U. S. Tripathi, J. - (1.) -Appellant Vishwa Nath has preferred this appeal against the judgment and order dated 30.1.1981 passed by Ist Additional Sessions Judge, Mainpuri, in Sessions Trial No. 178 of 1980, convicting the appellant under Sections 302 and 307, I.P.C. and sentencing him to undergo life imprisonment under Section 302, I.P.C. and R.I. for a period of 7 years under Section 307, I.P.C. Both the sentences were ordered to run concurrently.
(2.) THE prosecution story, briefly stated, was that appellant Vishwa Nath is the real brother of Vijai Bahadur (since acquitted by the trial court) and son of Machley (since acquitted by the trial court) and resident of village Pundari, P. S. Ailau, district Mainpuri. Suresh Chandra (P.W. 4) is real brother of Ramesh (P.W. 5) and Jagdish (P.W. 6). THEy are real nephews of Machley and cousin brothers of appellant Vishwa Nath. Smt. Maharani deceased was mother of Suresh Chandra (P.W. 4), Ramesh (P.W. 5) and Jagdish (P.W. 6). THE house of Vishwa Nath appellant was situate towards north of house and shop of Ahsan Khan ((P.W. 10). Suresh Chandra (P.W. 4) had his house towards west of house of Machley. In between the two houses, there was open land and a 'chabutara'. Ahsan Khan (P.W. 10) was running a grocery shop in front portion of his house. On the night of 26.12.1979 at about 8.30 p.m., Suresh Chandra (P.W. 4) had gone to the shop of Ahsan Khan (P.W. 10). He was sitting on the shop and a lighted lantern was emitting light. It was a moon lit night. Machley also came to the shop of Ahsan Khan (P.W. 10) and observed Suresh Chandra (P.W. 4) there. He asked him as to why he had not sown crop in the field of Ram Swarup, which he had taken on 'batai' as Ram Swarup was complaining against him. Suresh Chandra (P.W. 4) told that he (Machley) had no concern with the matter. On it, Machley became annoyed and told that the land in front of his house belonged to him (Machley) and he would take it. Altercation took place between Machley and Suresh Chandra (P.W. 4). In the meantime, appellant Vishwa Nath and his real brother Vijay Bahadur also came there and participated in the altercation. Smt. Maharani deceased, Ramesh (P.W. 5), elder brother of Suresh Chandra (P.W. 4), Jagdish (P.W. 6), younger brother of Suresh Chandra and Megh Nath deceased of the said village also came there. Ahsan Khan (P.W. 10) and Ambar Khan (P.W. 7) were present on his shop and house respectively. Ramesh (P.W. 5) told Machley that he was doing injustice. Hearing it, Machley exhorted his sons (Vishwa Nath and Vijai Bahadur) to kill them. On his exhortation, appellant Vishwa Nath and his brother Vijai Bahadur fired shots from country made pistols possessed by them. The shots hit Smt. Maharani deceased, Megh Nath deceased, Ramesh (P.W. 5) and Jagdish (P.W. 6). Thereafter, the appellant and his father and brother ran away from the spot. Suresh Chandra (P.W. 4) prepared report (Ext. Ka-7) of the occurrence and went to police station along with injured persons and reached at police station Ailau at 00.30 a.m. in the night where he lodged report. Chik, F.I.R. (Ext. Ka-18) was prepared by Head Constable Ram Autar (P.W. 9), who made an endorsement of the same at G.D. report (Ext. Ka-19) and registered a case against Machley, Vijai Bahadur and Vishwa Nath under Section 307, I.P.C.
(3.) THE injured persons were sent to District Hospital, Mainpuri, where they were medically examined by Dr. A. N. Saxena (P.W. 2) between 7.45 a.m. and 8.30 a.m. Dr. Saxena found following injuries on the person of respective injured : Injuries of Megh Nath 1. Gun shot wound of entrance 1 cm. 1 cm. cavity deep on right loin just above iliac crest. Margins inverted and lacerated. No blackening, scorching or tattooing. 2. Gun shot wound of entrance 1 cm. 1 cm. depth not proved due to profuse bleeding, on right side back of chest at medial border of right side scapula. 6 cm. right from mid line, 4 cm. below root of neck. Margins inverted and lacerated. No blackening, scorching or tattooing. Injuries were caused by fire arm and were about 1/2 day old. Injuries of Smt. Maharani Devi 1. Gun shot wound of entrance 1 cm. 1 cm. abdominal cavity deep, left side front of abdomen 4 O'clock position 5 cm. from umbilicus. Margins inverted and lacerated. No blackening, scorching or tattooing. 2. Gun shot wound of entrance 1 cm. 1 cm. tissue deep on front of chest in middle 2 cm. below suprasternal notch. Margins inverted and lacerated. No blackening, scorching or tattooing. 3.Gun shot wound of exit 1.7 cm. 1.7 cm. through and through with injury No. 2 on right side front of chest at 12 O'clock position. 13 cm. above nipple. Margins averted and lacerated. Direction left to right transversely. Patient kept under observation, advised X-ray of chest and abdomen. Injuries were caused by fire arm and were half day old. Injuries of Jagdish 1. Gun shot wound of entrance 1 cm. 1 cm. cavity deep at 12 O'clock position. 4 cm. above umbilicus on front of abdomen mid line. 2. Gun shot wound of entrance 1 cm. 1 cm. tissue deep on right side front of abdomen at 9 O'clock position 8 cm. right from umbilicus. Margins of both wounds inverted and lacerated. No blackening, scorching and tattooing. Injuries were caused by fire arm and were about half day old. Injuries of Ramesh 1. Gun shot wound of entrance 1/2 cm. 1/2 cm. muscle deep on post axillary line 12 cm. below axilla, right side back of chest. 2.Gun shot wound of entrance 1/2 cm. 1/2 cm. tissue deep on right side back of thigh in middle. Margins of both wounds inverted and lacerated. No blackening, scorching or tattooing. 3.Gun shot wound of exit 0.75 cm. 0.75 cm. through and through with injury No. 2 on post medial aspect of right thigh in middle. Margins everted and lacerated. Directions backward to forward. Injuries were caused by fire arm and were about half day old. Conditions of Megh Nath and Smt. Maharani Devi deceased were serious and, therefore, they were admitted in the hospital. Investigation of the case was taken up by Sri Deoki Nandan, I.O. (P.W. 12). After recording statement of Head Constable Ram Autar (P.W. 9) at the police station, he reached place of occurrence where he interrogated Suresh Chandra (P.W. 4) and Ahsan Khan (P.W. 10). He inspected place of occurrence and prepared site plan (Ext. Ka-21). Thereafter, he interrogated Ambar Khan (P.W. 7). The I.O. came to District Hospital, Mainpuri, where he interrogated Smt. Maharani and Megh Nath deceased.;