R.C.DEEPAK, J. - (1.) This is a criminal appeal against the judgment and order of the then Additional Sessions Judge, Shahjahanpur dated 24-3-1981 in Sessions trial No. 427 of 1989 convicting the abovenamed accused-appellants under Section 302/149, IPC and sentencing them thereunder to Imprisonment for life and three years' RI under Section 148, IPC while directing both the sentences to run concurrently.
(2.) The prosecution case briefly narrated is that Itwari and Hira Lal (deceased) sons of Sumer were residents of village Mohar Tola P.S. Nigohi District Shahjahanpur. They were living jointly in one and the same house. All the accused-appellants except Malkhan, as mentioned earlier, are residents of the same village Mohar Tola. It is alleged that there elapsed nearly four months since mother of the appellant Mangali was murdered. In her murder case, Mangali implicated Itwari, Hira Lal and two others. Itwari and Hira Lal were consequently enlarged on bail. Consequently they were as usual looking after cultivation etc. together. Mangali, Kanchan and their relation generated a acrimonious feeling of ill will and enmity towards Itwari and Hira Lal. Once or twice Mangali hired goondas to kill Hira Lal. It was on 11-10-1979 that Itwari and Hira Lal got up in the morning, untied their cattle from one place and tied them at the other place and gave them fodder. At about 8.30 AM on that date Hira Lal was plastering Gobri on the outer part of the western wall of his Chaupal taking it (Gobri) from an Aluminium pateli in which it was put. His wife Smt. Nanhi was preparing Gobri nearby. Itwari was cleaning the Chaupal. Bhola and Bhimsen residents of the said village Mahavtola were present near the well of Itwari for the purpose of drawing and taking water from it (well). It was at time i.e. 8:30 AM that Mangali armed with a country made pistol, Ram Prasad with an unlicensed single barrelled gun, Bahadur with unlicensed gun. Dwarika with a Kanta, Kanchan with a sword and Malkhan with his licensed single barrelled gun emerged throwing challenge from the house of Kanchan which was very close to the house and Chaupal of Itwari and Hira Lal (deceased) and Malkhan while uttering words and expressing that he would take revenge of the murder of his sister, opened fire from his gun at Hira Lal who sustained injury as a result thereof. No sooner Hira Lal was to run away then Malkhan, Ram Prasad, Mangali and Bahadur opened fire at him (Hira Lal) from their respective weapons. He fell down having sustained injuries. Thereafter Kanchan and Dwarika rushed and caused injuries to him. Consequently he died on the spot. A buffalo that was tied nearby also sustained injuries Bharisen, Bholey, Bhopali, Smt. Nanhi, Badri and Sohan reached the place of occurrence hearing hue and cry and witnessed the entire occurrence. They threw challenge to the accused-appellants who ultimately retreated and ran way towards east-south while threatening the above named persons and others. After the incident was over, Itwari went to the police station Nigohi and lodged the First Information Report Ext. ka 2 there. A case was consequently registered against the accused-appellants. Ganga Singh Sharma, the then Station Officer of the said Police Station was present at the time of the lodging of the report. He himself took up the investigation into the case immediately after its registration. He accompanied by Prem Singh, the then S.I. and other visited the place of occurrence and on his instruction Prem Singh prepared inquest report, photolash, challanlash and a letter for post mortem examination etc.
(3.) Dr. M.L. Tandon conducted the post mortem examination of the dead body and found the following ante mortem injuries therein : (1) Incised wound 14 cm. x 6 cm. x bone deep on left side head towards the back 2 cm. below and behind the lobule of left ear with first and second cervical vertebral bound outside. (2) Incised wound 2 cm. x 1 cm. x muscle deep on right side head towards the posterior aspect 9 cm. above injury No. 1. The injury is not mentioned in the police paper. (3) Abraded contusion 11 cm. x 1 cm. on top of left shoulder extending on outer aspect left arm. (4) Lacerated wound 2 cm. x 1 cm. x muscle deep on back of left fore arm, 4 cm. below the elbow. (5) Gunshot wound of entry 5 cm. x 4 cm. x through and through in right thigh, and back 24 cm. above back of knee. Oval in shape blackening around and margins of the wound present. (6) Gunshot wound of exit 13 cm. x 4 cm. x through and through on inner aspect infront of right thigh communicating with injury No. 5. (7) Lacerated wound 1 cm. x 1 cm. muscle deep oval shaped on outer aspect left thigh 2 cm. above the left-knee. (8) Two contusions each measuring 4 cm. x 1 cm. on outer aspect left thigh 4 cm. apart from each other 1 cm. inner to injury No. 7. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries 11/2 days before the post mortem examination. The post mortem examination report is ext. Ka 3. 3.1. Dr. A. K. Jauhari (PW 1) examined the injuries of the buffalo on 12-10-1989 at 8 PM and found the following injuries on its body : Nine gun shot wounds on the left side at the lower belley scattered in an area of about 7" diameter at about 8" forward from knee joint. No chhurra etc. would be traced out. Injuries seem to be about twenty four hours old from the time of examination i.e. 8 AM of 12-10-79 in my opinion.;