MISRA - (1.) THE appellants have preferred the present appeal against the judgment dated 18/12/1997 of the M.P. High Court (Gwalior Bench) convicting them under Section 302 read with Section 34, Indian Penal Code However, conviction and sentence of the accused Mohan Singh under Section 25/27 of the Arms Act by the trial Court was set aside. Earlier the trial Court convicted Mohan Singh (appellant No. 2) under Section 302, Indian Penal Code and under Section 25/27 of the Arms Act and sentenced him to imprisonment for life and one year rigorous imprisonment, respectively and convicted and sentenced Ajay Singh, appellant No. 1, and Kailash, appellant No. 2, under Section 302/34, Indian Penal Code to the imprisonment for life. However, since Ajay Singh died during the pendency of the appeal his appeal stood abated.
(2.) ADMITTEDLY both the complainant and the accused persons are close relatives, as the deceased Bhagat Singh was the son of the complainant, Ram Singh (PW-1), who is the real brother of the aforesaid accused Ajay Singh. Both the present appellants, namely, Mohan Singh and Kailash are the sons of Ajay Singh. In short, the prosecution case is that on 26/04/1980 at about 9 a.m. accused Mohan Singh had beaten Moti Chamar to which Veer Singh son of Ram Singh objected and had enquired as to why he had beaten Moti Chamar. Thereafter Mohan Singh stood up to beat him also. On the same evening at about 4 p.m. accused Ajay Singh, Kailash Singh and one Daulat Singh went to Gajar on the motor cycle and beat the mother of Veer Singh, his brother Gajendra and his sister Meena. Ajay Singh and Daulat Singh were standing there and were exhorting to kill. Ajay Singh had a pistol. On seeing these they went out of the Dalan. Veer Singh's mother and Gajendra Singh received injuries, Meena was slapped by Kailash. Veer Singh thereafter asked Kalua to sleep at the door and took his mother, brother and sister on tractor to Vidisha. He disclosed this fact to Bhagat Singh who thereafter went to call his father Ram Singh from bazar. Subsequently, Bhagat Singh and Ram Singh took meal and went to Gajar on the motor cycle. They reached there at 10 p.m. On hearing the noise of the motor cycle the accused Mohan Singh, Ajay Singh and Kailash came out of their house and went to the first floor. Kalua was sleeping in Dalan who also came out. Bhagat Singh on seeing the accused persons asked them as to why they were harassing him and beaten their Hali and mother. Being aggravated, all the three accused persons went to the second floor and from there to the roof of the third floor. It is alleged thereafter Mohan Singh fired from his gun on Bhagat Singh thrice as a result of which he died on the spot. Thereafter Ram Singh, who was present there, went to the chowkidar Bihari and told him the occurrence. Subsequently, Bihari went to the spot and saw the body. He proceeded thereafter to the Police Station and lodged a report in the evening of 27/04/1980 at about 7 a.m. The report was prepared by Ajit Kumar Patil, PW 11, who was then the Station-in-Charge, Vidisha, who in turn proceeded to the place of occurrence in village Gajar. He prepared panchanama of the dead body and took into custody the pellets found near the dead body. Sample of blood-stained earth from there was also taken by him. He also prepared the site plan Ex. P. 2. All the three accused were arrested on the same day. During investigation Mohan Singh disclosed about the .12 bore gun which he had kept inside his Kotha, one empty cartridge near the gun and also two empty cartridges (Memo Ex. P-6). Mohan Singh took him to his house and got recovered this .12 bore double barrel gun made in Czechoslovakia Empty cartridge of .12 bore gun and two .12 bore empty cartridges were also got recovered from the drain. The recovered gun is article No. 2. The accused persons denied the charges. They said that they have been falsely implicated on account of enmity as Ram Singh and Veer Singh wanted to take their property.
(3.) IT is also not in dispute that accused persons as well as the complainant lived in the same house, but separately. Further, a year before the incident there had been partition between the brothers including Ram Singh-complainant and accused-Ajay Singh, relating to their ancestral land. The following pedigree would reveal the relationship inter se between the accused and the complainant family which in turn will also reveal the motive of commission of the crime: JUDGEMENT_428_2_1999Image1.jpg The prosecution case is that the aforesaid Shambhoo Singh had died leaving his widow Sarju Bai, who had adopted Prahlad Singh s/o Ram Singh, the complainant. Similarly, Veer Singh, PW 10, another son of the complainant was also adopted by another brother Pratap Singh. The aforesaid six brothers inter se had about 1400-1450 bighas of land for which the aforesaid partition took place. The complainant alleged that the accused Ajay Singh had given 250 bighas of land to him and kept with him the rest of the land though he was only entitled for 700 bighas of land as Sarju Bai had adopted his son and she was living with him. In order to prove the motive of commission of the crime the prosecution relied on the statement of Veer Singh, PW-10, who stated that he was taken in adoption by Pratap Singh. On the day of the incident at 9 a.m. his servant Moti Chamar was beaten by Mohan Singh accused and was turned out. When he went to Mohan Singh and enquired from him as to why he had beaten Moti Chamar, he stood up even to beat him. He further deposed that he heard the cries of his mother, Kala Bai, his brother Gajendra and sister Meena. On the same evening at about 4 p.m. when accused Ajay Singh, Kailash and Daulat Singh came on the motor cycle, he actually saw the accused-Kailash, who was beating his mother, when Ajay Singh and Daulat Singh at that time were exhorting him to beat. Thereafter they went out. This background clearly expresses the grouse subsisting because of the partition inter se between the complainant and the accused, leaving them in tension in words and a action. The day's incident at 9 a.m. and 4 p.m. clearly expresses the outrage of the accused party. The prosecution case is when Ram Singh (P.W.1), and deceased- Bhagat Singh reached below the house of the accused and complained about their behaviour, as aforesaid, further aggravated the tenseness, this background led to commission of the crime on the same day resulting into firing by Mohan Singh accused resulting into the death of Bhagat Singh.;