J. C. Gupta and Bhanwar Singh, JJ. - (1.) -This appeal is directed against the judgment and order dated 19.1.1980, passed by the then 1st Additional Sessions Judge, Etah, convicting the appellants under Section 302 read with Section 34, I.P.C. and under Section 307 read with Section 34, I.P.C. and each of the appellants has been sentenced to imprisonment for life and five years rigorous imprisonment respectively under the said counts.
(2.) AT the outset, we may state that the appeal of appellant No. 1 Jai Lal stands abated as he has expired during the pendency of appeal. The prosecution case, in brief, is that the houses of Megh Singh and Gopal situate in the eastern side of the village Mirzapur while the house of accused persons situate in the western side of that village. There was an old well near the houses of the accused persons. In April, 1979, some grant was received for construction of a well in village Mirzapur. Megh Singh and Gopal deceased wanted the construction of that well in the vicinity of their houses whereas the accused wanted that well to be constructed in the neighbourhood of their house. It is said that in this connection, on some occasions, harsh words and abuses were exchanged between the accused persons and the complainant party. In May, 1979, the well was constructed near the houses of Megh Singh and Gopal. On account of this, the accused persons started bearing ill-will towards the deceased and his family members and they threatened Gopal and Megh Singh saying that though they had succeeded in getting the well constructed in their neighbourhood but they would not be allowed to take water from the same. On June 24, 1979 at about 11.30 a.m. when Megh Singh, Smt. Angoori and her husband, Gopal, were coming back from their field existing in the west of village, after setting fire to the 'Jawansa' and had reached at the crossing of the houses of Mitthu and Beni, Jia Lal, accused armed with a rifle and Kehari and Shyam armed with guns arrived there from northern side. They challenged Gopal and Megh Singh and ironically said that they will make them drink the water of the well in a better way and they fired three or four shots from their respective firarms, as a consequence of which, both Gopal and Megh Singh sustained firearm injuries. Gopal died an instant death. The incident was also witnesses by Kedari, P. W. 3, Smt. Angoori, P. W. 4 and others. The accused persons after commission of crime ran away with their respective weapons.
(3.) MEGH Singh who had suffered firearm injuries proceeded to Police Station Awagarh and reached there at 1.30 p.m. He dictated an oral report, Ex. Ka-1 which was reduced to writing in the chick register and the case was registered against the nominated accused persons. MEGH Singh was sent for medical examination to Government Hospital, Awagarh where his injuries were medically examined by Dr. O. P. Varshney, P. W. 6 on the same day at 3.00 p.m. and following injuries were found. (1) Gun shot wound 1/4 cm. 1/4 cm. with inverted edges with darkening of the skin, skin deep oozing at time of examination on the upper and front part of right arm, near axilla. (2) Gun shot wound 1/4 cm. 1/4 cm. with blackening of the skin and slight swelling around the wound on the front of chest, 7 cm. medial to the right nipple, slightly above the line. (3) Gun shot wound 1/4 cm. 1/4 cm. skin deep on the front of chest, 3 cm. medial and slightly lower to injury No. (4) Gun shot wound 1/3 cm. 1/3 cm. skin deep with slight swelling on the lower part of left side of chest, 7.5 cm. outer and lower side of chest from injury No. 3. (5) Gun shot wound 1/4 cm. 1/4 cm. skin deep with blackening on outer side of wound on the front of left shoulder with palpable pellet on outer side. (6) Gun shot wound 1/4 cm. 1/4 cm. skin deep with blackening on outside of wound with red swelling 2.5 cm. 1/5 cm. on outer side of wound, wound on the front of left shoulder 2 cm. outer to injury No. 5 pellet palpable. (7) Gun shot wound 1 cm. 1/4 cm. skin deep with irregular black margins on the outer side of upper 1/3 of left arm, wound oozing at time. (8) Gun shot wound 1/4 cm. 1/4 cm. skin deep on the middle of the lateral side of the right side of neck with swelling 1 cm. 1 cm. on outer side of wound. (9) Gun shot wound 1/4 cm. 1/4 cm. entrance round shot on the right upper lip, 1.5 cm. above the angle (right) of mouth with exist on inner side of lip with lacerated wound on the gums in between the 5th and 6th teeth of the upper right side. (10) Gun shot wound 1/4 cm. 1/4 cm. skin deep on the left nostril outer side and near the junction of nostril. (11) Gun shot wound 1/4 cm. 1/4 cm. skin deep with swelling around the wound 3 cm. 2.5 cm. on the front of the forehead on left side, 1.5 cm. above the medial end of the left eyebrow. (12) Gun shot wound 1/4 cm. skin deep on the middle of the left eyebrow with swelling and bluish of the whole upper left eye lid giving appearance of closing of left eye and inner side of eye could not be examined due to mass swelling of eye. Referred to Etah District Hospital for removal of pallet. The duration of injuries was fresh and they were kept under observation. In the x-ray examination of the injured, MEGH Singh, three radio opaque shadows were seen in the area of face as is apparent from the x-ray report, Ex. Ka-6. S. I. Satyapal Singh, P.W. 8 was posted as second officer at police station, Awagarh. He was present at the Police Station when the case was registered. He took up the investigation and recorded the statement of the first informant, Megha Singh, at the Police Station itself. Thereafter, she proceeded to the place of occurrence, held inquest and after preparing necessary papers, sent the dead body of Gopal to mortuary for post-mortem examination. He also recorded the statements of Smt. Angoori, Kedari, Nawab Singh and others and prepared site plan, Ex. Ka-7. He also collected blood stained and plain earth from the scene of occurrence and prepared memo Ex. Ka-11. On completion of investigation, he submitted charge-sheet. Ex. Ka-13 against all the three nominated accused persons. Dr. P. K. Jain, P.W. 5 conducted autopsy on the dead body of deceased, Gopal on 25.6.1979 at 12.15 p.m. and following ante-mortem injuries were found. "1. Firearm wound of entry 2 cm. 2 cm. into through and through on the back of the skull. Margins are inverted and lacerated, blackening present. Direction forward. 2. Firearm wound of Exit 15.12 cm. on the top and front of the skull. Margins are inverted and lacerated. Bones are grossly fractured. Brain matter coming out through the wound. Left eye is also grossly damaged. Injury communicating injury No. (1). 3. Firearm wound of entry 1-1/2 1-1/2 cm. into cavity deep on the upper part of right scapula. Margins are inverted and lacerated. Blackening present. Direction forward and downward. 4. Firearm wound of entry 1-1/2 1 cm. into skin deep on the left palm outer side. Margins are inverted and lacerated. Blackening present." In the opinion of the doctor, the cause of death was coma as a result of ante-mortem injury Nos. 1 and 2. The post-mortem report is Ex. Ka-3.;