JUDGMENT :

Rajan Roy, J.

Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kaushlendra Tewari and Sri Kapil Mishra, Advocate for appellant and Sri Umesh Verma, learned A.G.A. for the State.

2. Both these appeals have been filed under Section 374(2) Cr.P.C. challenging the common judgment and order dated 20.02.2010 passed by Special Judge SC/ST Act, Lucknow in Session Trial No. 387 of 2003 (Case Crime No. 340 of 2002) and Sessions Trial No. 388 of 2003 (Case Crime No. 351 of 2002).

3. The appellant of Appeal No. 509 of 2010, Phool Chandra Yadav has been convicted under Sections 302, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act and in Sessions Trial No. 387 of 2003 he has been convicted under Section 4/25 of Arms Act in Sessions Trial No. 388 of 2003.

4. Appellant of Appeal No. 625 of 2010, Vidya has been convicted only under Section 302, 504, 506 I.P.C. and Section 3(2)(v) SC/ST Act in Sessions Trial No. 387 of 2003.

5. As per the prosecution story, at 7.00 a.m. on 25.11.2002 when the deceased Ram Bali Raidas left his house for going to work to Khairabad by railways from Railway Station, Aisbhagh, as soon as, he reached a distance of 30-35 meters from his house, Phool Chandra Yadav along with his friend Vidya, who resides in the colony, came out from the Loco compound with the damaged boundary carrying a ‘big knife’ and ‘Banka’. They caught hold of deceased, pressed his month and took to him towards the boundary. As soon as PW-1 saw this, he raised an alarm, whereupon, on hearing his shouts, Smt. Shivani Ghosh, who resided in the same Loco Colony and the uncle of the informant namely Santosh Kumar, on seeing this, started to run towards the accused with the informant, when, the two accused threw the deceased to the ground and cut his throat with their knife and ‘Banka’. On account of being threatened by the accused none could approach the deceased. When several residents of the colony gathered, they rushed to save the deceased, but, the accused ran away with their weapon, hurling abuses and threatening to kill them. Half the throat of deceased had been cut and he lay dead on the spot.

6. FIR No. 298 of 2002 (Case Crime No. 304 of 2002) was lodged at 10.45 a.m. on 25.11.2002 at Police Station-Alambagh, which is at about one and half kilometers distance from the scene of crime. The F.I.R. was lodged by son of the deceased namely Ashwani Kumar who is PW-1.

7. On 05.12.2002 Phool Chandra Yadav’s statement was recorded in jail with permission of the Court. On 11.12.2002 Phool Chandra Yadav was taken on remand for recovering the weapon used in commission of the crime. After remand, on his pointing, it is said that a knife was recovered from a semi constructed house inside the Loco compound with the broken boundary wall, which is said to have been used for committing the crime. Consequently, another F.I.R. bearing No. 306 of 2002 (case crime No. 351 of 2002) was registered under Section 4/25 of the Arms Act against Phool Chandra Yadav.

8. Inquest report pertaining to Case Crime No. 340 of 2002 Exhibit Ka-3 was prepared on 25.11.2002 itself. The inquest started at 11.40 a.m. and ended at 01.40 p.m.

9. Site Plan relating to commission of the offence on 25.11.2002 is Exhibit Ka-9.

10. The postmortem was conducted by PW-8 Dr. Shashi Bhushan Prasad and the report is marked as Exhibit Ka-8. According to the postmortem report the deceased had 9 injuries on his body, 8 of which were incise wounds and one was abraded contusion. The Antimortem Injuries were as under :-

“(1) Incised wound 3cm x 1cm x muscle deep. Present on Lt side face. 2Cm below Let. Nostrill.

(2) Incised woulnd 2.5cm x 1cm Present on Rt side Face just Below the Rt angle of the mouth.

(3) Incised wound 3cm x 1cm x Muscle deep Present on Rt. Side cheek. 2Cm below Injury No. (2).

(4) Incised wound 15cm x 10cm x vertegrae deep present on Both side Neck 3cm above. Supra