- (1.) K. K. Misra, J. This appeal is directed against the judgment and order dated 12-12-1980 passed by Sri S. M. A. Khusro, the then IIIrd Additional Sessions Judge, Aligarh in Session Trial No. 137 of 1980, convicting the appellants and sentencing each of them for imprisonment of life under Section 302/34 of Indian Penal Code (IPC ).
(2.) THE prosecution case, in brief, is that one Ram Swaroop resident of village Asneti, Police Station Gonda, District Aligarh was killed a few yards away from his house little before the sunset on 23-7-1978 at 7. 00 p. m. THE reason why the deceased was killed at the hands of his own nephews, as furnished by the prosecution, is that there used to reside in the village a washerwoman, by the name of Dana. Dana had a daughter named Kusuma, aged about 17-18 years. THE two accused-appellants- Surendra and Chhotey Lal had illicit relationship with her and as a result of which she is said to have conceived. THEreafter, both these accused-appellants are said to have made her abort. Two days before the murder of Ram Swaroop the said washer-women Dana came to Ram Swaroop deceased with some persons and complained about the aforesaid matter relating to her daughter. THE deceased pacified her and told her that he would look into the matter. Something transpired, between the deceased and his nephews Surendra and Chhotey Lal that was not known. Next day at about 7 p. m. little before sunset. Resham Pal P. W. 1, the son of the deceased, as well as the deceased Ram Swaroop were sitting in front of their house when the two accused Surendra and Chhotey Lal passed that way. The deceased Ram Swaroop stopped them and told them that the family was being disgraced because of the incident relating to Dana. The accused is said to have expressed displeasure on this obtrusive attitude on the part of the deceased and went away grumbling. Next day in the evening a little before the sunset all the four accused Surendra, Chhotey Lal, Om Prakash and Jai Prakash are said to have gone to the house of the deceased. The accused Surendra and Jai Prakash were carrying country-made pistols, the accused Chhotey Lal was carrying a Pharsa and accused Om Prakash a spear. The deceased Ram Swaroop was going to his Nohra after his evening meals and he had hardly proceeded about 15 paces when he was accosted by these four accused near the Chabutra of one Ram Swaroop Mall. The accused Surendra told the deceased that he thought himself to be an incarnation of justice and then fired upon him with his country-made pistol as a consequence of which the deceased Ram Swaroop fell down on the ground. Thereafter the two accused Chhotey Lal and Om Prakash be laboured him with the Pharsa and the spear and then the accused Jai Prakash is also said to have fired upon him. Ram Swaroop deceased is said to have died instantaneously on the spot. P. W. 2 Devi Charan and P. W. 4 Smt. Buddo, daughter of the deceased, also saw the occurrence. An F. I. R. of the incident was lodged on 23-7-1978 at 11. 35 p. m.
(3.) THE prosecution in order to prove its case had examined 6 witnesses, P. W. 1 Resham Pal son of the deceased and is the informant. P. W. 2 Devi Charan, P. W. 3 Constable Ram Das Yadav. He has proved Ext. Ka-2 the written report, P. W. 4 Smt. Buddhi Devi the married daughter of the deceased, P. W. 5 Dr. K. P. Singh who had conducted the autopsy on the dead body of the deceased. P. W. 6 S. K. Yadav who had proved the site plan and has also proved Ext. Ka-7 i. e. the recovery of blood stained earth from the spot. P. W. 5 Dr. K. P. Singh found the following injuries on the person of the deceased: (1) Incised wound 2" x 1/4" x bone deep outer left side head. (2) Incised wound 1. 1/2" x 1/10" x scalp deep over left side head 1" below the injury No. 1. (3) Incised wound 1. 1/2" x 1/10" x scalp deep outer left occipital. (4) Incised wound 1. 1/4" x 1/4" x nipple cavity deep outer right side neck 1. 1/2" below the right ear. (5) Incised wound 1. 1/2" x 1/10" x muscle deep on the front side right of arm. (6) Incised wound 3. 1/2" x 1/2" x muscle deep on the right lower part of the arm. (7) Incised wound 1. 1/2" x 1/4" x muscle deep on the backside right elbow. (8) Incised wound 1" x 1/4" x muscle deep on the right back of the chest in the post auxiliary bone 5. 1/2" below the nipple at 10 o'clock position. (9) Gun shot wound of entry six in number in an area (2-1/2" x 2. 1/2") over right chest in mid auxiliary. Tattooing and charring found inverted margin. (10) Abrasion 3/4" x 1/10" over right (sic ). (11) Gunshot wound injury (six) in an area 2. 1/2" on backside hip size 2/10" x 2/10" x muscle deep ). Tattooing and charring present, margin inverted. (12) Stab wound 2. 1/2" x 1. 1/2" x abdomen cavity deep on the right lower part of the abdomen through which loop of the intestine came out. (13) Linear abrasion 1/10" x 1/10" area over right posterior shoulder. (14) Lacerated abrasion 2. 1/2" x 1/10" on the right shoulder. (15) Lacerated abrasion 1. 1/2" x 1/10" on the medial of back. The Post-mortem Report is Ext. Ka-4. The doctor has opined that injuries Nos. 9 and 11 were gun shot wounds and there was charring and tattooing in the injuries.;