- (1.) This is an appeal by special leave preferred by the appellants Mahmood and Khaliq. The appellant Mahmood has been convicted for the offence punishable under Section 302 read with Section 149 of IPC and sentenced to imprisonment for life. He has been also convicted under Section 148 of IPC and sentenced to undergo rigorous imprisonment for 1= year. The second appellant has been convicted for the offence punishable under Section 302 read with Section 149 and sentenced to undergo life imprisonment. He has been further convicted under Section 147 of IPC and sentenced to undergo one year rigorous imprisonment and further convicted under Section 379 of IPC and sentenced to undergo rigorous imprisonment for a period of two years.
(2.) Put briefly the prosecution case is as follows : On 19th February, 1977 at about 4.45 p.m. the accused Ram Samujh and Mahmood " appellant No.1 both armed with guns, Khalid " appellant No.2, Bajrang and one unidentified person armed with lathi assaulted deceased Ram Singh at Galiyara near the fields of Ram Sewak Ahir, while he was returning to his village Badipur on his motorcycle. It was alleged that the accused Ram Samujh and Mahmood fired four shots, as a result of which the deceased fell down injured and thereafter Khaliq snatched the licensed revolver belonging to the deceased and all the five fled away from the scene. Ram Singh died on the spot. The incident of murderous attack was witnessed by Jaikirat Singh (P.W.1) who is none other than the son of deceased " Ram Singh, Ram Ratan (P.W.2), resident of village Sujerpur hamlet of Bodipur and Ram Adhar (P.W.3). P.W.1 lodged written First Information Report Ext.Ka.1 on the same day at 4.45 p.m. naming all the accused and the manner in which the murderous attack on the deceased had taken place. Jagdamba Prasad Dwivedi (P.W.7) the office in-charge of Police station, Kothi rushed to the scene of offence at about 6.00 p.m. and found the dead body of Ram Singh and his motorcycle in galiyara near the fields of Ram Sewak Ahir. The broken pieces of the skull of the deceased and broken three teeth were seized from the place of occurrence. The discharged cartridge and tickli were also seized from the spot. P.W.7 after preparing the Inquest Report (Ext. Ka.7) sent the dead body for conducting post- mortem. Dr. R.S. Katiyar P.W.5 performed the autopsy on the dead body on 20th February, 1977 at about 9.45 a.m. and found as many as five ante-mortem gun shot wounds. A cap of cartridge was extricated from the brain of the deceased. Scalp bones were found fractured. It was found that vital organs like peritoneum, liver, kidneys were badly ruptured. In the opinion of the doctor, the cause of death was due to shock and hemorrhage resulting from ante-mortem injuries. The investigation of the case was transferred in the first week of March, 1977 to CBCID. Inspector M.L. Gautam having completed rest of the investigation submitted chargesheet against the appellants and other accused.
(3.) The accused have denied the charges framed against them and took the plea that they have been falsely implicated due to enmity. The accused were accordingly put on trial. The prosecution in order to establish its case in altogether examined 8 witnesses and got marked 39 documents as Exts. Ka.1-39. Amongst the witnesses examined by the prosecution, Jaikirath Singh, Ram Ratan and Ram Adhar (P.Ws. 1,2 and 3) respectively were eye-witnesses to the murderous attack on the deceased. The accused also led evidence and examined Virendra Singh DW 1, Laxmi Narain Sinha DW 2 and Bindra Charan DW 3.;