Eyewitness testimony from relatives can be credible; common intention can be established from the conduct surrounding the crime, not requiring elaborate prior planning.

JUDGMENT :

Ms. Nand Prabha Shukla, J.

1. Heard Sri Suresh Dhar Dwivedi, learned Counsel for the surviving Appellant No. 4, Sabir Ali, Sri Rahul Asthana, learned Additional Government Advocate for the State and perused the records.

2. This Criminal Appeal has been filed against the Judgement and Order dated 15.02.1984 passed by the Vth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 140 of 1983 (State vs. Sabir and Others) and Sessions Trial No. 141 of 1983 (State vs. Khanne and Others) convicting the appellants under Section 302 /34 IPC and sentencing each of them for life imprisonment.

3. The Criminal Appeal against Appellant No.1, Khanne, Appellant No.2, Shamsher and Appellant No.3, Room Singh has been abated on 19.07.2018 due to their death.

4. The present Criminal Appeal has been argued only on behalf of surviving Appellant No.4, Sabir Ali.

INTRODUCTORY FACTS

5. The prosecution case, in brief, is as follows:

The first informant, Rajaram lodged an F.I.R. dated 04.12.1982 at 9.15 P.M. against Room Singh, Sabir, Shamsher and Khanne alleging that on 04.12.1982 at around 7.00 P.M., his brother Ratiram, aged about 18 years, had gone to take a round of his paddy crop field situate at Village Walipur, P.S. Kanth, District Shahjahanpur whereby due to previous enmity the accused caught hold and strangulated his brother Ratiram and done him to death. Ompal, Haripal and Natthu witnessed the incident.

6. The scribe of the FIR was Attar Singh, son of Rameshwar Singh, Police Station Paraur, District Shahjahanpur.

7. The FIR was registered as Case Crime No. 239 of 1982 under Section 302 IPC, Police Station Kanth, District Shahjahanpur.

8. The police proceeded to the spot. The inquest proceeding was started on the very same day and completed on the next day i.e 05.02.1982 at 7.00 A.M. According to the inquest report, the death occurred due to strangulation.

9. The dead body of Ratiram was sent for post mortem examination on 05.12.1982. According to the opinion of the Doctor, the cause of death was due to asphyxia as a result of anti mortem strangulation.

10. On 08.12.1982, two separate Recovery Memo were prepared. One torch having two cells was recovered from Deen Mohammad and another having three cells was recovered from Harpal.

11. The investigation was entrusted to S.I Narottam Singh Chauhan who went to the place of occurrence, recorded the statement of the witnesses and prepared the site plan. The investigation was further conducted by Inspector Prem Chand Pathak and after the completion of investigation the charge sheet was submitted on 31.12.1982 against Sabir under Section 302 IPC and rest accused were charge sheeted on 05.02.1983. Shamsher was proceeded under Section 82 /83 Cr.P.C.

12. The cognizance was taken on 15.01.1983.

13. After committal proceedings, on 31.3.1983, the learned VIth Additional Sessions Judge, Shahjahanpur framed the charges against all the four accused under section 302 IPC read with section 34 IPC.

14. It would be relevant to mention that as two separate charge sheets were submitted, therefore, two separate Sessions Trial were proceeded, namely, 140 of 1983 and 141 of 1983 against all the four appellants and were consolidated and heard together. The trial commenced and in both the trials, a common set of evidence was led by the prosecution and the defence.

15. The accused pleaded not guilty and claimed for the trial.

PROSECUTION EVIDENCE

16. The prosecution examined as many as eight witnesses and proved the Ex. Ka-1 to Ex. Ka-20 and Ex. Kha-1 to 4 and Material Exhibits 1 to 3 which are di