JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 26.03.1999 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No. 212 of 1990, whereby accused/appellants namely Jaswant Singh, Diwan Singh and Jarnail Singh have been convicted under section 302 IPC read with section 34 IPC of Indian Penal Code, 1860 (for short I.P.C.), and each one of them has been sentenced to imprisonment for life. During the pendency of this appeal, appellant Diwan Singh has died and his appeal stands abated. 2. Heard learned counsel for the appellants, learned counsel for the State and perused the lower court record. 3. Prosecution story, in brief, is that the complainant Dilip Singh (PW-2) was an accused in a murder case in which one Charan Singh was killed. In said case accused/appellant Jaswant Singh and others were witnesses due to which there was enmity of the complainant with them. One Lakhvinder Kaur niece of the accused/appellant Jaswant Singh got engaged for marriage with Kharak Singh (deceased), brother of the complainant. This marriage was not acceptable to accused/appellant Jaswant Singh, and other accused Latkan Singh, Diwan Singh and Jarnail Singh. Accused-appellant Jarnail Singh was nephew of the accused appellant Jaswant Singh. When Paro Kaur (mother of the Lakhvinder Kaur) and her husband insisted for marriage of their daugther with Kharak Singh, Jaswant Singh and others to prevent the marriage wanted to kill him (Kharak Singh). On 12.06.1989 at about 3.30 p.m. Kharak Singh was passing through the field of one Jakhatar Singh, village Amarpur within the limits of police station, Rudrapur (earlier police station Rudrapur was part of the district Nainital). At that time he (Kharak Singh) was coming with his brother complainant Dilip Singh (PW-2) after having some medicines. Prosecution case is that accused/appellant Jaswant Singh alongwith Latkan Singh and Jarnail Singh (appellant) who were armed with swords, Diwan Singh armed with spear assaulted Kharak Singh with weapons held by them, and when Kharak Singh fell down thereafter Jarnail Singh gave blow with a stone on the head of the deceased. PW-3 Uttam Singh and PW-4 Jogendra Singh who were working in the nearby field also witnessed the incident. PW-3 Uttam Singh and PW-4 Jogendra Singh who were working in the nearby field also witnessed the incident. The first information report (exhibit A-2) was got scribed by one Lakhvinder Pal Singh and lodged at the police station at about 04.40 p.m. The distance between the place of incident and police station was 8 kms. On the basis of the said report, crime No. 403 of 1989 was registered at police station, Rudrapur, relating to the offence punishable under section 302 IPC against accused appellants Jaswant Singh, Latkan Singh, Diwan Singh and Jarnail Singh. The crime was investigated by PW-8 Sub Inspector Chandra Pal Pathak who rushed to the spot, took dead body of Kharak Singh in his possession and prepared inquest report (exhibit A-5) on 12.06.1989 at about 06.15 p.m. Other necessary papers e.g. sketch of dead body (exhibit A-8), Police form no. 13 (exhibit A-7) and letter to Chief Medical Officer (exhibit A-10) were prepared. PW-1 Dr. B.D. Nariyal conducted the postmortem examination on 13.06.1989 at about 01.30 p.m. He recorded as many as five lacerated wounds on the head of the deceased. The Medical Officer opined that cause of death was shock and haemorrhage as a result of head injury in which temporal bones of the head were fractured. The Investigating Officer after inspection of the spot prepared site plan (exhibit A-11), interrogated the witnesses, and took the blood stained soil and simple soil from the spot. After completion of investigation, the Investigating Officer, submitted chargesheet (exhibit A-6) against four accused namely Jaswant Singh, Latkan Singh, Diwan Singh and Jarnail Singh for their trial in respect of offences punishable under section 302 IPC. 4. The Chief Judicial Magistrate, Nainital, on receipt of the chargesheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned IIIrd Additional Sessions Judge, Nainital on 06.02.1991, after hearing the parties, framed the charge of offences punishable under section 302 IPC read with section 34 IPC against three accused namely Jaswant Singh, Diwan Singh and Jarnail Singh to which they pleaded not guilty and claimed to be tried (Accused appellant Latkan Singh died during the trial and his trial stood abated). Thereafter, prosecution got examined PW-1 Dr. Thereafter, prosecution got examined PW-1 Dr. B.D. Nariyal, who conducted postmortem examination, PW-2 Dilip Singh (complainant), PW-3 Uttam Singh (eye witness), PW-4 Jogendra Singh (eye witness), PW-5 Amar Singh in whose presence inquest report was prepared, PW-6 Constable Suresh Chandra Sharma who stated that the dead body was kept in sealed cover till it was sent for postmortem examination, PW-7 Inspector Jasram Singh who concluded the investigation, PW-8 Sub Inspector Chandra Pal Pathak, who initially investigated the crime. 5. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they admitted that they were witnesses in the murder of case of Charan Singh against Dilip Singh (complainant), who was an accused in the said case. However, in respect of the other evidence they stated that same was false. They also pleaded that they have been falsely implicated due to enmity in the present case. However, no evidence in defence was adduced. The trial court after hearing the parties found that accused-appellants Jaswant Singh, Diwan Singh and Jarnail Singh guilty of the charge of the offences punishable under section 302 IPC read with section 34 IPC. After hearing on sentence, each one of the convicts sentenced to imprisonment for life. Aggrieved by the said judgment and order dated 26.03.1999 passed by IIIrd Additional Sessions Judge, Nainital (camp Haldwani) in Sessions trial No. 212 of 1990. This appeal was filed before Allahabad High Court by the convicts on 02.04.1999 where it was admitted on 05.04.1999. The appeal is received by this Court under section 35 of U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000) for its disposal. 6. Before further discussion, we think it just and proper to mention the ante mortem injuries recorded by PW-1 Dr. B.D. Nariyal in the autopsy report (exhibit A-1), after conducting postmortem examination on the dead body of Kharak Singh. The same are being reproduced below from the autopsy report :- 1. Lacerated wound 10 cm x 0.5 cm on the right side of forehead extending to right ear, bone deep, blood present, bone below the injury was found fractured. 2. Lacerated wound 1 cm x 1.5 cm above the left ear lobule, bleeding present. 3. Lacerated wound 2 cm x 1 cm over right maxillary region right maxilla fractured. 4. Lacerated wound 3.5 cm x 1.5 cm over middle line of chin, mandible fractured. 2. Lacerated wound 1 cm x 1.5 cm above the left ear lobule, bleeding present. 3. Lacerated wound 2 cm x 1 cm over right maxillary region right maxilla fractured. 4. Lacerated wound 3.5 cm x 1.5 cm over middle line of chin, mandible fractured. 5. Lacerated wound 5 cm x 1.0 cm above left eye brow covering whole of eye brow and bone deep. On internal examination, both the bones of temporal regions were found fractured, blood clots present within temporal bones, membranes were congested. The Medical Officer opined after the postmortem examination, the cause of death was due to shock and haemorrhage as a result of head injuries suffered by the deceased in which the temporal bones were found fractured. The medical evidence on the record clearly establishes that Kharak Singh had died a homicidal death on 12.06.1989. Now we have to see whether accused/appellants Jaswant Singh and Jarnail Singh committed murder of Kharak Singh with common intention or not. 7. PW-2 Dilip Singh has stated on oath that in the case of murder of Charan Singh, he (complainant) was an accused in which present accused-appellant Jaswant Singh was a witness, due to which, there was enmity between them. PW-2 Dilip Singh further states that Lakhvinder Kaur daughter of cousin of Jaswant Singh got engaged for marriage with Kharak Singh (deceased). This was not acceptable by Jaswant Singh. On the day of incident, according to this witness, he was coming with his brother Kharak Singh from Bhagwanpur towards his village. When the two reached near a river (Dibri), accused-appellants Jaswant Singh, Latkan Singh and Jarnail Singh armed with swords and Diwan Singh armed with spear appeared from the bushes and attacked Kharak Singh. PW-2 Dilip Singh further states that after receiving injury, Kharak Singh fell down, whereafter Jarnail Singh gave blow with a stone on the head of Kharak Singh, who died on the spot. The witness further states that he got scribed report (exhibit A-2) through Lakhvinder Singh. In the cross examination, the witness states that incident took place in the field of one Jagttar Singh. 8. PW-3 Uttam Singh corroborating the statement of PW-2 Dilip Singh (complainant) states that when the accused-appellants Jaswant Singh, Latkan Singh, Diwan Singh and Jarnail Singh attacked Kharak Singh, he was grazing his cattle at some distance. In the cross examination, the witness states that incident took place in the field of one Jagttar Singh. 8. PW-3 Uttam Singh corroborating the statement of PW-2 Dilip Singh (complainant) states that when the accused-appellants Jaswant Singh, Latkan Singh, Diwan Singh and Jarnail Singh attacked Kharak Singh, he was grazing his cattle at some distance. This witness also states that when Kharak Singh fell down, accused-appellant Jarnail Singh picked up a stone and hit on the head of Kharak Singh. 9. Prosecution story is further corroborated by another eye witness Jogender Singh who has also narrated story as stated by witness Uttam Singh (PW-3). 10. Having gone through the statements of three eye witnesses, and after considering the nature of the injuries suffered by the deceased, we are of the view that as against accused Jarnail Singh, the testimony of the eye witnesses is natural and trust worthy. 11. However, as to the role of accused-appellant Jaswant Singh, we are of the view that the witnesses have stated that accused appellant Jaswant Singh was armed with sword and attacked with it but there is no incised wound suffered by the deceased. All the five injuries suffered by him are lacerated wounds. As such, whether Jaswant Singh has actually common intention with other accused to commit murder of Kharak Singh, does not stand proved beyond reasonable doubt. There is no injury of sword on the person of the deceased. Though PW-2 Dilip Singh has stated in his cross examination that from the reverse side of the sword, the deceased was attacked but no specific role has been attributed by accused appellant Jaswant Singh in this regard. Apart from this, there is no mention of assaulting deceased in that manner either in the first information report or in the statement of Investigating Officer. PW-1 Dr. B.D. Nariyal has stated that injuries suffered by deceased could have been caused by an object like a stone. All the injuries were lacerated wounds as already quoted above. 12. For the reasons as discussed above, we are of the view that accused-appellant Jaswant Singh is entitled to the benefit of reasonable doubt and his appeal deserves to be allowed, but the appeal of accused-appellant Jarnail Singh is liable to be dismissed. Accordingly, the appeal of accused-appellant Jaswant Singh is allowed. 12. For the reasons as discussed above, we are of the view that accused-appellant Jaswant Singh is entitled to the benefit of reasonable doubt and his appeal deserves to be allowed, but the appeal of accused-appellant Jarnail Singh is liable to be dismissed. Accordingly, the appeal of accused-appellant Jaswant Singh is allowed. His conviction and sentence recorded by trial court in respect of offence punishable under section 302 read with section 34 IPC is set aside. He is on bail, he need not surrender. However, the appeal of accused-appellant Jarnail Singh is dismissed. The conviction and sentence recorded by IIIrd Additional Sessions Judge, Nainital against Jarnail Singh, in respect of offence punishable under section 302 IPC is affirmed. He is on bail, his bail is cancelled. He shall be made to serve out the remaining part of the sentence awarded to him by the trial court. Lower court record be sent back (During the pendency of this appeal, appellant Diwan Singh has died and his appeal stands abated).