- (1.) Challenge in this appeal is to the judgment and order dated 21.02.2002 passed by Additional Sessions Judge, Court No.2, Budaun in S.T. No. 6 of 1992, under sections 302/34 and 307/34 IPC, P.S. Bisauli, District Budaun, whereby the appellant has been convicted under the above offences and sentenced to imprisonment for life under each section. The sentences were to run concurrently.
(2.) Succinctly stated the prosecution story is that on 17.09.1991 at 7.30 P.M. Atishvir Singh s/o Tejpal Singh, r/o village Disauliganj, P.S. Bisauli, District Budaun submitted a written report in P. S. Bisauli stating that today at 5.30 P.M. as soon as his brother Virbhan Singh along with his son Saurabh turned towards his Gali, Abhilakh Singh son of Mahendra Singh armed with gun, Harendra Singh brother-in-law (Sala) of Chandra Bhan Singh resident of village Sartalkhera, P. S. Chandausi along with two others armed with country made pistols of 315 bore caught Virbhan Singh and dragged him towards his house, where Abhilakh Singh and Harendra Singh fired shots from close range at Virbhan Singh who instantaneously died on the spot. On hue and cry raised by Virbhan Singh and Saurabh Singh the complainant and his father, ran from their house and from other side Vijay Bahadur Singh, Dhirpal Singh and Narendra Pal Singh desisted Abhilakh Singh not to do so but he and Harendra Singh fired shots on him. Abhilakh Singh challenged to kill the complainant whereupon Harendra Singh and two other companions chased and fired three shots on them but they took shelter by the side of a wall and could mange their escape. After the incident Abhilakh Singh along with three companions went towards western side. The report further stated that up till 3-4 years there was land dispute/litigation between complainant and Abhilakh Singh but due to the intervention of relatives ot was compromised. About four months ago Ahabaran Singh brother of Abhilakh Singh was killed and in this connection Dhirendra Singh and others are in jail. Abhilakh Singh suspected that Virbhan Singh had conspired in the elimination of Ahabaran Singh. He made complaint to this effect to Ram Pal Singh, r/o Chandoi, P.S. Islam Nagar who was instrumental in the compromise between Abhilakh Singh and Virbhan Singh.
(3.) On the basis of this report case at crime no. 424/91, under section 302, 307 IPC was registered, investigation whereof was entrusted to S.I. Ram Lakhan Pandey. The Investigating Officer reached at the spot and collected samples of plain and blood stained earth and also seized two empty cartridges of 315 bore, one cartridge of 12 bore and missed cartridge of 12 bore from the spot through memo. He interrogated the witnesses and prepared site plan. The inquest on the cadaver of the deceased was prepared at 9.30 P.M. on 17.09.1991 and it was sent for autopsy in sealed cover along with usual papers. Dr. V.K. Mishra conducted the post mortem examination of the deceased on 18.09.1991 at 3.30 P.M. He found that 35-years old deceased was having thin built body. Rigor mortis had passed off from upper limb but was present in lower extremities. Post mortem staining was present in dependent parts (on dorsal aspect of body). Left upper arm was plastered. On cutting the plaster, shaft of left humerus was found fractured in the middle with callous formation showing that it was about 3-4 weeks' old fracture. The doctor found the following ante mortem injuries on the person of the deceased: 1.Large lacerated wound of the size 13 cm x 8 cm on left side of skull extending from lateral part of left eye to left ear to occipital area of skull and parietal area. Wound is cavity deep. All the bones involved in the area are fractured into multiple small fragments and brain matter have almost washed out of the wound leaving skull cavity empty. Margins of the wound are inverted. Blackening and tattooing present on left side of face and all round the wound. Direction of found is down wards to the right side. 2.Fire arm wound of entrance with blackening inverted margins of the size 3 cm x 2 cm oval in shape (above-downwards) x bone deep of medial aspect and middle part of right arm 11 cm below (sic). Direction of the wound is almost parallel to the wound (horizontal). In internal examination doctor found that right occipital, perinatal, frontal and temporal bone were fractured. Brain matter flushed out of the wound and very little part was remaining. One cork piece, wading piece and multiple small pellets were lodged near right mandible and from base of the skull on right half were recovered. Total 38-small pellets were recovered (caused by injury no.1). Two wadding piece and large pellets eleven in number lodged under the skull on outer aspect of right arm opposite to injury no.2 were also recovered. In the opinion of the doctor the deceased suffered death due to shock and haemorrhage as a result of ante mortem fire arm injury about one day before.;