K.K.MISRA, J. - (1.) THESE three appellants were tried by the 5th Additional Sessions Judge, Bareilly in Sessions Trial No. 451 of 1980 in respect of the murder of Dhani Ram, brother of the informant, allegedly committed on 15 -4 -1979 at about 10 -11 p.m. in village Gonair, Police Station, Meerganj District Bareilly and have been convicted under Section 302 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment of five years under Section 201 IPC, which shall run concurrently.
(2.) THE prosecution story, briefly stated, is that in the night of 15 -4 -1979 at about 10 p.m. Dhani Ram (deceased) had gone to look after the reaped wheat crop in his field situated in the south - east of the village and after some time the informant Kishan Lal alongwith his brother Jamuna Prasad and Kali Charan s/o Juvan Ram and Taulari Ram s/o Popi Ram also proceeded towards the field where the reaped crops were lying. As soon as they came out of the village they heard sound of firing from the side of flour mill (chakki) of the appellant, Nathoo Lal. All of them proceeded towards the aforesaid flour mill -where Nathoo Lal armed with gun and Chintamani and Ganpat armed with lathies were standing. When the informant inquired as to why the fire was shot, accused Nathoo Lal did not give any reply. The informant thereafter alongwith his brother Jamuna Prasad, Kali Charan and Joley Ram proceeded towards the field where the deceased was not found. Further case of the prosecution is that the informant gave call to the deceased by calling his name loudly and also made search for him but no clue or whereabouts of the deceased was found. Thereafter, they heard two more sounds of gun shots from the side of chakki. Further case of the prosecution is that the informant alongwith his associates thereafter, returned to the house and next morning made search for Dhani Ram in the village as well as in the village of the relations but no clue was found and it was in the evening of 19 -4 -1979 when one Govind Kurmi r/o village Sindhauli informed the informant that a corpse wrapped in a blanket was lying in Bhakhra river in front of village Goola. The informant thereafter, alongwith his co - villagers Ram Narain, Lala Ram, Rewa Ram, Dal Chand Pothi, Jamuna Prasad Sher Singh and others went near the river and found the corpse lying in the river. Since the head and face of the corpse were open, the informant and other villagers recognized the corpse as of the deceased. Dhani Ram. Further case of the prosecution is that the accused Nathoo Ram and his family members and other accused had enmity with the family of the informant for the reason that Ram Swaroop, father of Kishan Lal (informant) had lodged two reports against Nathoo Lal in the year 1976. It is alleged that Bandhu Ram, cousin of the informant, had also lodged an FIR against them 6 -8 months prior to the date of occurrence for assaulting him and due to this reason they had enmity with the informant and his family on account of which the appellants had committed murder of his brother, Dhani Ram (deceased) and threw the dead -body in the river. According to the prosecution case the FIR was written by the informant's brother, Pothi Ram and thereafter, the informant went to the police station to lodge the same at about 9.30 p.m. on 19 -4 -1979. The investigation of the case was done by Sri B.S. Tyagi, S.I. (P.W. 6). He was posted as Second Officer at P.S. Meerganj, District Bareilly. After lodging of the FIR the Investigating Officer recorded the statements of first informant Kishan Lal, Sher Singh, Brij Lal and Head Moharrir, Jasveer Singh. Thereafter, he proceeded for Bhakhara river near village Moola alongwith Constable Ram Prasad Misra, Jitendra Pal Singh and Manohar Lal. There he saw the dead -body lying in the river at a distance of five paces from the western bank. The dead -body was wrapped in a blanket and its head and face were clearly visible. The first informant and constables accompanying him took out the dead -body and the first informant recognized that the dead -body was of his brother. Due to lack of sufficient light Panchayatnama of the dead -body could not be completed. On 20 -4 -1979 after sun rise he inspected the dead -body in the presence of Vijay Pal Singh, Lala Ram, Peetam, Sewa Ram, Ram Narayan and other and prepared Panchayatnama Ex. Ka. -6, Photo Lash Ex. Ka. -7 and Challan Lash Ex. Ka. -8. He also prepared Ex. Ka. -9 site plan of the place where dead -body was found. The dead -body was sent to Bareilly for post -mortem through constables Vijendra Pal and Ram Pal Misra. He completed all these works by 9.00 a.m. and thereafter the investigation of the case was taken over by P.W. 10 Sri Jay Pal Singh, Station Officer, P.S. Meerganj, District Bareilly. He has deposed that after taking investigation from B.S. Tyagi he went to the place of occurrence on 20 -4 -1979 and started investigation. He interrogated Smt. Ganga Devi wife of Ram Swaroop and others on the same day. Thereafter, he recorded the statement of Jamuna Prasad, Kali Charan and Toley Ram. Then he searched the houses of accused appellants Nathoo Lal, Ganpat and Chchadammi. He went at the Chakki of Naththoo Lal and made a search there also. He found an empty cartridge of 12 bore and prepared its Fard Ex. K -15. He recorded statement of Babu Ram and Khandari there. On 21 -4 -1979 he recorded the statement of Ram Swaroop, father of the deceased and Budhdhi Nai. On 11 -10 -1979 he recorded the statement of Michku witness and on the same day he submitted the charge -sheet Ex. Ka. -16.
(3.) THE post -mortem examination of the dead -body of Dhani Ram was conducted by P.W. 5 Dr. K.S. Tewari, Senior Radiologist, District Hospital Bareilly. The doctor found that the body was of average built. The body was swollen. The swollen skin was peeling off. The body was in an advanced stage of decomposition. The following ante -mortem injury was found on the dead -body of deceased Dhani Ram : Gunshot wound of entry 6 cm x 4 cm x chest cavity deep on the front of chest right side upper part just below clavicale and 6 cm from anterior axillary fold. Margins ragged blackening around margins present Directed downwards and slightly backwards.;