- (1.) M. C. Jain, J. The two appellants as Gaya Prasad and Genda Lal who have challenged the judgment and order dated 24-9-1981 passed by Sri D. P. Gupta, the then 8th Additional Sessions Judge, Etawah in Sessions Trial No. 119 of 1981. Both of them have been convicted under Section 302 IPC read with Section 149 IPC with a sentence of life imprisonment and under Section 307 IPC with a sentence of 5 year rigorous imprisonment. Each of them has further been convicted under Section 148 IPC with a sentence of two years rigorous imprisonment. All the sentences have been ordered to run concurrently.
(2.) WE have heard Sri Amar Saran learned Counsel for the appellants and Sri Shekhar Yadav learned A. G. A. appearing from the side of the State to oppose the appeal. The incident took place in between the night of 1st and 2nd January, 1981 at about 10 p. m. in village Hirapur hamlet of Timarua, Police Station Chaubia District Etawah and the FIR was lodged on 2-1-1981 at 10. 30 a. m. by Ram Shankar P. W. 3, the distant of the police station from the place of occurrence being 14 kms. Genda Lal is the brother-in-law of accused Gaya Prasad and both resided in the village of occurrence where the complainant and the deceased also resided. The houses of both the sides were in close proximity. About a month before this incident, Lala Ram son of the accused Gaya Prasad thrice attempted to commit theft in the house of the deceased Chhail Bihari. A Panchayat was held and the matter was reconciled with the result that no FIR was lodged for those occurrences. About 15 days earlier to the present incident, Lala Ram son of Gaya Prasad was caught with a stolen rickshaw and the deceased Chhail Bihari was a witness against him. Gaya Prasad (father of the Lala Ram) had threatened Chhail Bihari that he would teach him a lesson before the expiry of one month. Out of fear, the deceased used to sleep in the night in the adjoining house of Kamta Prasad. His brother Ram Shankar P. W. 3 was a tube-well operator in Etah District and was in the village owning to leave since 29-12-1980. The house of Kamata Prasad was situated towards east of that of the complainant. The courtyard of the complainant was about 2 ft. higher than that of Kamla Prasad. The partition wall between the two houses had fallen down in rainy season. In the courtyard of Kamta Prasad on the northern wall a Chappar was overhanging, under which the deceased was sleeping at the fateful time. After taking their dinner, Smt. Laraiti Devi P. W. 1 (mother of the deceased and Ram Shankar P. W. 3), Chhail Bihari deceased and Ram Shankar petitioner 3 had slept down. Ram Shankar P. W. 3 was also sleeping in the Chhappar aforesaid with Chhail Bihari on the same cot, whereas Smt. Laraiti Devi P. W. 1 was sleeping in the southern portion of her house under a Chhappar. A glowing lantern was hanging at the outer portion of the western corner of the Chhappar of Kamta Prasad. At about 10 p. m. , five persons including the present two appellants entered the house of complaint Ram Shankar P. W. 3 from western side. When they reached the Chhappar Smt. Laraiti Devi P. W. 1 in search of Chhail Bihari, one of them pulled up the quilt of Smt. Laraiti Devi P. W. 1 and said that it was not Chhail Bihari. Smt. Laraiti Devi P. W. 1 questioned as to who they were. She recognised the present two appellants in the light of the lantern but their three companions were unknown to her. Hearing the voice of his mother Smt. Laraiti Devi, Chhail Bihari came out with a lathi and enquired as to what was the matter. As soon as he came out of the Chhappar and was just to enter the Sahan of his house, Gaya Prasad exhorted that he was Chhail Bihari and be killed Genda Lal supported Gaya Prasad loudly consenting the same. Without losing of the companions of the accused-appellants shot fire from his pistol which hit Chhail Bihari in this chest. He fell down saying that Gaya Prasad and Genda Lal got him assaulted. He died instantaneously. Ram Shankar P. W. 3 who had also got up alongwith his deceased brother Chhail Bihari shouted that he was coming for help of his brother, but he was also fired upon three shots by Gaya Prasad, Genda Lal and one of their companions. He, however, escaped unhurt. Hearing the shouts and shots, the neighbours Vijay Bahadur P. W. 2 and Badan Singh rushed up with lathis and torches and saw Gaya Prasad and Genda Lala alongwith three companions running towards southern side with pistols in their hands, offering threats while fleeing. On the lodging of the FIR, a case was registered and investigation followed, which was conducted by Station Officer J. N. Singh P. W. 7. He busied himself with the steps related to investigation.
(3.) THE post-mortem over the dead body of the deceased was conducted by Dr. Arun Prakash P. W. 5 on 3-1-1981 at 3 p. m. THE deceased was aged about 35 years and about 1-1/2 day had passed since he died. THE following ante-mortem injury was found on his person: "gunshot wound 6 cm. in diameter on right side chest upper part just below clavicle, 9 cm. above and medial to right nipple, edges inverted. Piece of lung coming out. Blackening and scorching present. " The cause of death was shock and haemorrhage due to ante-mortem injury.;