, under Section 302 read with Section 34 and under Section 307 read with Section 34 of IPC, against both the appellants who pleaded not guilty and claimed to be tried. Thereafter prosecution got examined, P.W.1 Haseena (injured), P.W. 2 Akhtari Begum (eye-witness), P.W. 3 Nababul Ahmed (Informant and eye-witness), P.W. 4 Dr. S.C. Tamta (who medically examined injured Haseena), P.W. 5 Taahid (scribe of FIR). P.W. 6 Homeguard Mahendra Pal Singh (filed his affidavit regarding preparation of inquest report), P.W. 7 Sanawar Khan (witness of the recovery of knife at the instance of appellant No. 1), P.W. 8 Sub-Inspector Rishipal Singh (Investigating Officer) and P.W. 9 Dr. S. P. Ojha (who performed the post-mortem examination). The oral and documentary evidence and material exhibits were put to the appellants under Section 313 of Cr. P.C. to which they alleged it to be false. No evidence was adduced in defence. After hearing the parties, learned IVth Additional Sessions Judge, Nainital, convicted both the appellants under Section 302/34 and under Section 307/34, IPC and sentenced them as mentioned earlier. Aggrieved by which, this appeal has been preferred.
(6.) We heard learned counsel for the parties and perused the entire evidence on record.
(7.) The statement of P.W. 3 Nababul Ahmed, the eye-witness who lodged the FIR (Exh.A-1) read with check report (Exh.A.5) and copy of the General Diary (Ex. A-6), shows that the FIR was lodged promptly without delay. The incident occurred between 2.00 2.30 a.m. on 16-5-1992 and on the very day the FIR has been lodged at 3.15 a.m. with Police Station, Kichha which is 7 Kms. away from the village Darau. As to the source of light, P.W.1 Haseena injured, P.W. 2 Akhtari Begum and P.W. 3 Nababul Ahmed, have categorically stated that there was electric light at the place of occurrence in which they witnessed the incident. Site Plan (Exh. A-13) shows that the incident had taken place outside the kothri of the deceased, where he was sleeping in the open space. The Site Plan further shows that there were electric polls in the village at point No. 7 and point No. 8. The electric poll at point No. 8 was just near the kothri of the deceased. The incised wounds as mentioned in Medical Examination Report (Exh. A-2) recorded by P.W. 4 Dr. S.C. Tamta at 5.45 a.m. on 16-5-1992, on the person of Haseena (P.W. 1) which includes nine incised wounds, corroborates the fact that the sharp edged weapon was used in commission of the crime. This fact also gets corroboration from the post-mortem report (Exh. A-19) which discloses, as many as five incised wounds as ante-mortem injuries on the dead body of Saleel (deceased). It is a matter of common knowledge that 'GANDASA' as well as knife are sharp edged weapons. Presence of witness P.W.1, being wife of the deceased and that of neighbours P.W. 2 Akhtari Begum and P.W. 3 Nababul Ahmed is natural at the time of the occurrence. In the circumstances, evidence adduced by injured witness P.W.1 Haseena (W/o deceased), is reliable and trustworthy. She has stated that after her husband constructed boundary wall over his land, which deprived the appellants from using the toilet they had constructed over it, the appellants gave threat to her husband that they will see him in the night and thereafter at about 2.30 a.m. in the night, when Saleel (deceased) was sleeping, she heard cries of her husband and saw Jaleel (appellant No. 1), armed with knife and appellant No. 2 Husn Bano (appellant No. 2), armed with 'GANDASA' killing her husband. This witness further states that when she tried to intervene, she was also inflicted injuries on her person by both the appellants. This witness has also stated that witness Nababul Ahmed and Abdul Raoof, reached at the spot on hearing the shouts. Statement of this witness gets corroboration from the statement of P.W. 2 Akhtari Begum and P.W. 3 Nababul Ahmed. In view of the medical reports and the documents, mentioned earlier, proved by the witnesses produced by prosecution, read with the statements of the above three eye-witnesses, it is established on the record beyond all reasonable doubt that the appellants with common intention, have committed the murder of Saleel and also made an attempt to commit murder of Haseena (P.W. 1) when she intervened to save her husband.
(8.) Learned counsel for the appellants, argued that the appellant No. 2 was not assigned any specific role and she has wrongly been convicted. We are unable to agree with the submission of the learned counsel for the appellants, for the reason that there is categorical evidence on record that appellant No. 2 was also armed with the deadly weapon 'GANDASA' and she too was actively participating in the crime. It is further contended on behalf of the appellants that P.W.3 Nababul Ahmed has stated that Husan Bano (appellant No. 2) was standing on verandah. After going through the evidence on record, we are of the view that the first witness to reach at the spot is P.W. 1 Haseena who herself got injured and P.W. 2 Akhtari Begum and P.W. 3 Nababul Ahmed have reached there afterwards. P.W. 3 Nababul Ahmed himself says, by the time he reached, apart from Jaleel Ahmed, Husna Bano was also standing there, armed with 'GANDASA'. As such this does not create any doubt as to the truthfulness of the prosecution story.
(9.) Shri Pankaj Purohit, Amicus Curiae for the appellants further argued that there is no injury of 'GANDASA' either on the person of P.W.1 Haseena or those found as ante-mortem injuries on the dead body of the deceased. We are unable to agree with learned counsel for the appellants, for the reason that P.W. 4 Dr. S.C. Tamta has stated in his examination in chief that the injuries inflicted on Haseena could have been caused by sharp edged weapon like knife or 'GANDASA'. Not only this, P.W. 9 Dr. S. P. Ojha too, in his examination in chief, states that the injuries on Saleel before his death could have been caused by sharp edged weapon like knife or 'GANDASA'. And there is eye witness account that injuries were caused with knife by appellant No.1 and 'GANDASA' by appellant No. 2.
(10.) Lastly, it is argued on behalf of the appellants that injuries on the person of Huseena is simple in nature as such it can make out case under Section 325 and not under Section 307, IPC. We are of the opinion that had the injuries not been in the vital part, we would have accepted the submission. But injury Nos.1 and 2 itself, as mentioned in exhibit A-2 are on the head of Haseena (P.W.1) as such learned trial Court has rightly found appellants guilty also of offence punishable under Section 307 read with Section 34 of IPC. It is also contended by the learned counsel for the appellants that 'GANDASA' used in the crime, has not been recovered by the Investigating Officer. On examination of the eye-witness account narrated by witnesses which is natural and trustworthy, we are of the view that in the present case, it does not make difference if the 'GANDASA' is not recovered by the Investigating Officer. We are in agreement with the findings of learned trial Court regarding conviction of appellants, and sentences awarded to them, and see no reason to interfere with the same.
(11.) In the circumstances, for the reasons as discussed above, the appeal is liable to be dismissed. The appeal is dismissed. The appellants if on bail, be taken into custody by the Court concerned for serving out the sentence. Appeal dismissed.