JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 8.10.2002 passed by the Sessions Judge, Meerut in S.T. No. 540 of 2001 whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life.
2. The report of the occurrence was lodged by Shravan Kumar at police station Kharkhauda on 16.1.2001 at 6.30 a.m.. According to the allegations of the report the informant is a Contractor of labourers in Jubaida Cold Storage. On 15.11.2001 at about 7 p.m. an altercation took place between Nandu and Padam Kumar and he had intervened in the dispute. It is further alleged that in the night at about 2 a.m.. Padam Kumar committed the murder of Nandu who was also labourer in the Cold Storage by an axe. The occurrence was witnessed by the informant, Farooq and Abbas, who were also working in the Jubaida Cold Storage as labourer. They arrested Padam Kumar on the spot and detained there. The dead body was lying on the spot. A report was registered at the police station Kharkhauda under Section 302 I.P.C. After the registration of the case S.I. Man Singh Dagar commenced investigation. The case was entered in G.D. No. 8 at 6.30 a.m.. He recorded the statement of the informant, constable Manveer Singh, scribe of the report and reached at the place of occurrence and on his direction S.I. Pradeep Kumar prepared the inquest memo, inspected the place of occurrence and recovered Kulhari and prepared its recovery memo. He also collected plain and blood stained earth and also blood stained rope of cot. He also recorded the statement of Abbas, eyewitness and Padam Kumar was also arrested. On 19.1.2001 he recorded the statement of Pradeep Kumar, inquest witness. On 22.6.2001 he submitted charge sheet against the accused person. The site plan is Ext. Ka-12 and charge sheet is Ext. Ka-3. The chik F.I.R. is Ext. Ka-14 and G.D. entry is Ext. Ka-15. The recovery memo of Kulhari, blood stained earth is Ext. Ka-16.
3. Dr. P.K. Bansal had conducted the post mortem examination of the deceased and noted following ante mortem injuries:
1. Incised wound 5 cm. × 1 cm. × bone deep on back of right side of head 3 cm. posterior to right ear.
2. Five incised wounds on right side of lower part of face and laterior part of right side of neck. Bone cut and muscle deep ranging of size 7 cm. × 2 cm. and 4 cm. × 1.5 cm. and muscle deep, right mandible and third circular vertebra broken. All injuries were 16 cm. × 12 cm. in area. Underneath vessels were cut.
4. In the opinion of the doctor cause of death was due to ante mortem injuries.
5. After the investigation charge sheet was submitted and the case was committed to the court of Session. The Sessions Judge framed charge under Section 302 I.P.C.
6. The prosecution had examined 7 witnesses in all. P.W. 1 Azam Ali, P.W. 2 Farooq, P.W. 3 Shravan, P.W. 4 Pradip Kumar Singh, P.W. 5 Ajab Singh, P.W. 6 Dr. P.K. Bansal and P.W. 7 Maan Singh Dagar.
7. The Sessions Judge after considering the evidence on record convicted the appellant, as aforesaid. Hence this appeal.
8. We have heard Smt. Kamla Singh, Amicus Curiae for the appellant and Shri A.K. Singh, learned A.G.A. for the State.
9. It is submitted by learned Counsel for the appellant that the appellant has been falsely implicated in this case, it was a case of sudden provocation and the Sessions Judge has wrongly convicted the appellant under Section 302 I.P.C. On the contrary learned Counsel for the State submitted that the prosecution had proved its case beyond reasonable doubt and the Sessions Judge has rightly convicted the appellant under Section 302 I.P.C.
10. In order to appreciate the submissions of learned Counsel for the appellant we have to examine the evidence on record cautiously.
11. P.W. 1 Azam Ali is the maker of the F.I.R. He noted down the written report on the dictation of P.W. 3 Shrawan Kumar who is eye witness of the occurrence and therefore, his testimony on the point of eye account is of no use but his making the F.I.R. is very material in this case and there is nothing to disbelieve his testimony on this point of making the F.I.R.
12. P.W. 2 Farooq deposed that he was sleeping by the side of Nandu at the place of occurrence. He also works in Jubaida Cold Storage. He woke up on hearing the shrieks and saw an axe in the hand of Padam Kumar which was blood stained and he also saw Nandu in injured condition who succumbed to his injuries. He caught hold of the axe of the appellant and snatched it and with the help of other persons apprehended the appellant. His presence at the time of occurrence cannot be doubted. He is also witness of the inquest and blood stained and plain earth. He had corroborated the prosecution story on each and every material point. He was subjected to lengthy cross-examination but nothing could be elicited to discredit his testimony.
13. P.W. 3 Shravan deposed that occurrence took place in the night of 15/16.1.2001. He was sleeping at some distance from Nandu in Jubaida Cold Storage. He woke up hearing the shrieks and saw that Padam Kumar was assaulting Nandu. Abbas and Farooq snatched the axe of Padam Kumar and caught hold of him and tied him. Nandu succumbed to his injuries.
14. The testimony of both the eye witnesses inspire confidence. There was no motive for the witnesses to falsely implicate the appellant Padam Kumar. Their presence cannot be doubted at the place of occurrence because the witnesses, deceased and appellant were labourers in the cold storage. They have described the occurrence in a very truthful manner. They have also deposed about the motive of the crime. They stated that a day prior to the occurrence some altercation took place between the deceased and the appellant and on account of that altercation Padam Kumar had assaulted Nandu. The report was also promptly lodged. The occurrence took place at 2 a.m. in the night and the report has been lodged at 6.30 a.m.. The distance of the police station was 8 kms. In the F.I.R. it was mentioned that appellant was apprehended by them and the investigating officer when reached at the place of occurrence had arrested the appellant. The eye witness account is fully corroborated by the post mortem report. The weapon of assault was also recovered and serologist report shows that the human blood was found on the axe.
15. The last submission of the counsel for the appellant that it was a case of sudden quarrel and the deceased was assaulted by the appellant at the spur of moment. We do not find any substance in this submission. There is nothing on record to show that the occurrence took place at the spur of moment. The motive of the crime as deposed by the witnesses shows that a day prior to the occurrence there was some altercation and thereafter the appellant had assaulted the deceased with an axe and the post mortem report shows that the deceased had sustained six injuries, which were caused by axe. The injuries were sufficient to cause death in the ordinary course of nature. The Sessions Judge has rightly recorded the finding of conviction and we also fully concur with the same.
16. For the reasons stated above, the appeal is dismissed. The conviction and sentence of the appellant awarded by the trial court is affirmed. The appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
17. Office is directed to send a copy of this order to the court concerned within fifteen days.