Surya Prasad, J. - (1.) THESE two appeals have been filed against one and the same judgment dated 26th September, 1979 passed by the then learned III Additional Sessions Judge, Mathura, in Session Trial No. 45 of 1979 convicting the appellants in both the appeals under section 302 read with section 149 IPC and sentencing them to imprisonment for life for the murder of Samay Singh, further convicting them under section 302 read with section 149 IPC and sentencing them to imprisonment for life for committing the murder of Smt. Kishan Devi, wife of Ramji Lal, Smt. Kishan Devi, wife of Ramphal, Hari Singh, son of Ramji Lal and Km. Atri, daughter of Sarup and also convicting them under section 148 IPC and sentencing to two years rigorous imprisonment thereunder. All the sentences were directed to run concurrently. Seven accused named, Shami, Ram Singh, sons of Lal Singh, Shera, Lal Chand, Roopan Rumal and Amri, who were also tried, were, however, acquitted of the charges levelled against them along with the applicants accused, in the present appeals, by the learned III Additional Sessions Judge, Mathura, through his aforesaid impugned judgment and orders. The first charge framed against the accused appellants along with others is that they armed with guns and country made pistols along with Narain Singh, formed an unlawful assembly at about 6.15, 6.30 am. on 7-9-!978 in the Abadi of village Rampur within police circle Shergarh with the common object of murdering Surjeet, sou of Narain Singh and his family men and they used criminal force and thereby they committed the offence punishable under section 148 IPC. The second charge against them is that they along with Narain Singh on the said date, time and place, armed with guns and country made pistols, arrived at the roofs of the houses of Surjeet and Ramphal and as members of unlawful assembly and in persuance of the aforesaid unlawful object, they committed the murder of Samay Singh, nephew of Surjeet and thereby they committed the offence punishable under section 302 read with section 149 IPC. The third charge against them is that they on the said date, time and place along with Narain Singh, armed with guns and pistols, as members of the aforesaid unlawful assembly and in persuance of the aforesaid unlawful object they committed the murder of Smt. Kishan Devi, wife of Ramphal, Smt. Kishan Devi, wife of Ramji Lal, Km. Atri and Hari Singh, members of the family of Surjeet and thereby committed the offence punishable under section 302 read with section 149 IPC.
(2.) THE prosecution case briefly stated is that there was a deep-rooted old enmity between the accused on the one side and Surjeet (PW 1) on the other and this was a sequel to the criminal litigation, which had taken place some one or two decades ago. THE criminal cases fought out by the parties left behind a trial of acrimony, rancour, ill-will and hatred for each other. Shree Ram, Hariya, Ram Singh and Narain Singh are the sons of Tursi Gujai. Ram Singh and Shami are the sons of Lal Singh. Roopan and Amri are real brothers, being sons of Yadu. Narain Singh is an Ex. Army- man, who was living in the village since he deserted the Army. It is alleged that on the date of this occurrence, the daughter of Narain Singh was easing on an open land, which is used for purposes of Rasta by the public and is in the close vicinity of the heaps of dung-cakes of Surjeet. This was objected to by Mst. Dhaura (PVV 2) who is the elder sister of Surjeet Singh (PW 1) and is a married woman, about 40 years of age. She was staying with her brothers at the time of this incident, Narain Singh was standing by the side of her daughter, who was attending the call of nature. Mst. Dhaura remonstrated against Narain Singh for his audacity to make his daughter ease in the public Rasta. It is further alleged that this culminated in the exchange of hot words followed by abuses. Meanwhile Surjeet Singh (PW 1) and the other three brothers of Narain Singh, namely, Shree Ram, Ram Singh and Hariya were attracted to the scene by the surcharged atmosphere and the high tempers of Smt. Dhaura and Narain Singh. THEy, however, acted as interveners and separated Mst. Dhaura and Narain Singh. Surjeet Singh took away his sister Mst. Dhaura (PW 2) to his house whereas the brothers of Narain Singh took him away to their house. Consequently a serious incident which was likely to happen was averted by the timely arrival of the brothers of both the sides, It is further alleged that Mst. Dhaura (PW 2) became busy with the domestic affairs. Surjeet (PW 1) washed his mouth and came out of his house with his nephew Samay Singh. THEy started gossiping in the public lane. It is further alleged that 12 persons, including one absconder, named, Narain Singh appeared on the scene armed with country made pistols and guns. Some of them climbed up on the roof of the house of Surjeet Singh where as the rest climbed on the roof of the house of Ram Phal. THEy were all, as mentioned above, armed with guns and country made pistols. THEy fired a volley of shots from the aforesaid two roofs and the first casualty was Samay Singh, who fell down badly injured and collapsed instantaneously because of serious head injuries. Surjeet Singh (PW 1) in order to save himself took refuge behind an incomplete mud wall against the on-slaught of fire arms. THE report of gun-shots attracted the ladies with children, one followed them and the other was in the lap of his mother. Indiscriminate firing bit them on vital parts and they also breathed their last. It is further alleged that the incident was witnessed by Pooran, son of Ashraf (PW 3), Amar Singh (PW 4) and Beedha (PW 5.) Amar Singh and Beedha, sons of Tuhda are brothers and are neighbours of Surjeet Singh. It is alleged that at the time of the incident they were enjoying Hukka. It is further alleged that the accused having accomplished their objective, left scene and became un-traceable Surjeet Singh, came out of the hide-out. His Sala (brother-in-law) Suraj was staying with him as he had come to take his sister with himself. Shortly after the incident, Surjeet Singh appeared on the scene of occurrence. Surjeet Singh (PW 1) got a report (Ex. Ka 1) written by Suraj Singh on his dictation about the incident. Surjeet Singh thereafter left for the police station on horse-back. Reaching there, he handed the written report over to the police official concerned, who on its basis prepared a chiek Report, Ext. Ka-2 and made the entries in the general diary, an extract of which is Ext. Ka-3. A case was ultimately registered against the appellants accused along with eight others, including Narain Singh who has since been absconding. After the registration of the case, the investigation ensued THE Station Officer Inam Singh, who was present at the police station, immediately left for the spot on motor-cycle. Reaching there, he- immediately recorded the statement of Surjeet Singh, inspected the dead bodies and seized them and then he held inquest with the aid and assistance of five public Panches, got them (dead bodies) duly sealed-up and despatched them to mortuary for post mortem examination with necessary papers. He picked-up blood-stained and plain earth from the spot, put them in separate containers Exts. Ka-1and Ka-2 and prepared memos Exts. Ka-42 and Ka-43 therefor. THEreafter he inspected the roofs, but he did not recover any empty, pallet or wad. He raided the houses of the accused, but they were not traceable. THE statement of Smt. Dhaura (PW 2) was recorded on 1-10-1978. THE post mortem examination was conducted by Dr. S. Yadav on the dead bodies of all the deceased, as deposed by Dr. K. K. Khanna (PW 8) the then C.M.O., District Hospital Mathura. As a result of the post mortem examination on the dead bodies of Samay Singh, Km. Atri, Hari Singh, Smt. Kishan Devi, wife of Ramji Lal and Smt. Kishan Devi, wife of Ramphal the following antemortem injuries were found thereon : Samay Singh : 1. Gun shot wound of entry 1.5 cm x 1.5 cm x brain cavity deep on right parietal bone 10 cm above the right ear. Brain matter protruding from the wound. 2. Two gun shot wounds of entry 2 cm x 2 cm x muscle deep each in an area 4 cm x 4 cm on right scapula blade upper-part-recovered one pallet of big size. Death due to coma as a result of head injury. Km, Atri, d/o Sarup : 1. Gun shot wound of entry on the right side of occipital region 1.5 cm x 1.5 cm x brain cavity deep. Brain material protruding from the wound. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep just below supra sternal notch. Death was due to Coma as a result of head-injuries Hari Singh, s/o Ramji Lal : 1. Gun shot wound of entry 1.5 cm x 1.5 cm x chest cavity deep front right side chest 2 cm above right nipple. Scorching and tattooing around the wound. 2. Gun shot wound of exit 2 cm' x 2 cm and connecting injury no. 1 on back right side of chest. Pleura lacerated right side at two places. Right lung upper lobe lacerated through and through under injury no. 1. Cause of death was due to syncope as a result of injuries. Smt. Kishan Devi w/o Ramji Lal : 1. Gun shot wound of entry 2 cm x 2 cm x neck cavity deep on left side middle of neck 5 cm below the left ear. No scorching or tattooing. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep just front of right axilla. No scorching or tattooing present. 3.Gun shot wound of entry two in number 1 cm x 1 cm x 2.5 cm. Through and through connecting injury no. 1. THE cause of death was due to syncope as a result of shock and haemorrhage. Smt, Kishan Devi, w/o Ramphal : 1. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on front of middle of sternum precardial region. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on left lateral side of chest 8 cm below left axilla. 3.Gun shot wound of exit left side back chest at interior angle of left scapula. No tattooing or scorching present. 4. Gun shot wound of exit on the neck midline connecting injury no. 1. Death was due to syncope as a result of shock and haemorrhage due to injuries. According to the opinion of the doctor, the death of the victims could have possibly occurred on 7-9-1978 at about 6, 6.30 a.m. THEse injuries were sufficient to cause death in the ordinary course of nature. On the receipt of the post mortem reports and after the completion of the investigation into the case, a charge sheet was submitted against the appellants-accused and others. The prosecution examined the informant Surjeet Singh (PW 1), Smt. Dhaura (PW 2), Puran (PW 3), Amar Singh (PW 4), Bodha (PW 5), Sub-Inspector Inam Singh (PW 6) and Dr. K. K. Khanna (PW 8) and relied upon certain documents including an affidavit filed by Mulayam Singh in support of its case.
(3.) THE appellants accused along with others pleaded not guilty. They have stated that all the allegations levelled against them are wholly wrong and incorrect. They have pleaded ignorance about many of the facts relating to the case. They have further stated that they have been falsely implicated on account of enmity. They have also stated that the witnesses have deposed against them on account of enmity. They have not examined any one in defence. They have, however, filed certain documents in support of their contentions.;