JUDGMENT Per : Hon’ble Servesh Kumar Gupta, J. By way of this appeal, the appellants have assailed the judgment and order of their conviction dated 3.5.2010, rendered by the learned Sessions Judge, Pauri Garhwal in Sessions Trial No. 49/2008. Learned Sessions Judge tried the brothers duo, namely, Ganga Singh and Ganesh Singh (for brevity, hereinafter referred to as ‘A1’ and ‘A2’ respectively) and convicted them for the offences under Section 302/34, 323/34 IPC, in Crime No. 1/2008, Patti Gagwarsue-1, PS Pauri Garhwal. Both A1 and A2 have been directed to undergo imprisonment for life and to pay a fine of Rs. 50,000/- each for the offence of Section 302/34 IPC. They have also been punished with six months’ rigorous imprisonment for the offence of Section 323/34 IPC. Learned Sessions Judge has further directed that out of the amount of fine, Rs. 50,000/- shall be paid to the PW2 Smt. Sushila Devi, the wife of deceased, as compensation. 2. Prosecution story, in brief, is that Gajendra Singh Rawat, son of the deceased Mahipal Singh Rawat, lodged an FIR with the Patwari concerned on 19.8.2008 at 8 AM (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification No. 494/VIII-418-16 dated 7/3/1916). The complainant averred in the said FIR that on 18.8.2008, at 9 O’clock in the morning, his father Mahipal Singh Rawat had gone to his field for cattle grazing. His mother Smt. Sushila Devi had also gone to collect the grass. While cutting the grass, his mother saw that A1 and A2, who were near the P.N.T. Colony, hurled abuses on his father and also pelted stones on him from a height. They also came to kill his father. On this, his mother fled away from there in order to save herself. However, A1 and A2 chased his father while pelting stones on him and drove him towards the jungle. Being frightened, his mother came back to the house, but his father did not come. Subsequently, with the help of the villagers, he made massive hunt to search his father in the jungle, where his father was found dead as he had succumbed to his injuries. The complainant also averred that case against A1 and A2 regarding land dispute was going on in the Court. This FIR is Ex. Subsequently, with the help of the villagers, he made massive hunt to search his father in the jungle, where his father was found dead as he had succumbed to his injuries. The complainant also averred that case against A1 and A2 regarding land dispute was going on in the Court. This FIR is Ex. Ka-1, on the basis of which Chick FIR Ex. Ka-5 was prepared. 3. Subsequent to lodging of the aforesaid FIR, criminal justice machinery came into action. Inquest report Ex. Ka-7 was prepared on 19.8.2008 itself. Panches of the inquest opined that the deceased died on account of ante mortem injuries. Thereafter the dead body was sent for post-mortem examination, which was conducted by PW4 Dr. Upendra Agarwal on 19.8.2008 at 2 PM. During the course of post-mortem examination, he also prepared the autopsy report Ex. Ka-4. Investigation ended in submission of chargesheet Ex. Ka-15 against A1 and A2. 4. On 22.12.2008, learned Sessions Judge levelled the charges against the accused persons for the offences under Section 302/34, 323/34 and 201 IPC. Accused persons denied the charges and claimed trial. 5. Prosecution, in order to prove its case, examined as many as seven witnesses. PW1 Gajendra Singh Rawat is the complainant, PW2 Smt. Sushila Devi, wife of the deceased, is an eyewitness of the incident, PW3 is Dr. S.K. Jain, who medically examined Smt. Sushila Devi, PW4 is Dr. Upendra Agarwal, who conducted the autopsy, PW5 Nagendra Singh Rawat is the witness of recovery of slippers of the deceased from the place of occurrence, PW6 is Patwari Anand Mani Khanduri and PW7 Bachan Singh Rana is the Investigation Officer of the case. 6. Thereafter statements of the accused persons were recorded under Section 313 CrPC. Both A1 and A2 denied the occurrence and stated that they have been falsely implicated due to animosity with the complainant on account of land dispute. A1 stated that on the date of incident, he was present on his Government duty, while A2 has said that on the said date, he was in his shop situated in Pauri town. In defence, accused persons also got examined DW1 Smt. Ramchandri Devi and DW2 Thakur Singh. 4 7. Learned Sessions Judge, on completion of the trial, found the charges proved against the accused, as aforementioned. In defence, accused persons also got examined DW1 Smt. Ramchandri Devi and DW2 Thakur Singh. 4 7. Learned Sessions Judge, on completion of the trial, found the charges proved against the accused, as aforementioned. However, no finding has been given by the learned Sessions Judge on the charge of offence under Section 201 IPC. However, for want of Government Appeal, we are unable to touch on this aspect of the matter. 8. We have heard learned Sr. Counsel for the appellants and learned Deputy Advocate General, and have also meticulously re-appreciated the evidence available on record. 9. Before any further discussion, we think it just and proper to reproduce the injuries found on the dead body of the deceased during the course of autopsy, which were recorded in the post-mortem report Ex. Ka-4. The same are reproduced below: (1) Lacerated wound present on left side of forehead, 3 cm above lateral end of left eyebrow, oblique, 3 cm x 1 cm x bone deep, edges and margins irregular and swollen. (2) Lacerated wound on anterior part of left side of skull, oblique, 12 cm above mid part of right eyebrow, 7 cm x 1 cm x bone deep, edges and margins are irregular and swollen. (3) Contusion on posterior part of top of skull, size 5 cm x 3 cm, reddish in colour, on dissection of scalp hematoma present in injury no. (3) in an area of 8 cm x 5 cm, on opening skull margins are congested. There is sub qraehnew hemorrhage on outer surface of both cerebral hemisphere. Brain congested. (4) Lacerated wound on lateral aspect of 1st phalanx of right great toe of size 3 cm x bone deep, edges and margin irregular and swollen. (5) Multiple abraded contusions on mid part of anterior aspect of right leg in an area of 12 cm. Reddish in colour. (6) Multiple abrasion on upper part left side of back of chest in an area of 15 cm x 10 cm. Reddish scab present. (7) Contusion on left side of temporal region of size 6 cm x 4 cm, reddish in colour. In the opinion of the doctor, the cause of death was coma due to ante mortem head injury no. (1), (2) and (3) caused by blow of hard and blunt object. The above injury report has been proved by PW4 Dr. Upendra Agarwal, who had conducted the autopsy. In the opinion of the doctor, the cause of death was coma due to ante mortem head injury no. (1), (2) and (3) caused by blow of hard and blunt object. The above injury report has been proved by PW4 Dr. Upendra Agarwal, who had conducted the autopsy. 10. Another witness PW3 Dr. SK Jain had examined Smt. Sushila Devi on 21.8.2008 at 5.20 PM in the District Hospital, Pauri Garhwal and he reported following injury, on the person of injured Sushila Devi, in his medical report Ex. Ka-3. (1) There is abrasion on left side of face, 2.5 cm below left eye with surrounding cellulite. Abrasion is reddish brown in colour. (2) Tendon with cellulite present on forehead, 3 cm above left eyebrow. (3) Tendon present on scalp. (4) Linear scratch mark present on left foot on dorsum aspect of bone of ankle joint, brownish black in colour. The above medical examination report has been duly proved by Dr. S.K. Jain (PW3). 11. In the ocular evidence, PW2 Smt. Sushila Devi is the star witness of the prosecution. She is wife of the deceased. She was present on the place of occurrence and had seen the occurrence. Accused persons were well known to her as the litigation regarding land was persisting between her husband and the accused persons. She has proved that on 18.8.2008, she accompanied her husband (deceased) to the jungle. Her husband was busy in grazing three sheep, while she was busy in cutting the grass in the nearby area. The accused persons were hiding themselves behind the wall. They started pelting stones from the top on the deceased and on her as well. They were also threatening to both of them i.e. Smt. Sushila Devi and her husband. This witness has stated that her husband suffered injuries in stone pelting. He fell down. She has further stated that she and her husband made the noise “Bachao, Bachao”, nonetheless no one paid any heed to it though many people were present on the roofs of houses of P & T Colony. She further saw that when her husband had fallen down on the earth due to injuries suffered by him, both accused persons came closer to him and sat on his chest. They again started to beat him. When she shouted, A1 pelted stones towards her. She further saw that when her husband had fallen down on the earth due to injuries suffered by him, both accused persons came closer to him and sat on his chest. They again started to beat him. When she shouted, A1 pelted stones towards her. One stone hit her eye, while another stone hit her feet making her injured too. Both the accused were threatening to kill her also. So, she escaped from the spot in order to save her life. Although she was chased by the accused persons, but she successfully escaped from the spot and hid herself behind the bushes, where she remained for 2-3 hours. 12. PW2 has stated that at the time of incident, no one was present in her house. Her son had gone to drop her daughter in the matrimonial house. After 2-3 hours, she came out from the bushes and somehow she reached in the Pauri town, from where she could manage to give the ring call to her son. By that time, it was full noon. She asked her son to immediately return to the house. Thereafter she went to the police station and told the police that the accused persons had killed her husband. She asked there for the police assistance, but no help was rendered to her. Police did not lodge her report. Rather, she was scolded as to why she had come alone there and she was sent back asking her to come along with the villagers. Being helpless, she returned to her house. By that time, her son had returned. She told her son that accused persons had killed his father. Thereafter she, her son and many villagers went at spot in the jungle, but dead body of her husband was not there. At that time, it was stark dark. Then massive hunt was made to trace out the dead body, which was recovered with great difficulty in the night of 18.8.2008. The dead body was lying on “Kachhi Jameen” (plain earth) at a distance of half a kilometre from the place of occurrence. Thereafter police was telephonically informed. Police came at the spot and took the dead body in its possession. This witness was subjected to very lengthy cross-examination by the defence Counsel. However, she could not be shaken. Nothing could be elicited from this witness in her cross-examination, which may create any doubt on her deposition. Thereafter police was telephonically informed. Police came at the spot and took the dead body in its possession. This witness was subjected to very lengthy cross-examination by the defence Counsel. However, she could not be shaken. Nothing could be elicited from this witness in her cross-examination, which may create any doubt on her deposition. Her testimony is reliable and inspires the confidence. 13. PW1 Ganjendra Singh Rawat, the complainant, has proved the FIR Ex. Ka-1. He has also stated that a dispute on the issue of land was going on with the accused persons. He has further stated that on the date of incident, he was not in his house. Her mother gave him information of the incident on the telephone. Then he returned to his house on the same day evening. Thereafter he searched for the dead body of his father, which was found in the night of same day in the jungle. He saw mark of injuries on the dead body. Then he contacted the police on the telephone and lodged the report on the next day i.e. on 19.8.2008. Thus this witness has corroborated the prosecution version. Nothing material has come out in his cross-examination to disbelieve his testimony. 14. Testimony of rest of the witnesses is formal in nature. PW5 Nagendra Singh Rawat is the witness of recovery of slippers, belonging to the deceased, from the place of occurrence. PW6 is Patwari Anand Mani Khanduri, who prepared the chick report Ex. Ka-5 on the basis of the FIR lodged by the complainant (PW1) and made necessary entries in the G.D. He also inspected the place of occurrence and prepared the site plan Ex. Ka-8, the inquest report Ex. Ka-7 and sent the dead body for the post-mortem. Thereafter the investigation of this case was transferred to regular police on the application of PW2 Smt. Sushila Devi. PW7 Bachan Singh Rana is the subsequent Investigation Officer of the case, who submitted the chargesheet Ex. Ka-15 against the accused persons. 15. Having re-appreciated the evidence on record, we are of the definite opinion that the prosecution has successfully proved its case against the accused before the trial court. From the evidence on record, it is established beyond any shadow of doubt that A1 and A2, with common intention to kill, committed murder of Mahipal Singh Rawat on 18.8.2008. 16. Learned Sr. Having re-appreciated the evidence on record, we are of the definite opinion that the prosecution has successfully proved its case against the accused before the trial court. From the evidence on record, it is established beyond any shadow of doubt that A1 and A2, with common intention to kill, committed murder of Mahipal Singh Rawat on 18.8.2008. 16. Learned Sr. Counsel for the appellants has tried to argue that the deceased Mahipal died on account of accidental slip from the hill and that he suffered the injuries as he fell down from a height and died ultimately. She has further submitted that her argument is strengthened by nature of injuries, which were on only one side of the head of the deceased. We are not impressed with this argument because when the villagers were making the massive hunt in the jungle, the dead body was not found lying in any gorge, rather it was on “Kachhi Jameen”. Even if the argument of learned Sr. Counsel were accepted for a moment, then the dead body of the deceased would have been found in a deep gorge, not on a plain “Kachhi Jameen”. Moreover, the nature of injuries indicates that the deceased was mercilessly beaten by the stones. Had the deceased fallen down from a height, then the injuries would have been on the other parts of his body too, but it is not so. Thus, our view, about the truthfulness of the statement of eyewitness PW2 Smt. Sushila Devi, stands fortified. 10 17. Learned Sr. Counsel for the appellants further argued that Smt. Sushila Devi could be medically examined on 21.8.2008 and she did not offer herself for medical examination prior to the said date. This argument has also no substance for the reason that when she was asked in his testimony on this score, she has replied that she was more concerned for her husband and the police action against the accused persons. The same also appears to be the natural course of action for a rural woman, as she herself was frightened, her husband was mercilessly beaten, nothing was known about his fate and, moreover, no one was present in her house. So, in such a sorry state of affairs, she was not supposed to rush up for her medical examination of the simple injuries. So, in such a sorry state of affairs, she was not supposed to rush up for her medical examination of the simple injuries. She had not suffered any vital injury, as is clear from her medical examination report Ex. Ka-3. 18. As regards the argument of learned Sr. Counsel on the delay in lodging the FIR, the same has also been fully explained because Smt. Sushila Devi strived to lodge the FIR in the noon of 18.8.2008 and she also sought police action against the accused, but she was sent back by the police without any action and was asked to come along with villagers. By that time, it was evening. Her son could return to the house in the evening time. Thereafter a massive hunt was made to find out the deceased, but his dead body could be recovered late in the night from the jungle. Police was immediately informed on the telephone. Police also came on the spot on the same night, and on the next day i.e. on 19.8.2008, the report was lodged at 8 O’clock in the morning. Thus, the delay in lodging the FIR has sufficiently been explained. 19. On the other hand, the accused persons could not give any explanation on their plea of alibi made in their statements under Section 313 CrPC. The evidence of DW1 Smt. Ramchandri Devi that she heard the people saying regarding falling down of deceased Mahipal Singh from the rock is undisputedly hearsay evidence. She is not an eyewitness of the alleged incident. So, her statement is not acceptable. DW2 Thakur Singh is also not an eyewitness of the incident. He came to know about the death of Mahipal Singh on the second day. In this way, his evidence is also of no avail to the defence. 20. So, in view of our above discussion of medical and ocular evidence, adduced by the parties before the trial court, it is conclusively proved that A1 and A2, in furtherance of their common intention, committed murder of Mahipal Singh on 18.8.2008. As such, we find no merit in this appeal and there is no reason to interfere with the impugned judgment and order dated 3.5.2010 passed by the Sessions Judge, Pauri Garhwal. 21. None of the appellants were granted regular bail by this Court. Their period of parole, granted by this Court, ended on 24.5.2013. As such, we find no merit in this appeal and there is no reason to interfere with the impugned judgment and order dated 3.5.2010 passed by the Sessions Judge, Pauri Garhwal. 21. None of the appellants were granted regular bail by this Court. Their period of parole, granted by this Court, ended on 24.5.2013. As such, they would have surrendered themselves on 24th May, 2013. They shall serve out their remaining period of sentence. Let a copy of this judgment and order, along with the trial court record, be sent to the court below for compliance.