- (1.) S. K. Agarwal, J. This criminal ap peal has been preferred by five appellants, viz. , Richh Pal, Krishan Pal, Nanak, Chaman and Aman, against the judgment and order dated 20-9-1980 passed by Shri M. H. Khan, Vth Additional Sessions Judge, Muzaffarnagar. In ST No. A-106 of 1980. By the aforesaid judgment and order appellant Nos. 1 and 2 Richh Pal and Krishan Pal were sentenced under Section 148 IPC to undergo RI for a period of two years and each of them were further sentenced under Section 302 IPC to undergo imprisonment for life. The other three appellants Nos. 3 to 5, Nanak, Chaman and Aman, were sentenced under Section 148 IPC to undergo RI for two years and each of them were further sentenced under Sec tion 302 read with Section 149 IPC to undergo imprisonment for life. All the sentences were directed to run concur rently. However, appellant Nos. 3 and 5, Aman and Nanak, have been acquitted by the learned Additional Sessions Judge of the charge under Section 307, IPC.
(2.) OUT of five appellants, Richh Pal and Krishan Pal have died during the pen dency of this appeal. Hence their appeal abates. Now we have to deal with only the appeals of Nanak, Chaman and Aman. All these three appellants are inter se brothers being sons of Babu. Krishan Pal (since deceased) was son of Nanak. Thus, four of the appellants belong Jo one family and Richh Pal is their close relation. All of them are residents of village Biral, P. S. Kandhla, district Muzaffarnagar. The case of the prosecution is that PW-1 Gajraj Singh, who is also resident of village Biral, P. S. Kandhla came to his field along with his brother Yash Pal at about 7. 00 a. m. on 27-11-1979 for sowing of wheat. He placed the bag containing wheat seeds in the middle of his field. Yash Pal yoked the bullocks and placed the bag of wheat seeds on his shoulder. At that very moment Nanak, Aman and Chaman sons of Babu, Krishan Pal son of Nanak and Richh Pal son of Braharn Chand emerged along with three unknown persons, out of their sugarcane field. Richh Pal, Krishan Pal and one of the unknown were armed with guns. Aman, Nanak and another un known were having country made pistols, Chaman was armed with a Tabal, and the last unknown man was armed with a lathi. Nanak exhorted others by saying that they will not get a better chance to kill them. On this Richh Pal and Krishan Pal opened fire from their respective guns upon Yash Pal. Aman and Nanak are said to have opened fire form the country-made pistols upon Gajraj Singh, the informant, but by using better skills and lying down on the ground, the informant managed to avoid those shots. His brother fell on the ground. The informant shouted 'save- save'. The gun shot report and the alarm raised by the informant attracted passers-by including Bhagirath, Jagpal, Jal Singh and Richh Pal to the spot. Seeing these witnesses arriving at the spot the assailants left firing upon his brother. They also used Tabal and lathi and finally withdrew towards east. The wit nesses dared not to chase the assailants for fear of guns. The enmity was going on between Krishan Pal and Nanak on the one hand and the informant side on the other on account of some deal of and. This was the motive behind the murder of his brother. It is alleged that these persons earlier had also assaulted them. They claimed that they had also identified the three unknown persons.
(3.) THE complainant has not sustained any injury in the entire incident. This he claims to the better use of his skills. THE autopsy on the person of the victim Yash Pal was conducted by PW- 2. Dr. Suresh Chand on 28-11-1979 at 1. 15 p. m. THE incident had occurred on 27-11-1979 at 7. 00 a. m. THE report of this incident was lodged on the same day at about 12. 05 p. m. by PW-1 Gajraj Singh at PS. Kandhla. THE written report is marked as Ext. Ka-1. The medical report of Yash Pal Singh shows presence of two lacerated wounds, 1" x 1/4" x bone deep on right side head 3" above right ear and l'l/2" x 1/4" bone deep on left side of head 4" above the left ear two abrasions, two contusions and four gunshot wounds of entries. In the gunshot wounds of entry Nos. 7, 8 and 9 blackening and tattooing were found present, but no tattooing or blackening was found in injury No. 10. One large gunshot metallic piece and 39 small pellets as also two cardboard wadding pieces were recovered from the right plural cavity 24 small metallic shots and 2 cardboard wad- dingpieces were recovered from left plural cavity, 22 small metallic shots and two cardboard wadding pieces were recovered from the muscle of right buttock. They were sealed in a packet and handed over to the constable who had brought the body for post mortem. Fracture on 3rd, 4th and 5th ribs on right side were noted down. Fracture of 5th and 6th ribs on the left side was also noted. 7 oz. of blood clotted as well fluid blood was present in one left side. Both the lungs were found lacerated. Heart was also found lacerated. The aorta was found ruptured. Cavity was found con taining about 6 oz. of clotted blood. Stomach was found empty and small intenstine was found normal. No abnormality was detected therein. Gall bladder was found full. In the opinion of the doctor, the death was due to shock and haemorrhage due to gunshot in juries. The gunshot injuries were attributed very clearly to the two appellants, viz. Richh Pal and Krishan Pal, who are now dead.;