- (1.) M. C. Jain, J. There are three appellants, namely, (i) Subedar son of Narayan Nai, (ii) Ram Bhajan son of Chandan Ahir and (iii) Suraj Pal alias Sarju Dhanuk son of Anokhey. They have preferred this appeal against the judgment and order dated 30-9-1981 passed by Sri Sushil Kumar, the then VIII Addl. Sessions Judge, Bareilly in Sessions Trial No. 465 of 1980. Each of them has been convicted under Section 302 read with Section 34 I. P. C. with a sentence of life imprisonment under Section 307 read with Section 34 I. P. C. with a sentence of five years' rigorous imprisonment and under Section 449 I. P. C. with a sentence of seven years' rigorous imprisonment. All the sentences have been ordered to run concurrently.
(2.) WE have heard Sri K. D. Tripathi, learned Counsel for the appellants and Sri Sudhir Kumar Agarwal, learned A. G. A. from the side of State. The relevant facts may be set forth. The incident occurred in between the night of 7/8-10-1980 at about 2 O'clock in village Riona Dhimra, P. S. Fatehganj East, District Bareilly and the report was lodged on 8-10-1980 at 9. 30 a. m. by an ey-ewitness Shyam Behari PW 1. The distance of the police station from the place of occurrence was about 7 kms. One Morsri alias Meera daughter of Chhotey Lal was murdered in the incident whereas 4 others, namely, Om Prakash PW 2, Sumilla, Katori Devi and Nanhey sustained injuries. There was one another unknown companion of the present accused appellants. The accused appellant Subedar was allegedly armed with Paunia gun whereas two other accused appellants were armed with countrymade pistols and their unknown companion had a lathi. Shyam Behari PW 1 was sleeping in his house. At about 2 O' clock in the night he heard hue and cry emanating from the house of his brothers Chhotey Lal and Ram Ratan. He rushed up there with a torch. Om Prakash PW 2 also reached, flashing his torch. They saw the present three accused appellants alongwith another unknown person with the weapons stated earlier. The accused appellants opened three fires to kill them and demanded the gun of Ram Swaroop. The shots hit Ram Swaroop, his mother and his brother Nanhey. Morsri daughter of Chhotey Lal was sleeping in the Courtyard. Hearing the commotion, she was horrified and got up from the cot. One gunshot was inflicted upon her chest. Receiving the shot, she died at the spot. The wife of Chheda Lal was given lathi blow on the head by the 4th unknown companion of the accused-appellants. All the inmates of the house were making hue and cry which attracted the villagers at the spot who challenged the accused appellants. Opening fire, they ran away from the place of occurrence through the northern door. They were very well identified in the light of torches on the spot and Dibiya (small lamp) glowing in the house of the incident. The miscreants were also flashing their torches during the commission of the offence. Ram Shankar, Sri Krishna and Bhajan Lal had also identified the accused appellant in the light of their torches. On the lodging of the F. I. R. by Shyam Behari PW 1, a case was registered and the investigation entered into.
(3.) THE Investigating Officer reached the spot and busied himself in the activities related to investigation. After preparation of the Panchayatnama of the dead-body of the deceased Morsri, he sealed it and sent for post-mortem which was conducted by Dr. J. N. Bhargava PW 7 on 9-10-1980 at 3. 30 p. m. THE deceased was aged about 11 years and about 1-1/2 days had passed since she died. THE following ante- mortem injuries were found on her person: (1) Gunshot wound of entry. 4 cm x. 4 cm x skin deep on right side of forehead, 1 cm above lateral end of right eyebrow, no blackening or charring. (2) Gunshot wound of entry. 4 cm x. 4 cm x skin deep on right side of forehead, 1 cm above bridge of nose. (3) Three gunshot wounds of entry in an area 4 cm x 2. 5 cm on left side of face just below left nostril, size. 4 cm x. 4 cm x skin deep. (4) Three gunshot wounds of entry in an area of 5 cm x 3 cm x skin deep on right side of cheek 2 cm below eyebrow, size. 4 cm x. 4 cm x skin deep. (5) Four gunshot wounds of entry 9 cm x 4 cm of posterior aspect of right upper arm, 3 cm below shoulder. (6) Multiple gunshot wounds of entry in area of 23 cm x 14 cm in front of chest and upper part of abdomen. Various size. 4 cm x. 4 cm x skin, muscle, chest and abdomen cavity deep, no blackening or charring is present. (7) Gunshot wound of entry. 4 cm x. 4 cm x skin deep in front of left should joint. (8) Gunshot wound of entry. 4 cm x. 4 cm x abdomen cavity deep left side of abdomen, 7 cm below sub- costal margin. THE death had occurred due to shock and haemorrhage owing to fire-arm injuries. Injuries of the injured Sumilla wife of Ram Ratan, Smt. Katori wife of Chheda Lal, Om Prakash PW 2 son of Ram Ratan and Nanhey son of Ram Ratan were examined by Dr. Shabbir Hussain PW 4, M. O. of P. H. C. , Fareedpur, Bareilly on 8-10-1980 at 6. 05 p. m. , 6. 30 p. m. , 6. 45 p. m. and 7. 15 p. m. respectively. The following injuries were found on their persons: Injuries of Sumilla: (1) Two gunshot wounds. 5 cm x. 2 cm x skin deep on left side of head 2-1/2 cm apart from each other, backward and front 10 cm above left ear. (2) Gunshot wound. 2 cm x. 2 cm x skin deep on left side forehead just above left eyebrow. (3) Traumatic swelling 5 cm x 4 cm on upper and lower eyelid on left side. (4) Gunshot wound. 2 cm x. 2 cm x skin deep on right upper eyelid, swelling with traumatic swelling 5 cm x 4 cm on both eyelids. (5) Two gunshot wounds. 2 cm x. 2 cm x skin deep 1-1/2 cm apart from each other on back of right hand, 1 cm below right wrist, surrounded by traumatic swelling 5 cm x 5 cm. (6) Gunshot wound. 3 cm x. 2 cm x skin deep on right side of chest, 14 cm below right shoulder. (7) Multiple gunshot wounds in an area of 7 cm x 3 cm in front of right breast 3 cm above right nipple, each measuring. 2 cm x. 2 cm x skin deep. (8) Two gunshot wounds. 2 cm x. 2 cm x skin deep 3/4 cm apart from each other upward and downward over front surface of right upper arm, 4 cm above right elbow. Injury of Smt Katori: (1) Lacerated wound 5 cm x 1/2 cm x bone deep on back of head right side, 3 cm behind right ear, clotted blood present and under observation. Injuries of Om Prakash: (1) Gunshot wound. 3 cm x. 3 cm x skin deep on back of right hand, 1/2 cm above the base of right ring finger. (2) Gunshot wound. 2 cm x. 2 cm x skin deep on front of right fore-arm middle. (3) Gunshot wound. 2 cm x. 2 cm x skin deep on front of right elbow joint of fore-arm. (4) Two gunshot wounds 8 cm apart from each other, on aspect of left index finger and root of left thumb. (5) Multiple gunshot wounds in an area of 9 cm x 3 cm in front of left upper arm, in front of left fore-arm upper part, each measuring. 2 cm x. 2 cm x skin deep. (6) Multiple gunshot wounds in an area of 15 cm x 10 cm on left shoulder region with left upper scapula region, each measuring. 2 cm x. 2 cm x skin deep to. 4 cm x. 2 cm x skin deep. (7) Abrasion 1 cm x. 2 cm x skin deep on right cheek, 3 cm below right eye. (8) Abrasion. 2 cm x. 2 cm x skin deep on right cheek, 1/2 cm outer to nose. (9) Multiple gunshot wounds in an area of 12 cm x 12 cm on front of chest, each wound measuring. 2 cm x. 2 cm x skin deep. (10) Multiple gunshot wounds in an area of 15 cm x 14 cm on front of right thigh middle, each measuring. 2 cm x. 2 cm x skin deep. (11) Two gunshot wounds 13 cm apart from each other, upper and lower ankle of right leg, each wound measuring 2 cm. 2 cm x skin deep. (12) Multiple gunshot wounds in an area of 11 cm x 5 cm on front of left thigh lower part and left knee, each wound measuring. 2 cm x. 2 cm x skin deep. (13) Two gunshot wounds 8 cm apart from each other, on front of left leg middle, each measuring. 2 cm x. 2 cm x skin deep. Injury of Nanhey: (1) Gunshot wound. 4 cm x. 2 cm x skin deep on the top of left shoulder.;