Jeetu and Another vs State of Uttarakhand

Hon''ble U.C. Dhyani, J.—This appeal, preferred u/s 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 26.09.2005, passed by Sessions Judge / II F.T.C., Haridwar, in Sessions Trial No. 403 of 2001, whereby said court has convicted accused / appellants Jeetu and Raju u/s 302 read with Section 34 and 452 of the Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life and also directed to pay a fine of Rs. 5,000/- u/s 302 read with Section 34 of I.P.C. The accused / appellants have also been sentenced to rigorous imprisonment for a period of three years and also directed to pay a fine of Rs. 2,000/- u/s 452 of I.P.C. The trial court also directed that in default of payment of fine relating to offence punishable u/s 302 read with Section 34 of I.P.C the accused / appellants shall further undergo rigorous imprisonment for a period of six months and in default of payment of fine relating to offence punishable u/s 452 of I.P.C. each one of the accused / appellants shall further undergo rigorous imprisonment for a period of two months. Both the sentences are directed to run concurrently.

We have heard learned counsel for the appellants, learned Addl. Government Advocate for the State and perused the lower court record.

Prosecution story, in brief, is that on 13.06.2001, P.W.1 Jitendra Kumar (informant) gave a written report (Ext. Ka-1) to police station Jwalapur, alleging that on 12.06.2001, at about 07:00 A.M., Jeetu and Raju, both sons of his uncle Manphool Singh assaulted his father Tungal Singh, mother Sumitra Devi and brother Jagpal with gandasa (a heavy sharp edged semispherical weapon) and lathi thereby and caused injuries to them, over a dispute relating to drainage of water. On the intervention of villagers they did not lodge the complaint with the police. On 13.06.2001, at night, when informant and his family members were sleeping in their house, Jeetu and Raju, sons of his uncle Manphool, both armed with gandasa (a heavy sharp edged semispherical weapon) entered in their house and suddenly struck many blows with gandasa on brother of the informant (Subhash) who was sleeping. On hue and cry of the injured, his father, mother, brother Jagpal, Smt. Sharmila w/o Jagpal and sister Km. Piyush came there and tried to apprehend the assailants, on which the assailants also struck blows with gandasa on the person of Km. Piyush and injured her. In the meantime, many a persons of their village assembled there and accused Jeetu and Raju succeeded in making good their escape from the scene of occurrence. The informant told the police that said incident took place at 03:30 A.M. in the night. Subhash, brother of the informant, succumbed to his injuries after sometime. His body was lying on the spot. His mother Sumitra Devi, brother Jagpal and sister Piyush have gone to District Hospital, Haridwar for their treatment. On the basis of said FIR, chick report (Ext. Ka-3) was lodged by the police and crime No. 207 of 2001 was registered against the accused / appellants in respect of offences punishable u/s 452, 302, 323 and 324 of I.P.C. on the same day i.e. 13.06.2001. Investigation of the case was taken up by P.W.8 S.I. Jasbir Singh Gilll. After taking the dead body into his possession inquest report (Ext. Ka-7) was prepared. He sent the dead body for postmortem examination. P.W. 5 Dr. P.K. Bhatnagar conducted the postmortem examination on the dead body of Subhash on the very day (13.06.2001), at about 01:20 P.M., and prepared autopsy report (Ext. Ka-2). He recorded four ante mortem injuries and opined that deceased had died of shock and haemorrhage due to ante mortem injuries. The injured was medically examined and memo (Ext. Ka-17) was also prepared in this regard. The Investigating Officer inspected the spot, interrogated the witnesses and prepared recovery memo (Ext. Ka-8) of pieces of blood stained bed sheet and mattress. P.W.8 S.I. Jasbir Singh Gilll took police remand of the accused and on 26.06.2001 on the disclosure made by the accused recovered gandassa (a heavy sharp edged semispherical weapon) used in the commission of crime and recovery memo (Ext. Ka-5) was prepared. He also prepared site plan of the place of incident (Ext. Ka-6) and site plan of place of recovery of weapon (Ext. Ka-18). After completion of investigation, the Investigating Officer submitted charge sheet (Ext. Ka-19) against accused Jeetu and Raju, for their trial in respect of offences punishable u/s 452, 302, 324, 323 of I.P.C.

The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused as required u/s 207 of Cr.P.C., committed the case to the court of Sessions for trial. On 21.11.2001, learned Sessions Judge, Haridwar after hearing the parties, framed charge of offences punishable u/s 323, 324, 302/34 and 452 of I.P.C., against both the accused, to which they pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Jitendra Kumar (informant and eyewitness), P.W.2 Jagpal (injured eyewitness); P.W.3 Piyush (injured eyewitness); P.W.4 Smt. Sumitra (injured eyewitness and mother of the deceased); P.W.5 Dr. P.K. Bhatnagar (who conducted postmortem examination); P.W.6 H.C. Jagat Singh (who prepared chick FIR); P.W.7 Contsable Satendra Tyagi (witness of preparation of recovery memo of the weapon); P.W.8 S.I. Jasbeer Singh Gilll (who started the investigation); P.W.9 Dr. Suresh Agarwal (who examined injuries on the person of injured Tungal); P.W.10 Dr. O.P. Agarwal (who examined injuries on the person of the witnesses Piyush, Smt. Sumitra and Jagpal); P.W.11. S.O. Kuldeep Singh Aswal (who submitted charge sheet against the accused). The oral and documentary evidence was put to the accused u/s 313 of Cr.P.C., in reply to which they alleged the evidence adduced against them to be false. They pleaded that they have been falsely implicated in the crime. In defence, D.W.1 Smt. Anita (w/o accused Jeetu); D.W.2 Satnam Singh (taxi driver) were produced. After hearing the parties, the trial court found that prosecution has successfully proved charges of offences punishable u/s 452 and 302 read with Section 34 of I.P.C. against both the accused and convicted them accordingly. However, the trial court acquitted the accused from the charge of offences punishable u/s 323 and 324 of I.P.C. giving them benefit of doubt. After hearing on sentence, the convicts Jeetu and Raju were sentenced to imprisonment for life u/s 302/34 of I.P.C. and rigorous imprisonment for a period of three years u/s 452 of I.P.C. Fines were also imposed. Aggrieved by said judgment and order dated 26.09.2005, this appeal is preferred by the convicts.

It will be worthwhile to take up the ante mortem injuries first which have been recorded by P.W.5 Dr. P.K. Bhatnagar in autopsy report (Ext. Ka-2), prepared by him after postmortem examination on dead body of Subhash on 13.06.2001, at 01:20 P.M. The same are being reproduced below from the autopsy report:-

i) Incised wound 14 x 3 cm bone deep 1 cm below right ear transversely placed up to right angle of mouth.

ii) Incised wound 13 x 2 cm upper part of neck right side muscle deep, tailing laterally, margins clean cut.

iii) Incised wound 12 x 1 cm below injury no. (ii) {1 cm below injury no. (ii)} muscle deep on right side, margins clean cut, tailing laterally.

iv) Contusion 6 x 3 cm occipital region. Maxilla and mandible sharply cut. Tongue cut on right side.

The Medical Officer recorded in the autopsy report that duration of death was about half day back. In the opinion of the Medical Officer the cause of death was shock and haemorrhage due to ante mortem injuries. The Medical Officer also opined that the death of the deceased could have been possible on 13.06.2001 at about 03:30 A.M. by blow of gandasa.

The incident is alleged to have taken place on 12.06.2001 at 7 p.m. and further on 13.06.2011 at 3:30 a.m. The report has been lodged on 13.06.2001 at 6:30 a.m. The distance between the police station and village Ahmadpur Grant where the alleged occurrence took place is about 8 kms. Hence there appears to be no delay in lodging the First Information Report. The said First Information Report has been lodged by Jitendra Kumar against the accused persons Jeetu and Raju for the offences punishable under sections 452, 302, 324 and 323 IPC. The accused persons are thus named in the First Information Report which says that on 12.06.2001 at about 7 p.m. the accused persons Jeetu and Raju sons of Manphool Singh causesd injuries to Tungal Singh (father ), Sumitra Devi (mother) and Jagpal (brother) of the informant Jitendra Kumar with gandasa and lathi. The villagers intervened in the matter and therefore, the police was not reported the matter. Again on 13.06.2001, in the night, when all the people were sleeping in their residences, Jeetu and Raju trespassed into their house having gandasa in their hands and inflicted blow over the informant''s brother Subhash while he was asleep. On hue and cry his father, mother, brother, wife Sharmila and sister Kumari Piyush saw the incident. They tried to apprehend Jeetu and Raju but they inflicted blow on his sister Piyush and injured her. In the meantime, other villagers also came there. Assailants fled away. The occurrence took place at about 3:30 a.m. Subhash died soon thereafter. The dead body was lying over there. Informant''s mother Sumitra Devi, brother Jagpal and sister Piyush had gone to District Hospital, Haridwar for their treatment.

In order to prove the prosecution story as many as 11 witnesses have been examined by the prosecution. In order to disprove the crime two witnesses have been examined on behalf of the defence.

P.W. 1 Jitendra Kumar has entered into the witness box and has supported the prosecution story in his examination-in-chief. The substance of the examination of chief of the informant Jitendra Kumar is almost the same as in the First Information Report. He has stated that he has submitted a written report and has proved the First Information Report Ext. Ka-1. He has also said that he has seen the incident in the light of electric bulb. In the cross examination P.W. 1 Jitendra Kumar has stated that Chhajju Singh was his grandfather, who had 5 sons viz. Sukkad Singh, Phool Singh, Manphool Singh, Kundan Singh and Tungal Singh. This witness was also put questions regarding the names of sons/daughters of Sukkad Singh, Phool Singh etc. to which he has replied. His eldest brother is Jagpal Singh. The second one was deceased Subhash and he is the 3rd son of his parents. His eldest sister is Sushila followed by Suman, Sushit, Piyush and Sharda Rani. He has no wife. Sharmila Devi is the wife of his elder brother Jagpal. The name of wife of the deceased Subhash is Shakunta Devi alias Chhoti. Shakunta Devi, alias Chhoti after the death of Subhash, has become his wife. Shakunta Devi @ Chhoti was not present at home on the date of occurrence.

P.W. 1 Jitendra Kumar has denied the fact that there was love-affair between Shakunta Devi with him and his elder brother Subhash tried to commit suicide earlier on account of this fact. He has also denied the fact that Subhash was murdered because of his alleged love-affair with Shakunta Devi. His neighbours are Jagdish, Jaipal and Manohar, all sons of Nanak. His other neighbours are Mahavir, Pratap, Sher Singh, Vishambher and Arjun. The Investigating Officer has not shown the source of light in his house. An electric pole on the North-South side is however, shown on the road. There is no boundary around the place of occurrence. His house is, in fact, a courtyard (gher). Five cots have been shown in the site plan. One of the cot was occupied by the deceased. The other cots were occupied by his sister Piyush, his mother Sumitra, his father Tungal and his brother Jagpal. The dispute (before this incident took place) on 12.06.2001 was in connection with water in which Raju and Jeetu committed marpeet with his family members. The matter was not reported because of the intervention of the villagers. He has denied the presence of Subhash in the incidence of 12.06.2001. Sumitra Devi, Jagpal Singh and Tungal Singh got injured in the incident of 12.06.2001. He tried to save his brother on 13.06.2001 but he did not receive any injury. There was no blood spot on his clothes. Incident took place on 13.06.2001 at 3:30 a.m. in the morning. Both the accused appellants had gandasa (a heavy sharp edged weapon) in their hands. When he heard the cries, he saw that three blows were inflicted on the person of victim Subhash. His sister Piyush also tried to save her brother. His father Tungal, brother Jagpal, mother Sumitra Devi, sister-in-law (bhabhi) Sharmila also tried to save Subhash. None except Piyush sustained injuries in the process. The villagers Kaliram, Pratap & Ramesh had gone with him to lodged the First Information Report at around 6 a.m. He has written the report of the incident on his own. The pencil /pen was obtained by him from a shop situated outside the Police Station. The investigation of this crime was conducted by S.O. Jasvir Singh Gill. He took his statements, got apprised with the incident, took him to the place of occurrence. Jasvir Singh Gill prepared the site plan at his instance. The incident took place within half a minute. Accused / appellant Jeetu and Raju inflicted blows on Subhash and fled away. The family of Manphool Singh is not residing in the village after this incident. Neither accused Jeetu nor Raju''s family is residing in the village. There is no motive, according to this witness to commit murder of Subhash. He has denied the murder was a culmination of love-affair between him and Shakunta Devi. He has also denied that this was a blind murder in which the accused persons have been falsely implicated.

There appears to be no infirmity in the statements of this witness. He has fully supported the prosecution version, much less the contents of the First Information Report. Note even single sentence is there in the statement of P.W. 1 Jitendra Kumar which can be said to be averse to the prosecution story. So far as the source of light is concerned the house of the informant is in open courtyard (gher) and there is a lamp post at the adjacent road. The incident took place in the month of June. Normally the people in the villages sleep outside their rooms in summer. During the incident, Kumari Piyush had also sustained injuries. The veracity of this witness cannot be doubted. A doubt was tried to be created by suggesting that the gruesome murder was a culmination of the love-affair between Jitendra and Shakunta Devi. The defence suggestion is an abstract suggestion. If Shakunta Devi had married Jitendra Kumar after the death of Subhash as is usually the case in agrarian society, they are hardly to blame for it. Why will Jitenra or his family members invent the name of the accused persons? Even if we presume for the sake of arguments that there is no motive behind the commission of this murder, it is settled proposition of law that when there is direct evidence the fact of motive goes into the back burner. It goes in the hind ssight. What remains in the forefront is the direct evidence. Why should the court not believe the eye witness ? Why should a prudent man will harp on the hypothesis that the younger brother of the deceased had an affair with his elder brother''s wife during brother''s life time? Had Jitendra harbouring a thought in his mind to kill Subhash, he would not have come to the witness box with such a determined mind as is explicit with the tone and tenor of his oral testimony. The quality of evidence tendered by him shows that he did not harbour any grudge or ill will against his elder brother. All these things were not required to be explained in this judgment, but for hypothetical suggestion put forward on behalf of the accused / appellants.

P.W. 2 Jagpal son of Tungal Singh has, in his examination-in-chief, revisited the story as mentioned in the First Information Report. He has said about the incident of 12.06.2001 and subsequently of 13.06.2001 in the intervening night of 12.06.2001 /13.06.2001. He has rightly pointed out in his examination-in-chief that there was an electric pole (lamp post) having a bulb. When at around 3:30 in the night (technically, morning) appellants Jeetu and Raju inflicted blows on his brother Subhash, on hue and cry he saw that they gave fatal blows of gandasa on his brother Subhash. His sister Piyush tried to save her brother inviting wrath of the assailants and they inflicted blow on his sister Piyush also. Shyam Singh and Rajesh came to the spot. Subhash breathed his last on the spot. The reason attributed to the incident of 12.06.2001 is the dispute over water. The report was lodged by his brother Jitendra. He along with his father, mother and sister had come to Government Hospital for treatment.

In the cross-examination he (P.W. 2 Jagpal ) has admitted that Shakunta /Shakuntala alias Chhoti became Jitendra''s wife after the murder of Subhash, but where does this question of accused lead to? It is nowhere evident from the record that the murder is the culmination of alleged love affair between Shakunta and Jitendra. The appellants cannot be permitted to take benefit of the fact that Shakunta got married to Jitendra after the death of Subhash. Even if we presume for the sake of arguments that there was love affair (not proved on record), it is not the case of the accused that Jitendra murdered Subhash. The suggestion advanced on behalf of the appellants disappears like a thin air. Another suggestion put forth on behalf of the accused / appellants has been denied by P.W. 2 Jagpal to say that Shakunta and Jitendra were caught red handed in comprising position by deceased Subhash. He has also denied that Subhash tried to commit suicide in the past. This witness was also asked questions on the incident of 12.06.2001 and this witness has again satisfactorily replied to the questions asked in the cross-examination. He has denied that there is any land dispute between the sons of his grandfather Chhaju Singh.

Elaborating the incident of 13.06.2001, P.W. 2 Jagpal has further stated in the cross-examination that both of the accused inflicted blows on Subhash. Subhash was sleeping at a distance of five steps. He has mentioned the distance between the cots of family members. The accused persons fled away from the scene of occurrence soon after committing the crime. The accused persons had already inflicted blows of gandasa on Subhash by that time. The family members tried to save the victim. Jitendra, Piyush, Sharmila, Tungal and Sumitra Devi were present at the time of incident. Witnesses Shyam Singh and Rajesh did not belong to his village. They belong to Laxar and Manglore instead. Thus we do not find any infirmity in the evidence of this witness also. He is an eyewitness and has been able to withstand the test of cross-examination. He too is a natural witness whose presence on the spot cannot be doubted.

P.W. 3 Smt. Piyush w/o Sunder Lal and daughter of Tungal Singh who also sustained injuries in the incident has said in her examination-in-chief that about 2 years back around 7 p.m. a dispute over water arose between father and brother with the accused Raju and Jeetu. Raju and Jeetu had beaten her father Tungal Singh and brother Jagpal and when her mother tried to save them they had also beaten her mother. On the fateful night Jeetu and Raju murdered Subhash. When she tried to rescue her brother, she also incurred their wrath. They inflicted blows on her also causing injuries. She herself had seen the assailants killing her brother and fleeing away from the scene.

When this witness was cross-examined, by then she was a married woman. She did not come to depose before the court from her matrimonial home. Her husband was not present in the court. Regarding the incident of 12.06.2001 she said that Jeetu was having a danda and Raju was having gandasa (on 12.06.2001 at 7:00 p.m.). Victim Subhash was not present there on 12.06.2001. The people intervened in the matter and therefore, the day was saved for them. On the fateful night both Raju and Jeetu were having gandasa in their hands. Jeetu inflicted his blow on Subhash. She has definitely seen the gruesome murder. It was she who had tried to save her brother Subhash and she sustained injures on her hand in the same. Her father was sleeping at a little farther. Since she was close to him therefore, she only tried to save him and none else. Raju and Jeetu fled away from the scene. She did not go to the Police Station. She has denied that the real culprits were someone else who killed her brother.

In this way, nothing has come out in the cross-examination of this witness who is the real sister of Subhash and who also sustained injuries while saving him. There is a minor variation in the cross-examination of this witness with that of her predecessors, in as much as while she has said that she alone had tried to save Subhash, earlier witness had stated that everybody tried to save Subhash but this fact does not go to the root of prosecution story and therefore, this minor variation does not help the accused / appellants.

P.W. 4 Smt. Sumitra Devi has supported the prosecution story in her examination-in-chief. She has elaborated in her ocular evidence, both the incidents of 12.06.2001 as well as 13.06.2001. She is the mother of the deceased. In her cross-examination, she has stated that the accused persons present in the court had killed her son Subhash. Police had arrived at their residence on 13.06.2001 at 10 a.m. Her son Jitendra also accompanied them. When they were sleeping on the fateful night her cot at no. 3. The gandasa by which the accused persons had killed her son is not before her. She was also examined by the Doctor (relating to incidence of 12.06.2001). She has denied the suggestion that the accused persons have been falsely implicated.

P.W. 5 Doctor P.K.Bhatnagar was posted as Medical Officer in District Hospital, Haridwar on 13.06.2001. He conducted the postmortem of the dead body of Subhash found ante mortem injuries which have been mentioned at para 5 of the text of this judgment.

He has opined that there was semi digested food in the intestine of the deceased who died approx half a day ago because of injuries sustained by him. He has proved his report Ext. Ka-2 and has further opined that the death of the victim is possible on 13.06.2001 with the injuries caused by blows of gandasa. Many a questions were put in the cross-examination of this witness but nothing favourable has come out in favour of the accused / appellants. The Doctor has also answered hypothetical questions, which is nobody''s case. The medical evidence has fully supported the eyewitness account of the prosecution witness. There is coherence between the ocular version and the medical evidence.

P.W. 6 H.C. Jagat Singh has proved chik First Information Report Ext. Ka-3 and copy of G.D. Ext. Ka-4. He was also put to cross-examination and he has replied the questions asked by the learned counsel for the appellants.

P.W. 7 Constable Satyendra Tyagi is an important witness. He has stated that on 26.06.2001 he was posted as Constable in Police Station Jwalapur. Accused Jeetu and Raju were produced by the police personnel in the court. The accused / appellants requested them to take to Sahdevpur village and when they reached 5 kilometers ahead then they confessed that they have committed murder of Subhash and they can get the weapons recovered. Jeetu & Raju entered into a sugarcane field and took out gandasas from the sugarcane field. Witnesses Rajesh & Pratap were present there. The recovery memo Ext. Ka-5 is proved by this witness. Both the gandasas (heavy sharp edged weapons) thus got recovered by the accused persons were presented before the court as Ext. 1 & 3. In the cross-examination this witness stated that he had never been to the place from where the gandasas were recovered earlier. The accused persons revealed them that the field belongs to Chaudhary Ajit Singh, who was not present there. The public witnesses were present there. Jeetu and Raju put their signatures on the recovery memo. Thus the testimony of this witness is relevant u/s 27 of the Indian Evidence Act. On the pointing of the accused persons and on their disclosure two gandasas used in the commission of crime were got recovered. Thus it is a case in which the direct evidence is there, most natural witnesses have been produced, we cannot say that they are chance witnesses, ocular version is supported by the medical evidence and above all, there is recovery of incriminating articles in support of the prosecution story. What a fine composition of the evidence collected during the investigation and produced on behalf of the prosecution!

P.W. 8 SI Jasvir Singh Gill is the Investigating Officer who has proved site plan Ext. Ka-6, panchnama Ext. Ka-7, recovery of taking blood stained bed sheet Ext. Ka-8, sample of seal of dead body Ext. Ka-9, Chalan Nash ka-10, Letter C.M.O. Ext. Ka-11 & Ka -12, Photo Nash Ext. Ka -13. This witness has said that the accused persons had surrendered before the court. He took the statements of the accused u/s 161 Cr. P.C. in the jail. Accused persons had confessed their guilt and sought the recovery of weapons used in the commission of crime. An application for police custody remand of the accused was given on 22.06.2001 which was accepted by the court on 25.06.2001. This witness has supported the version of P.W. 7 Constable Satyendra Tyagi and said that both the accused persons, in the presence of the public witnesses Rajesh and Pratap, got such weapons recovered. He has also proved his signatures on recovery memo Ext. Ka-5. After this, the investigation was conducted by Inspector Kuldeep Singh Aswal. This witness was put to cross-examination. He has replied the questions. None of the replies have caused embarrassment to the prosecution. Thus the prosecution story is further strengthened by the evidence of P.W. 8, S.I. Jasvir Singh Gill.

P.W. 9 Doctor Suresh Agarwal, In Charge Medical Officer Public Health Centre, Jwalapur examined the injuries sustained by Tungal and has proved his report Ext. Ka-14. He found abraded contusion 8 cm x 4 cm left scapular region, abrasion 3 cm x 2 cm left elbow, contused swelling 10 cm x 6 cm right side of chest, abraded contusion 8 cm x 5 cm left hip, all bluish in colour. According to this Medical Officer, injuries on the person of Tungal Singh were caused by friction and hit of rough and hard object.

P.W. 10 Doctor O.P. Agarwal examined the injuries sustained by Kumari Piyush and has proved his report Ext. Ka-15. He found a lacerated wound 2 cm x 1cm x bone deep on dorsum aspect of ring finger of left hand on proximal phalanx, fresh bleeding present, obliquely placed. He also found linear abrasion measuring 8 cm x 0.1 cm on the lateral aspect of right upper arm situated 3 cm below top of shoulder extending obliquely downward. X-ray of right hand was also advised on the person of Km. Piyush.

P.W. 10 Doctor O.P. Agarwal also examined the injuries caused to Smt. Sumitra and Jagpal Singh and has proved their medical reports Ext. Ka 16 and Ext. Ka -17. He has found stitched wound measuring 7 cm x 5 cm situated on the top of left shoulder transversely placed, contused swelling in an area of 3 cm x 1 cm on the back of left middle finger, contused swelling 1 cm x 1 cm on palmar aspect of distal phalanx of left ring finger, x-ray of right hand advised on the person of Sumitra. The same Medical Officer found stitch wound measuring 1 cm x 1 cm situated on palmar aspect of right hand in space between thumb and index finger, complaint of pain in whole frontal and parietal part of head on the person of Jagpal Singh.

P.W. 9 Doctor Suresh Agarwal and P.W. 10 Doctor O.P. Agarwal were not cross examined on behalf of the accused / appellants despite affording opportunity. Thus medical evidence of P.W. 9 Doctor Suresh Agarwal and P.W. 10 Doctor O.P. Agarwal, Deputy C. M. O., Haridwar lend support to the prosecution story as a precursor to the incident of 13.06.2001 in which Km. Piyush also sustained injuries.

P.W. 11 Kuldeep Singh Aswal, In charge Inspector who took over the investigation from P.W. 8 S.I. Jasvir Singh Gill, has prepared site plan Ext. Ka -18 and submitted charge sheet Ext. Ka -19. He has also proved the material Exts. shirt, pant as Exts. 5 to 8. This witness was put to cross-examination and his testimony too has emerged unscathed in favour of the prosecution. He has altogether denied the suggestion of learned counsel for the accused that there were illicit relations between the informant Jitendra and the wife of the deceased. If the suggestion put forward on behalf of the accused is taken to be true then why the family members like father, mother, sister and brother of Jitendra have supported the case of prosecution? Forget about informant Jitendra for a moment. Why others will name their own relatives without a cause ? If there were alleged illicit relations between Jitendra and wife of the deceased, the natural course was that the family members would have disassociated themselves with Jitendra, specially his mother and sister. But the case here is entirely different. All the family members have united themselves in support of informant Jitendra. In other words, the defence propagated on behalf of the accused / appellants has no force. It is simply beating about bush every time.

The occurrence took place inside the house. The eyewitnesses presented on behalf of the prosecution are all natural witnesses. They are not chance witnesses. There was no scope for procuring the attendance of public witnesses. None else, besides the family members, is supposed to be there on 3:30 a.m. gandasa is a sharp edged weapon. It has cut /slit/chopped the neck of Subhash. At the time of killing of Subhash, no one received injuries except Km. Piyush. Appellants are named in the FIR.

Learned counsel for the accused / appellants questioned the veracity of prosecution story and argued that the murder did not take place where it is alleged to have taken place. The primary reason for saying so is that the Investigating Officer did not recover blood from the earth. The argument so advanced on behalf of the learned counsel for the appellants does not hold water in as much as the Investigating Officer has said that there was no blood on the floor. Blood did not drop on earth. Moreover, it was never suggested on behalf of the accused persons that no blood was in the cot or mattress over cot. They never suggested that the blood will ooze out like a sprinkle. There was no question of dropping of blood on earth. The deceased was sleeping on the cot. Even if we presume for arguments saying that the blood oozed out, dropped on earth and not collected by the IO, the inference will be that the Investigating Officer has not done the investigation correctly. Even if it is so, there are plethora of the rulings of the Hon''ble Apex Court to suggest that the prosecution cannot be faulted for the mistakes committed by the Investigating Officer during the investigation. It cannot therefore, be inferred that the murder did not take place in the manner the prosecution has projected the same to be. We are not inclined to accept the contention raised on behalf of the accused /appellants. It is to be pointed out here at the cost of repetition that everything has to be looked upon from the point of view of a prudent person. The imagination will not be permitted to hold its wings.

D.W. 1 Smt. Anita is an illiterate lady. She is wife of the accused / appellant Jeetu. She has tried to highlight the relations between Shakunta and Jitendra. Subhash is said to have been perturbed over the said affairs and he tried to commit suicide. Before proceeding further it may be said at the every outset that it is not a case of strangulation of Subhash. It is also not a case of hanging of Subhash to weed out the possibility of theory of suicide. Had he committed suicide the medical evidence would have been otherwise. Here it is a clear cut case of brutal murder. Where is the question of suspecting that Subhash might have committed suicide ?

Coming back to D.W. 1 Anita''s evidence. She has said that Shakuntala married to Jitendra within a few days of murder. Subhash used to reside separately from rest of his family members. She has stated that Subhash had no quarrel with Jeetu before this incidence. In the cross-examination she has stated that Jeetu is her husband and Raju is her brother-in-law (dewar). She is doing pairvi in this case. The father-in-law and mother-in-law of Subhash did not come on the day of occurrence. Instead they had come on 3rd day of incident. She did not attend the marriage of Jitendra with Shakunta. She wants to save her husband and brother-in-law. She did not disclose anything to any of the Police authorities about this case earlier. The testimony of D.W. 1 Smt. Anita is not capable of creating suspicion in the mind of any reasonable and prudent man, much less the court.

D.W. 2 Satnam Singh has also tried to highlight love-affairs of Jitendra and Shakunta to which Subhash had objected. He has also said that Subhash had tried to commit suicide on this account. Subhash''s wife did not come when he died. Instead she came on the 3rd day and married with Jitendra. She has got two children from each wedlock. This D.W. 2 Satnam Singh is a surprise witness. He is a taxi driver and has no connection either with the family of victim or the accused /appellants, although he resides in the same locality. He has said at page 6 of his cross-examination that Subhash was not killed but has committed suicide. We have already discussed this aspect of the matter that had it been a case of suicide the medical evidence would have been entirely different and the prosecution witnesses (eyewitness and others) would not have emerged with such flying colours as has been done in this case.

There is no infirmity in the judgment of the learned trial court. Prosecution has been able to prove its case against the accused / appellants beyond reasonable doubt, hence the appeal fails.

It will be appropriate to mention here that the accused persons had been acquitted by the trial court in respect of offences punishable under sections 323 & 324 of IPC giving them benefit of doubt and there is no State appeal against such an acquittal.

The appeal is accordingly dismissed. The conviction and sentence recorded by the trial court against the accused / appellants Jeetu and Raju in respect of offences punishable u/s 302 IPC read with section 34 IPC and 452 of I.P.C. are hereby affirmed. Accused / appellants Jeetu and Raju are in jail. Let a copy of the judgment be sent to the Superintendent of Jail concerned, where the accused / appellants are serving out their sentence. The convicts Jeetu & Raju shall serve out remaining part of the sentence awarded to them by the trial court.

Let lower court record be sent back for ensuring compliance of this order.