B. P. Singh, J. - (1.) THIS is an appeal against the judgment and order dated 11-8-1979 passed by the II Additional Sessions Judge, Etah in S.T.N. 131 of 1979 State v. Pratap Singh and another under section 302 and 302/34 IPC.
(2.) THE case of the prosecution, as was unfolded in the FIR Ext. Ka-1 and the evidence of Smt. Sumitra Devi PW 1, may briefly be stated as follows : Uma Shanker the deceased was the husband of Smt.Sumitra Devi PW 1. Munni Devi PW 2 is the daughter while Urbesh PW 4 is the son of the deceased. Accused Pratap Singh is the real brother of the deceased. Accused Girish Chand is the son of accused Pratap Singh. Pratap Singh and deceased Uma Shanker had separated and their houses and cultivable land were partitioned before the occurrence of this case. The house of Uma Shanker had the main opening towards the north and had also the door in the southern wall. Towards north of the house was the Gher of Uma Shanker. One plot of Pratap Singh was adjacent to the house of Uma Shanker in the east. Fifteen-twenty days prior to the occurrence of this case, Pratap Singh had planted some Kathal plants in one Bigha of land which was towards east of the house of Uma Shaker. The house of the accused is at a distance of about one furlong while the house of Satish Singh, another brother of Uma Shanker, was adjacent to the west of Uma Shanker's house.
(3.) ON 9-9-1977 it was about 12 in the noon when Uma Shanker had Just started taking his meals inside his house. His wife Smt.Sumitra Devi PW 1, unmarried daughter Munni Devi and young son Urbesh were also there. Accused Pratap Singh and Girish Chand entered the house and started abusing Uma Shanker Girish Chand was armed with his father's licensed single barrel gun. ON hearing abuses of the accused. Uma Shanker came out of his house in the Gher. His wife, son and daugher also followed. Both the accused were giving out that the cattle of Uma Shanker had eaten away Kathal plants from field of Pratap Singh. Uma Shanker refuted the allegation and gave out that be was not aware as to who had eaten the plants of Pratap Singh. Pratap Singh exhorted his son to kill Uma Shanker. Upon this Girish Chand fired upon Uma Shanker. Uma Shanker stepped away and pushed Pratap Singh. Pratap Singh was hit by the bullet. Pratap Singh then said to his son that he had shot him and that Uma Shanker should be killed. Girish Chand fired another short and the bullet hit Uma Shanker in the chest. Uma Shanker fell down on the ground Girish Chand took up the used cartridge from the ground and both the accused ran away from the place of occurrence. The above occurrence was witnessed by Smt.Sumitra Devi PW-1, Munni Devi PW 2 and Urbesh PW 3.;