- (1.) THIS appeal is directed against the judgment and order dated 19-1-1990, passed by the then 1st Additional Sessions Judge, Etah convict ing the appellants under Section 302 read with 34 I. P. C. and under Section 307 read with Section 34 I. P. C. and each of the ap pellants has been sentenced to imprison ment for life and five years rigorous im prisonment respectively under the said counts.
(2.) AT the outset we may state that the appeal of appellant No. I Jai Lai stands abated as he has expired during the pen dency 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 per sons situate in the western side of that village. There was an old well near the houses of the accused persons. In April, 1979some grant was received for const ruc tion of a well in village Mirzapur. Megh Singhand Gopal deceased wanted the con struction of that well in the vicinity of their houses whereas the accused wanted that well to be constructed in the neighbour hood 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 con structed 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, alter setting fire to the 'jawansa' and had reached at the crossing of the houses of Mitthu and Beni. Jia Lal, ac cused armed with a rifle and Kehari and Shyam armed with guns arrived there from northern side. They challenged Gopaland 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 fire-arms, as a consequences of which, both Gopal and Megh Singh sustained fire-arm 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 fire arm injuries proceeded 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 x 1/4 with inverted edges" darkening of the skin, skin deep oozing at fine of examination on the upper and front part of right arm, near axilla. (2) Gun shot wound 1/4 cm x 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 x 1/4 cm x skin deep on the front of chest. 3 cm medical and slightly lower to injury No. (sic ). (4) Gun-shot wound 1/3 cm x 1/3 cm x 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 11/4 cm x 1/4 cm x skin deep with blackening on outer side of wound on the front of let shoulder with palpable on outer side. (6) Gun-shot wound 1/4 cm x 1/4 cm x skin deep with red swelling 2. 5 cm x 1/5 cm on outer side of wound on the front of left shoulder, 7 cm outer to injury No. 5 pellet palpable. (7) Gun-shot wound 1 cm x 1/4 cm x 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 l/4 cm x l/4 cm x skin deep on the middle of the lateral side of the right side of neck with swelling 1 cm x 1 cm on outer side of wound. (9) Gun-shot wound 1/4 cm x 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 x 1/4 cm. skin deep on the left nostril outer side and near the junction of nostril. (11) Gun-shot wound 1/4 cm x 1/4 cm x skin deep with swelling around the wound 3 cm x 2. 5 cm on the front of the forehead on left side. 1. 5 cm above the medical end of the left eyebrow. (12) Gun-shot wound-1/2 cm skin deep on the middle of the left eye brow with swelling and blueish 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 swell ing 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.;