G.P.Mathur, J. - (1.) Bhoo Dev and Lalta Prasad have filed this appeal against the judgment and order dated 24-I-1979 of Sessions Judge, Moradabad in S. T. No. 498 of 1978 whereby, he convicted Bhoo Dev under Section 302, I.P.C. and Lalta Prasad under Section 323, I.P.C. and sentenced the former to imprisonment for life and later to one year's R.I. one Mahesh was also tried alongwith the appellants, but he was acquitted.
(2.) The case of prosecution, in brief, is that Bhoo Dev and Mahesh are real brothers being sons of Latta Prasad. The house of Lala Prasad is just adjacent to the house of Parmanand. The house of Lalta Prasad is towards east and house of Parmanand is towards west and little north. There is a Chabutra of Parmanand towards the east of his house and the said Chabutra is also adjoining to the house of Lalta Prasad towards its western corner. There was enmity between the informant Parmanand and the accused Lalta Prasad on account of litigation over land and grove which had been decided in favour of Parmanand. At about 7.30 p. m. On 19-6-1978 Lalta Prasad armed with Lathi, Bhoo Dev armed with licensed gun of his father and Mahesh with spade came to the roof. They started fixing a spout (PARNALA) on their roof from which, water would have fallen on the land of informant Parmanand. This was objected to by Bhagwat Dutt who was brother of the informant and he said that he would not allow the spout to be affixed over his land. Some exchange of words took place between them, hearing which, Parmanand, Som. Dutt, Ghanshyam and others arrived there, Lalta Prasad then said that spout would be fixed on that day on the strength of gun. Mahesh then started fixing spout in the wall. Bhagwat Dutt then proceeded to stop him on which, Bhoo Dev forbade him from moving ahead and immediately ired from his gun. Bhagwat Dutt received, gun shot injury and fell down. Som Dutt tried to save his father, but Latta Prasad assaulted him with Lathi. Bhoo Dev then held out that in case any one came nearby, he would shoot him. Thereafter, all the accused came down from the roof and left the place on a Tractor. Bhagwat Dutt died shortly thereafter. Parmanand then got written F. I. R. lodged at P. S. Bachhrayun at 6.30 A. M. on 20-6-1978 which is 12 Kms. from the place of occurrence. A case was registered in the general diary. P. W. 10 Satya Pal Singh, S.0. P. S. Bachhrayun recorded the statements of Parmanand under Section 161, Cr. P.C. and thereafter proceeded to the spot. He prepared Inquest report on the dead body of Bhagwat Dutt and took other necessary steps towards the investigation of the case. After completing the investigation, he submitted charge sheet against Bhoo Dev, Lalta Prasad and Mahesh.
(3.) After usual enquiry, case was committed to the Court of Sessions Learned Sessions Judge framed charge under Section 323/34 and 302, I.P.C. against Bhoo Dev, Section 323, I. P C., and Section 302/34, I.P.C., against Lalta Prasad and Section 302/34, I.P.C. against Mahesh accused. The accused pleaded not guilty to the charge and claimed to be tried.;