- (1.) SURYA Prasad, J. This is a criminal appeal against the judgment and order dated 28th November, 1979, passed by the then learned IVth Additional Sessions Judge, Agra, in Session Trial No. 269 of 1978 convicting and senten cing the appellants under Section 302 read with Secfion 149, I. P. C. to undergo imprisonment for life, under Section 147, I. P. C. , to 6 month rigorous imprisonment and under Section 148, I. P. C. to one year rigorous imprison ment. All the sentences were directed to run concurrently.
(2.) THE prosecution case briefly stated is that there was enmity between the deceased Babu Ram and the accused persons because the deceased and his brother Chiranji Lal (PW 1) had been given apatta in respect of the land by the Gram Samaj and the said land formerly belonged to the accused Sarwan and one Jag Das and was adjacent to the plot of the accused Sarwan towards east. THE accused Sarwan is the father of the other accused. THE deceased had demolished the Nali that lay between the plots of the accused Sarwan and the aforesaid land of the deceased. THE demolition of the said nali was the cause of the present incident. It is alleged that on 17th October, 1977 at about 7 a. m. the deceased Babu Ram had gone to case himself towards the Bamba and on return when he reached in front of the agricultural plots of the accused, all the accused emerged, chall enged and attacked him (decease) with their respective weapons. THE accused Sobaran and Jagdish were armed with a pharsa and ballam respectively, whereas the other accused were armed with lathis at that time. THE deceased Babu Ram raised hue and cry, hearing which his brother Chiranji Lal (PW 1), Faiyaz Khan (PW 4) and Surendra Kumar (PW 5) rushed to the scene of occurrence and witnessed the incident. THE accused filed away towards the jungle. THE deceased Babu Ram fell down on the spot. He was, however, taken to the police station Narkhi where the first information report, which was scribed by Om Prakash Pradhan (PW 2) was lodged by the informant Chiranji Lai (PW 1) on 17th October 1997 at 9. 30 a. m Consequently a case was registered under 307, 1. P. C. , but later on it was converted into one under Section 302, Indian Penal Code but later on it was consequently into one under section 302 I. P. C. THE was mediceased was medically examined by Dr. A. S. Birman at S. N. M. Hospital, Firozabad on 17th October ,1977 at 11. 45 a. m Dr. A. S. Birman found the following injuries on the body of Babu Ram : (1) Lacerated wound 4 cm x 1 cm x bone deep on the top of head. (2) Lacerated wound 4 cm x 1 cm x muscle deep on the back of left forearm 10 cm below the elbow joint. (3) Traumatic swelling 6 cm x 4 cm on the back part of left forearm 4 cm above the left wrist, Advised X- ray. (4) Traumatic swelling 5 cm X 4 cm of the back part of rt forearm 7 cm below the elbow joint. Advised X-ray. (5) Incised wound 1 cm X 5 cm x muscle deep on the centre of swelling No. 4. (6) Traumatic swelling 10 cm x 6 cm on the back right forearm 1 cm above the wrist joint. Advised X- ray. (7) Traumatic swelling 8 cm x 4 cm on the dorsum of right hand with abrasion 1 crn X 0. 5 cm in the centre of swelling No. 6. (8) Traumatic swelling 12 cm X 10 cm on the front of left thigh in the middle. Advised X-ray. (9) Lacerated wound 1 cm X 0. 5 cm on the left thigh lower and inner part. (10) Incised wound &1. 5cm X 0. 5 cm X muscle deep on the front of left leg upper I/ 3rd. Direction downward. (11) Lacerated wound 1 cm X 0. 2 cm X muscle deep on the front of left leg 2. 5 cm below the injury No. 10. (12) Incised wound 6 cm X 1 cm X muscle deep on the front of right leg 10 cm below the Knee joint. (13) Lacerated wound 3 cm x 2 cm x muscle deep on the front part of right leg 2 cm lateral on injury No. 12 (14) Traumatic swelling 8 cm x 6 cm on the back right side lower l/3rd. Advised X-ray. Dr. A. A. Birman prepared the injury report Ext. ka 13.
(3.) THE then Naib Tahsildar. Firozabad, Sri Bhagwati Prasad Sharma (PW 8) recorded the dying declaration (Ext. ka 21) of deceased Babu Ram on 17th October, 1977 at 2. 25 p. m. On 18th October, 1977 the deceased was shifted to S. N. Hospital, Agra, where he died on 19th October, 1977 at 4. 45 p. m. Dr. V. P. Awarwal (C. W. 1) conducted the post-mortem on his dead body and found the follow ing ante-mortem injuries thereon : (1) Incised wound 3/4" x 2/4" muscle deep with tailin of the wound on the outer side and outer part and middle of right-arm. (2) Lacerated wound 3/4" x 3/10" x bone deep on the back of right forearm upper part. The underlined both bones radius and ulna fractured. (3) Abraded contusion 2''x 1 on the back of right forearm lower part with fracture of both bones underlined radius and ulna. (4) Lacerated wound 3/4" X 1/4" bone deep on the back of right hand near khucker with fracture on head on second metacarpal bone. (5) Lacerated wound 1 1/2 " X 3/4" muscle deep on the outer and upper part of right leg. (6) Lacerated wound 1 " X 3/4" X bone deep on the front or right log middle part. (7) Lacerated wound 3 ' x 1" X bone deep on the front of middle of left leg with fracture of underlined both bones, tibia and fibula. (8) Lacerated wound 1 ''x 1" X bone deep on the inner side lower part near knee of left side. The underlined left famur bone fractured from the lower end. (9) Stitched wound 1 " on the back of left forearm middle part. (10) Multiple small abrasions in an area of 3 ' x 1 " on the back and lower part of left forearm, the underlined both bone,j radius and unla were fractured. (11) Abrasion 1 " X 1" on the back of chest right side middle part. (12) Lacerated stitched wound 1 " X 2/10 " bone deep on the back of skull.;