- (1.) U. S. Tripathi, J. This appeal has been directed against the judgment and order dated 15-6-1981 passed by IV Addl. Sessions Judge, Badaun in Session Trial No. 41 of 1980, convicting appellant Ahjad and his real brother Tahir under Section 302 read with Section 34 I. P. C. and 307 read with Section 34 I. P. C. and sentencing each of them to undergo imprisonment for life under Section 302/34 I. P. C. and R. I. for a period of seven years under Section 307/34 I. P. C. Both the sentences were ordered to run concurrently.
(2.) THE prosecution story briefly stated was as under: In the year 1979 Babu Ram Panchal (PW 1) had taken contract for construction of dam and culvert near river Ganga Mahawa in district Badaun, Chiraunji Lal (PW 9) was working as Munshi (Clerk) of Babu Ram Panchal. Appellants Ahjad and Tahir were working as labourer in the construction of dam and culvert. Two days before the occurrence of this case some altercation had taken place between appellants and Chiraunji Lal (PW 9) regarding payment of wages to the appellants and the appellants had threatened to see the contractor Babu Ram. Contractor Babu Ram, his Munshi Chiraunji Lal, Mahendra Singh deceased (labourer) and Phool Singh (PW 8) a mason were staying at Hardutta Pur Rest House. Het Ram was Chaukidar of said Rest House. On the night of 21/22-6-1979 Chiraunji Lal (PW 9) was sleeping in the Varandah of the Rest House alongwith Mahendra deceased on a Charpai. Phool Singh (PW 8) was also sleeping in the said Varandah another Charpai alongwith Girvar (PW 2), the uncle of Het Ram Chaukidar. Babu Ram Panchal (PW 1) was not present in the said Rest House on the said night. A lighted lantern was hanging in the Varandah. At about 12. 00-12. 30 in the night the appellants came near Charpai of Chiraunji Lal (PW 9) and fired two shots. One shot hit on the back side of chest of Chiraunji Lal (PW 9) and the other shot hit on Mahendra deceased. Chiraunji Lal (PW 9) saw the appellants standing in front of his Charpai. After firing, the dacoits ran away towards north. Mahendra died on the spot. Hearing the sound of fire, Girvar (PW 2) and Phool Singh (PW 8) awoke and thereafter several persons of the village also came to the spot.
(3.) CHIRAUNJI Lal (PW 1) sent information of the occurrence to contractor Babu Ram (PW 1) who came to the spot and on the dictation of CHIRAUNJI Lal (PW 9) prepared report Ext. Ka-1 of the occurrence. Taking the report CHIRAUNJI Lal (PW 1) came to the police station Sahaswan and lodged the report at 5. 45 a. m. Chick F. I. R. Ext. Ka-4 was prepared by Head Constable Indra Pal Sharma (PW 6), who made an endorsement of the same at G. D. report Ext. Ka-5 and registered a case under Sections 302 and 307 I. P. C. against the appellants. Injured CHIRAUNJI Lal (PW 9) was sent to Primary Health Centre Sahaswan for medical examination, where he was medically examined by Dr. R. C. Arya (PW 4) who found following injuries on his person : Fire arm wound of entry 0. 75 cm x 0. 5 cm x muscle deep on right and outer side of chest (back side) 20 cm below the right shoulder; oval in shape with collar of abrasion. Margins were lacerated and inverted. No tattooing and scorching present.;