G. D. Dubey, J. - (1.) THIS appeal was originally preferred by Kundan Singh, Suresh Kumar, Kishanpal Singh, Rohtas Singh and Hoshiar Singh against the judgment and order of first Additional District and Sessions Judge, Bulandshahr, holding them guilty of the offences punishable under section 148, 307 and 302 (both read with section 149) IPS and convicting them to various terms of imprisonment. A report has been received from C. J. M. Bulandshahr, Dated 7th August, 1989 that Kundan Singh, Suresh Kumar and Kishanpal Singh are dead. Hence the appeal filed by them has abated. Now the two appellants, viz. Rohtas Singh and Hoshiar Singh are left in this appeal. They have been sentenced to two years' R. I. under section 148, ten years' R. I. under section 307 read with section 149 IPC and to imprisonment for life under section 302 read with section 149 IPC.
(2.) THE prosecution story is that there was enmity between Ghanshyam Singh (PW 1) and appellants Kundan Singh, Suresh Kumar, Hoshiar Singh and Kishanpal Singh, some criminal litigations had also started and were pending on the date of occurrence. It is said that at about 3.30 p.m. on 12-11-1977, Kunwarpal Singh (brother of Ghanshyam Singh) was returning to his village Chola, police Station Chandpur, district Bulandshahr on cycle. This cycle accidently collided with Kishanpal Singh. THEreupon, Kishanpal Singh abused stating that he had deliberately dashed the cycle against him. He had threatened Ghanshyam Singh. Same day at about 4.00 P.M. Kunwar Pal Singh was inside his house in the said village when Kundan Singh, Kishanpal Singh and Hoshiar Singh each armed with revolver, Suresh Kumar with a D. B. B. L. gun and Rohtas Singh armed with country made pistol came towards the northern door of the house of the complainant, hurled abuses and challenged to him to come out of his house. Kunwarpal Singh came to the northern door of his house and all the five assailants fired their firearms towards him in an attempt to commit his murder. It was alleged that the gun-shots had hit Kunwarpal Singh on his chest. His wife Smt. Angoori Devi and his nephew Hari Ora (son of Ghanshyam Singh) also received injuries. At that time, Jaswant Singh (elder brother of Ghanshyam Singh) came out of the western door of his house apologising to the appellants for the acts done by his family members. Appellants Kundan Singh and Suresh Kumar (now dead) ran towards him and fired from close range causing fatal injuries to him. Jaswant Singh died on the spot. It has been urged that Ghanshyam Singh and other witnesses had seen the occurrence. After the assailants had gone away from the place of occurrence, Ghanshyam Singh went inside and found Kunwarpal Singh and two other injured. He had gathered the facts about the incident of firing at Kunwarpal Singh, his wife Smt. Angoori Devi and Hari Om. A first information report was lodged by Ghanshyam Singh at Police station Chandpur at 5.45 p.m. same day. THE injured had been brought by Ghanshyam Singh from the place of occurrence. THE injured were taken by the family members of Ghanshyam Singh to the hospital whereas Ghanshyam Singh had proceeded towards the police station. The injuries of Kishanpal Singh were examined at 7.00 p.m. on 12-11-1977 by Dr. Aqil Ahmad (PW 6) on the same day in District Hospital, Bulandshahr. The doctor had found one gun-shot wound of entry 1-1/2 cm x 1 cm on right side chest 1 cm below nipple at 6 O'clock position. The doctor had found the injuries simple in nature. Duration was opined to be fresh. The same Dr. Aqil Ahmad (PW 6) had examined Smt. Angoori Devi at 7.15 p.m. He had found the following three injuries :- 1. Gun shot wound 1/4 cm x 1/4 cm x not probed on the left side chest, at 1 O'clock position, 10 cm above the left nipple. 2. Gun shot wound of entry on the left breast, 1/4 cm x 1/4 cm in area of 4 cm above the nipple at 12 O'clock position. 3. Gun shot wound of entry 1/4 cm x 1/4 cm on the left forearm 3-1/2 cm below from the left wrist.
(3.) ALL the injuries were kept under observation and they were opined to have been caused by gun-shot. Duration was fresh. Ghanshyam had lodged report in police station Chandpur at 5.45 p.m. same day. The investigation had been taken up by Shish Pal Singh Tomar (PW 5). After interrogation Ghanshyam Singh, he proceeded to the place of occurrence. The inquest was started in the morning of 13-11-1977 and the dead body was sent to the mortuary. The third injured Hari Om aged about ten years had been sent to District Hospital, Bulandshahr for medical examination. He too was examined by Dr. Aqil Ahmad who found one abrasion 1/4 cm x 1/4 cm on the root of left index finger and abrasion of similar size on right fore-arm. The doctor had come to the conclusion that both injuries were caused by friction and were simple in nature. The Investigating Officer found blood at the spot and collected blood stained and plain earth in separate containers. He also found marks of pellets on wall and doors on the northern side of the house. He also found four empty cartridge cases of Mauzer and also one missed catridge. Towards west, one empty cartridge case of twelve bore was found. After interogating the witnesses he had submitted charge-sheet against the appellants.;