U. S. Tripathi, J. - (1.) -This appeal has been directed against the judgment and order dated 16.12.1980 passed by IInd Additional Sessions Judge, Aligarh in Sessions Trial No. 189 of 1979 convicting all the appellants under Sections 302 read with 149, I.P.C. and alternatively under Section 302/34, I.P.C. and sentencing each of them to imprisonment for life. All the appellants were further convicted under Section 148, I.P.C. and sentenced to undergo R.I. for a period of two years. Appellant Sudhir was further convicted under Section 404, I.P.C. and sentenced to undergo R.I. for a period of one year. All the sentences were ordered to run concurrently.
(2.) THE prosecution story, briefly stated, was as under : Appellant Sudhir was uncle of appellant Jitendra. Shyodan Singh, who was Pradhan of village, had initiated a proceeding under Section 133, Cr. P.C. against Mahendra Singh father of appellant Jitendra Singh, as he had constructed a house on the public path. Deopal Singh was real brother of appellant Bhan Pratap. Deopal Singh was murdered and Shyodan Singh deceased was arrayed as accused in the said murder case. After trial, Shyodan Singh was acquitted of the said murder case. Shyodan Singh deceased had also initiated a case against appellant Kamal Singh and his brother for encroaching chak road, in which fine was imposed on Kamal Singh and others. On account of above litigations and murder, the appellants Sudhir, Jitendra, Bhan Pratap and Kamal Singh were having enmity with Shyodan Singh deceased. Chhidda appellant was of the party of above appellants. On the evening of 23.8.1978 at about 6 p.m. Omvir Singh (P.W. 1) along with Shyodan Singh deceased, Badam Singh deceased, Raghuraj Singh (P.W. 3), Anand Kumar (P.W. 4) and Ram Singh was going to his village from Sadhu Ashram Bus Stand. Badam Singh deceased was having cycle, but was proceeding on foot keeping cycle in his hand. Badam Singh and Shyodan Singh talking with each other were proceeding ahead. Shyodan Singh deceased was having his licensed double barrel gun. When they reached near field of Rup Singh, at a distance of about 40 paces from Sadhu Ashram Bus Stand, all the appellants armed with guns emerged out from nearby bushes. Appellant Jitendra Singh fired on Shyodan Singh and the shot hit him. When Badam Singh rushed to save him, appellants Bhan Pratap and Kamal Singh fired on him. In the meantime, three other persons also came out of the bushes. Two persons lifted Badam Singh and Chhidda and one another person lifted Shyodan Singh and proceeded towards the river. Observing the incident, Omvir Singh (P.W. 1) raised alarm and ran towards Sadhu Ashram. In the meantime, Chhidda appellant told that Shyodan Singh deceased was alive and shots were again fired on him. Thereafter, Sudhir appellant snatched gun of Shyodan Singh. Hearing shrieks of the witnesses several persons from Sadhu Ashram rushed challenging the appellants and then the appellants ran away towards river. Omvir Singh (P.W. 1) asked Raghuraj Singh (P.W. 3) to go to village and inform about the incident. Omvir Singh (P.W. 1) came to Sadhu Ashram Bus Stand and prepared a report (Ext. Ka-1) of the occurrence at the shop of Dal Chand and came to police station Harduaganj, where he lodged the report at 6.50 p.m. On the basis of written report, Chik F.I.R. (Ext. Ka-6) was prepared by Head Constable Mauli Ram (P.W. 5), who made an endorsement of the same at G.D. report and registered a case under Sections 302, 201, 148, 149 and 379, I.P.C. against the appellants and three unknown persons.
(3.) INVESTIGATION of the case was taken up by Bhanwar Pal Singh (P.W. 7). He came to the spot along with other police officers. Dead bodies of Badam Singh and Shyodan Singh were lying near field of Rup Singh. On the direction of the I.O., Sub-Inspector Shyam Singh conducted inquest of the dead bodies of Badam Singh and Shyodan Singh, sealed the same and sent for post-mortem. The I.O. took into possession one wrist watch and one cartridge, blood stained and simple earth from the place of dead body of Shyodan Singh. The I.O. interrogated Omvir Singh (P.W. 1), Anand Kumar (P.W. 4) and other witnesses. He also inspected place of occurrence and prepared site plan (Ext. Ka-22). Autopsy on the dead bodies of Badam Singh and Shyodan Singh were conducted on 14.8.1978 by Dr. L. K. Shukla (P.W. 6), who found following ante-mortem and internal injuries on the dead bodies. Post-mortem report of Shyodan Singh Ante-mortem injuries. (1) Gun shot wound of entry 1" 3/4" bone deep one and quarter inch away from right eye. Tattooing and blackening was present. Margins of the wound were inverted. (2) Gun shot wound of entry 1" 3/4" bone deep on right face over the mandible. Blackening and tattooing present and margins inverted. (3) Gun shot wound of entry 3" 2-1/4" muscle deep, on the neck with blackening and tattooing and the margins inverted. (4) Gun shot wound of entry 1/4" 1/4" muscle deep on left side of neck. (5) Gun shot wound of entry 1/4" 1/4" muscle deep on left shoulder back margins inverted. (6) Gun shot wound of entry 4/10" 4/10" muscle deep on left shoulder in the back. (7) Gun shot wound of entry 1/4" 4/10" on the left inner side of the forearm 3" below the axillary fossa. (8) Gun shot wound of entry 1/4" 1/4" muscle deep on right side of base of neck, 1/2" above the clavicle. (9) Lacerated wound 1-1/2" 1" bone deep, on right side back of occipit. Internal examination showed that both lungs were lacerated and congested. There was fracture of parietal bones on both sides, frontal bone, occipital bone and base of skull. Brain membranes were lacerated and congested. Thoracic cavity was full of blood. Both lungs were lacerated and congested. Stomach contained about 500 ounce semi-digested food. Cause of death was shock and haemorrhage and coma resulting from ante-mortem injuries. Two wadding pieces recovered from left side of neck. One big pellet recovered from left back. One pellet was recovered from middle back, one pellet was recovered from right post axillary fossa and 44 pellets were recovered from brain. Post-mortem report of Badam Singh Ante-mortem injuries. (1) 3 gun shot wound of entry, each 1/4" 1/4" through and through on the right front and middle of the arm. No blackening. (2) Two gun shot wounds of exit 6/10" 6/10", through and through on the back of right middle arm. (3) Gun shot wound of entry 1/4" 1/4" muscle deep, on the right front of the middle forearm. (4) Gun shot wound of entry 1/4" 1/4" muscle deep on the right inguinal region. (5) Gun shot wound of entry 1-1/2" 1" bone deep on the back of right hip in the middle, with communited fracture of upper part of femur bone. (6) Gun shot wound of entry 1/4" 1/4" through and through on the left thigh in the middle. (7) Gun shot wound of exit 1/4" 1/4" through and through, on the left thigh on the front. (8) Gun shot wound of entry 4" 3" muscle deep on the left hip on the back near anal cave. Internal examination showed fracture of right humerus and right femur in upper part. The left side of heart was empty and there was clotted blood in the right. Abdominal cavity contained blood and faecal matter. Large intestine was lacerated at places. The bladder was ruptured. One pellet was recovered from right back of hip. 26 pellets were recovered from intestine and abdominal cavity. 15 pellets recovered from muscle of left hip. Cause of death was shock and haemorrhage resulting from ante-mortem injuries.;