- (1.) THIS appeal is directed against the judgment and order dated 16-7-1980, passed by the then Ses sions Judge, Agra in Sessions Trial No. 91 of 1980 convicting the appellants under Section 302 read with Section 34 of the I. P. C. and under Section 307 read with Section 34 I. P. C. and sentencing each of them to imprisonment for life and 7 years rigorous imprisonment respectively.
(2.) BEFORE coming to the prosecution story, it may be relevant to mention the inter se relationship of the deceased, the accused persons and the prosecution wit nesses. The deceased, Khetrapal, Bhuri Singh, P. W. 1 and Janak Singh, accused are real brothers being sons of Durag Singh. The accused Sarvesh is son of accused Janak Singh, while P. W. 7 Sarjeet Singh is son of Bhuri Singh-P. W. 1. The prosecution case, in brief, is that after the death of Durag Singh, each of his three sons became owner of 30 bighas of land. Khetrapal, deceased was issueless. It is said that earlier, Khetrapal used to reside with Janak Singh accused and the latter used to cultivate the land of the share of Khetrapal also but about a year or 1-1/2 years prior to the incident in question, Khetrapal started living with Bhuri Singh, P. W. 1. The land of Khetrapal Singh, which was earlier being cultivated by Janak Singh, now came into the posses sion of Bhuri Singh. This was to the dislik ing of accused Janak Singh. Khetrapal wanted to execute a Will in favour of Bhuri Singh. On the date of incident, i. e. 16-10-1976 at about 10. 00 a. m. Khetrapal along with Bhuri Singh and Sarjeet Singh were proceeding to Etmadpur tehsil for execu tion of Will and when they reached near the pit, the accused Janak Singh armed with a country-made pistol and accused Sarvesh with a gun, arrived there and en quired from Khetrapal whether he was going to execute a Will in favour of Bhuri Singh and when Khetrapal replied in affirmative, Janak Singh told that they would not allow him to do so. It is said that thereafter both Janak Singh and Sarvesh, accused persons fired upon Khetrapal who fell down on the ground on receiving gun shot injuries. Bhuri Singh and Sarjeet Singh when tried to save Khetrapal, they were also fired upon by the accused per sons and they also sustained fire-arm in juries. When Khetrapal fell down on the ground Sarvesh accused made another fire on Khetrapal from his gun, resulting in Khetrapal's instant death. Bhuri Singh then got the First In formation Report scribed by Ram Singh and lodged the same at police station Etamadpur on the same day at 1. 30 p. m. , the distance of police station being 4 miles from the place of occurrence. On the basis of the written report, chik First Informa tion Report was prepared by the Head Moharrir, Bihari Ji Yadav and the case was registered in the General Diary. The Sta tion Officer, Mahabir Singh lookup inves tigation and interrogated Bhuri Singh and Sarjeet Singh at the police station itself and sent both of them to hospital for medi cal examination with constable Lajja Ram.
(3.) DR. Rajendra Kumar Gupta, P. W. 5 examined the injuries of Sarjeet Singh at 3. 30 p. m. on the same day and found fol lowing injuries: Multiple gun shot wounds of size 1/10" diameter x muscle deep, (blood was oozing from the injuries ). The wounds were situated on right shoulder, right deltoid and right front chest upper and outer part. The wounds were of fire-arm and were kept under observation. The X-ray was advised. Their duration was half day approximately. Injury report of Sarjeet Singh is Ex. Ka-3.;