IMPORTANT POINT
Where a witness, brother-in-law of deceased, claimed to be a witness of incident of murder but his statement was recorded by police after more than a month without any explanation for delay, such evidence was unbelievable.

JUDGMENT

Servesh Kumar Gupta, J.—The State has assailed the judgment of acquittal dated 28.7.2010 rendered by the Sessions Judge, Pithoragarh in Sessions Trial No.4 of 2010, State v. Dharam Ram & three others. Accused, Dharam Ram (A1), Darpan Ram (A2), Fakir Ram (A3) and Pushkar Ram (A4), were tried for the offence of Sections 302/34 IPC pertaining to crime no.08/2009 at Tehsil Munsyari, District Pithoragarh, and the trial culminated into their acquittal. So, the State has come up before us.

2. Having heard the learned State Counsel for the appellant as well as learned Seni or Counsel on behalf of the accused persons, it transpires that all these accused are scheduled caste persons while the deceased Kunwar Singh was of Rajput community of village Lodh. Election of Pradhanship in village Lodh, conducted in the year 2008, allegedly became the root cause of the said incident which occurred in the evening of 10.10.2009 at 8:30 PM, when Kunwar Singh, who won the election against the accused A3, became the prey, inasmuch as, lo st his life at the hands of A3 and his associates. As per the story revealed in the first information report, which could be lodged with a delay of almost a fortnight on 24.10.2009 at 2 PM, deceased Kunwar Singh left his house on 8.10.2 009 to Munsyari for some official work in the capacity of Pradhan. On 9.10.2009, he performed his work in village Nachani and he was scheduled to return his home up to the evening of 10.10.2009. When he was returning home as per the above schedule, there was a Gharat (a kind of flourmill prevalent in the hills being run by the kinetic energy of flowing water) on the way of his village owned by one Ram Singh S/o Bahadur Ram. Deceased asked for a matchstick from Ram Singh because the passage ahead was quite dark. Taking such matchstick, he resumed his journey to the village. After sometime, A1 and A4 also came at the Gharat and asked for a torch from Ram Singh and after taking the same, they also proceeded on the same way. This was the basis of apprehension about the participation of accused persons in the incident. Report (Ex.Ka-5) lodged by Digar Singh (PW8), the real brother of deceased, has also disclosed that eversince the election was over, accused persons were threatening to kill his brother Kunwar Singh within a year, nonetheless, the FIR was lodged un-named. Chick report wherefor is Ex.Ka-12.

3. Body of deceased was recovered in the morning of 11.10.2009 at the outskirts of village Lodh in flowing water beneath the bridge. A number of passersby of the surrounding village and the people of village Lodh itself had assembled. Naib Tehsildar of the area was called and the inquest report (Ex.Ka-7) was prepared on 12.10.2009 at 10 AM in District Hospital, Pithoragarh. Since the body had submerged in river from dorsal side and the cause of death could not be known, so all the witnesses of inquest expressed their opinion for post-mortem. Autopsy (Ex.Ka.1) was conducted in the mortuary of District Hospital, Pithoragarh itself and as per the report of PW3 Dr. K.S. Mehta, who conducted the post-mortem, the following injuries were found on the body of deceased: -

A.“Lacerated wound over right lower eyelid horizontal 1.0 cm x 0.5 cm, clotted blood present over forehead and bridge of nose.

B.Contusion upper lip interior aspect over incisor teeth, bluish black 1.5 cm 1 cm.

C.Abrasion right thumb 1 cm x 0.5 cm, brownish black.

D.Abrasion over right wrist back of thumb 1.0 cm x 0.5 cm, brown black in colour.

E.Abrasions multiple over left knee and foot.

F.Contusion over lower part of neck 12 cm x 4 cm wide over back and right to midline up to 3 cm in size, tampering in one over left side of neck. Skin colour brown black.

G.Contusion over upper part of lower back, size 7 x 6 cm, colour of skin brown black.”

4. As per the opinion of the doctor, death had occurred 1½ day back and the cause of death was asphyxia as a result of throttling. So, the time of death almost comes what has been di