H. C. Mital, J. - (1.) THE above named appellants have preferred this appeal against their conviction and sentence under Sections 148 and 302 IPC to two years' rigorous imprisonment and life imprisonment respectively.
(2.) THE prosecution case, in brief, is that on 22-9-77 at about sun rise these appellants armed with fire arms along with two other unknown persons, who were armed with lathis entered the house of the complainant Room Singh, who on seeing them raised alarm. THEreupon his brother Agarpal Singh who was lying inside the room came out and on seeing him the appellants fired shots at him, as a result of which he died on the spot. THE occurrence was witnessed besides Smt. Savitri Devi PW 4, wife of Agarpal Singh, by other villagers including Man Singh, Teeka Ram and Khanjan. THE appellants along with their associates succeeded in making good their escape. A written report of the occurrence was lodged at the police station, Bisauli at a distance of 7 kilo metres at 9.05 A. M. on the basis of which a case was registered. THE investigating officer arrived at the scene of occurrence and after completion of the investigation sent the dead body for postmortem. Dr. N. P. Singh had conducted the autopsy and noted the following ante-mortem injuries vide postmortem report Ext. Ka 2 :- 1. Gun shot wound of entry 3 1/2 cm x 3 1/2 cm cavity deep on right side of lower chest 12 cm below right nipple. Blackening around the wound was present. THE wound was directing back-ward and to the left. 2. Multiple gun shot wound of entry each 0.25 cm x 0.25 cm x cavity in an area of 12 cm x 13 cm around injury no. 1. On internal examination fracture of 9th, 10th and 11th ribs of right side was noted. Pleura was punctured. Peritoneum was punctured, 33 pellets and 4 Tiklies were recovered from the abdomen cavity. 3 Ox od digested fond was present in the stomach. 22 pellets and one Cork were recovered from liver tissue. Kidney was ruptured and 8 pellets were recovered from right kidney. After completion of the investigation the present appellants were tried and to prove its case the prosecution in all examined 11 witnesses of whom PW 1 Room Singh, brother of the deceased, PW 4 Smt. Savitri Devi, alleged wife of the deceased, PW 2 Khanjan and PW 3 Man Singh are alleged to be the eye witnesses of the occurrence. PW 5 Dr. N. P. Singh had done autopsy and has proved the postmortem examination report as detailed above. He further stated that death was caused as a result of the ante-mortem injuries due to shock and haemorrhage. PW 10 Sub-Inspector Khushi Ram is the Investigating Officer and has deposed about the various steps taken by him during the course of investigation. The remaining are formal witnesses.
(3.) APPELLANT Kunwar Pal Singh is son of appellant Talewar Singh. The version of Talewar Singh is that he and deceased belonged to the same family and he had no enmity with the deceased or Room Singh. That Agarwpal Singh deceased kept Smt. Savitri after kidnapping her and once he had seen Smt. Savitri along with Room Singh in a compromising pose. Thereupon he had objected and since then Agarpal Singh, had shifted to another house which he had built and started living with Smt. Savitri while Room Singh continued to live in the old house with his mother. That Room Singh since then started bearing grudge against him. The learned Sessions Judge, however, believed the prosecution evidence and hence convicted and sentenced the appellants as above. On being aggrieved, this appeal has been preferred and the learned counsel for the appellants pointed out that the evidence on reccord was wholly insufficient to bring home guilt to the appellants ; that the occurrence had not taken place at about sun rise but must have taken place in the night in between 3 and 4 A.M. ; that Room Singh was not there. He used to live with his mother in the same house in which appellants Talewar Singh Kunwar Pal Singh lived and that the appellants have been falsely implicated on account of enmity. It was also pointed out that investigation was not free from suspicion.;