O.P.Pradhan, J. - (1.) FOR an occurrence which took place on the night intervening 20th and 21st November, 1977 at about 2-345 hours in which one Dulichand was murdered, appellants Anokhey Lal and Bhagwan Swaroop were tried in the Court of IV Additional Sessions Judge, Aligarh who convicted the appellant Anokhey Lal under section 302 IPC, and appellant Bhagwan Swaroop under section 302 read with section 34 IPC, and sentenced each of them to undergo imprisonment for life vide judgment and order dated 30-6-l979. Against their conviction and sentence, both the convicts have preferred separate appeals, Criminal Appeal No. 2044 of 1979 is by Anokhey Lal while Criminal Appeal No: 2045 of 1979 is by Bhagwan Swaroop. Both these appeals are being disposed of by a common judgment.
(2.) IN a nut-shell, the prosecution case is that appellant Anokhey Lal is father of appellant Bhagwan Swaroop and they are residents of Chirwara, police station Zarif Nagar, district Budaun. The house of Dulichand who lost his life as a result of the occurrence, is situate in village Sankara within the circle of police station Dadon, district Aligarh. IN the night of occurrence, i. e., the night intervening 20th and 21st November. 1979, Dulichand was sleeping in the gallery of his house on a cot. His son, Kalicharan (PW 3) was sleeping in the verandah to the south of the court yard of this house. The wife of Dulichand and his daughter, Mithilesh were sleeping in the rooms adjoining the said gallery towards east and west respectively. A hurricans lantern was burning in the gallery. At about 11.45 P.M., three miscreants armed with fire-arms sneaked into the court yard of the house by scaling the rear wall of the back portion of the bouse. Kalicharan and Dulichand were awakened by the sound caused by the movements of these miscreants. Dulichand tried to get up from his cot but he was fired upon by one of these miscreants from a country made pistol. He sustained a fire-arm injury on his neck and some pellets also struck the iron gate of the house. Dulichand succumbed to the lire-arm injury. Kalicharan (PW 3) flashed his torch towards the said gallery and raised alarm. He could see the miscreants in the light of his torch and lantern as also moon-light. He recognised two of the miscreants who were none-else but the appellants Anokhey Land and his son Bhagwan Swaroop. Anokhey Lal was armed with a country made pistol while Bhagwan Swaroop carried a gun and the third miscreant who could not be recognised, was armed with a country made pistol. All the three miscreants opened the iron gate of the house and managed to escape towards west. However, they were seen fleeing from the house by Shankar Lal (PW 7), Nabi Sher (PW 5) and Kishanpal Singh in the light of the torches and moon-light. They also recognised Anokhey Lal and Bhagwan Swaroop among the miscreants. Kalicharan (PW 3) then wrote the first information report at his own house and carried it to the police station Dadon the very same night and lodged it there at 1.45 A M., on 21-11-1977. A case was registered on the basis of the first information report and investigation was started by Rakeshapal Singh (PW 8) who was Sub-Inspector of police present at the police station. After interrogating Kalicharan at the police station, he reached the place of occurrence and found the dead body of Dulichand at the site of the occurrence. Due to darkness, he did not conduct the inquest in the night. After sun-rise, he held inquest on the dead body and despatched the dead-body of Dulichand for post-mortem-examination along with (he relevant papers. During local inspection of the place of occurrence, Rakshpal Singh (PW 8) who had started the investigation, found a spent cartridge and pieces of pellets. He also seized blood stained Takiya, Gadda and Chadar from the cot,, of the deceased and also collected bloodstained picees of bricks from the of the gallery. Dr. S. N. Agarwal (PW 4) conducted autopsy on the dead-body of Dulichand. He found the following ante-motem injuries on the dead body : 1. Lacerated wound of gun-shot of entry 1 1/2" x 1" x neck cavity deep on the front and left side of the neck, 1 3/4" below angle of mandible and 1/2" above the left Sterne joint. Blackening and tattooing were present and the wound was in an area of 3" x 1 1/2". Margins were inverted. - 2. Lacerated wound of gun-short of exit 4" x 1 1/2" x bone deep on right side neck, 2" above the right collar bone, outer 1/3" extending upward, 1/2" behind the lobule of right ear. Margins were everted. Blackening and tattooing were not present around the wound. Fracture of mandible of right side as also the fracture of mastoid process was present. On internal examination, larynx and trachea were found badly lacerated. Desophagus was also badly lacerated and heart was empty. The stomach contained 2 ounces of semi-digested food and bladder was half full. In the opinion of the doctor, the death of Dulichand had occurred due to shock and haemorrhage resulting from the above injuries'.
(3.) APPELLANT Anokhey Lal was arrested on 14-12-1977 and Bhagwan Swaroop surrendered in the Court of the Chief Judicial Magistrate, Aligarh on 5-1-1978. After completing the investigation, S. O. Baleshwar Singh (PW 6) who had conducted the remaining investigation, submitted the charge sheet against both the appellants. ' Both the accused-appellants pleaded not guilty to the charge of murder and claimed to have been falsely implicated since the ex parte decree which had been passed in the Civil suit brought by Dulichand for recovery of money against accused-appellant Anokhey Lai had been set aside at his instance.;