- (1.) M. C. Jain, J. The two real brothers, namely, Raj Bahadur and Jagdish Prasad have preferred this appeal against the judgment and order dated 28-8-1997 passed by Sri K. Z. Khan, the then I Additional Sessions Judge, Sahjahanpur in Sessions Trial No. 314 of 1996. Each of them has been convicted under Section 302 read with Section 34 I. P. C. and sentenced to life imprisonment. It is an expedited appeal.
(2.) THE incident took place on 22-10-1995 at about 4. 30 p. m. in village Sitapur within the Police Station Khutar, District Sahjahanpur and the F. I. R. was lodged the same day at 6. 30 p. m. by an eyewitness Ram Chandra PW 1 (father of the deceased Pradeep Kumar ). THE distance of police station from the place of incident was about 7 kms. THE prosecution case surfacing at the trial was as follows: The informant Ram Chandra had sugarcane crushing machine (Kolhu) in village aforesaid as also a weighing machine. The deceased Pradeep Kumar, aged about 17 years, was there at the weighing machine. At about 4. 30 p. m. on the fateful day, the accused appellant Raj Bahadur resident of the same village came to Pradeep Kumar and asked him to weigh his sugarcane. Pradeep Kumar asked him to first clear the previous outstanding dues. Raj Bahadur got enraged and started hurling abuses on Pradeep Kumar. Pradeep Kumar asked him not to do so. Exchange of hot words took place between the two. The informant Ram Chandra supported his son Pradeep Kumar in the wordly duel. Raj Bahadur, however, held out that the head of Pradeep Kumar had got swollen and required to be set right. Saying so, Raj Bahadur left towards his house. About 10 minutes later, Pradeep Kumar started going to his house from his Kolhu. When he reached near the Pasar of Mahesh Chandra, the two accused appellants appeared therefrom their house in southern side. Raj Bahadur was armed with DBBL gun and Jagdish Prasad had a rifle. Both of them started hurling abuses on Pradeep Kumar and fired one shot each. The informant Ram Chandra was witnessing the incident from his Kolhu and he raised shouts. Rakesh, Hardwari Lal and Rajendra Prasad PW 2 were also present at his Kolhu at that time. He with them rushed towards the scene to apprehend the accused appellants. The informant could cover a distance of 20-25 paces. Raj Bahadur opened another shot on Pradeep Kumar which hit him. The accused appellants then ran away towards their house and his son dropped down dead. He wrote down the F. I. R. and lodged the same at the police station. The investigation was started by R. P. Singh, S. I. PW 5, proceeded ahead by Nawab Singh, S. O. PW 6 and concluded by G. S. Verma. S. O. PW 7. On reaching the spot, the first Investigating Officer prepared the inquest of the dead-body of the deceased and completed other formalities. Thereafter the dead-body was sent for post-mortem. It was conducted on 23-10-1995 at 4 p. m. by Dr. Rajesh Rai PW 8. The deceased was aged about 17 years and about one day had passed since he died. The following ante-mortem injuries were found on his person: (1) Gunshot wound of entry 3 cm x 2. 5 cm x through and through situated on outer aspect of left upper arm, 16 cm below the left shoulder joint. Margins inverted. Blackening and tattooing present around the wound. (2) Gunshot wound of exit 4 cm x 3 cm x connected with wound No. 1, situated on inner aspect of left upper arm, 3 cm below the left axilla. Margins everted. (3) Gunshot wound of entry 4 cm x 3. 5 cm x chest cavity deep, situated 3 cm below the left axilla. Margins were inverted. No blackening or tattooing seen. On internal examination, 3rd and 4th left ribs were found fractured. Pleura was lacerated on left side. Left lung and pericardium were lacerated. 41 small metallic pellets were recovered from left lung, heart and thorasic cavity. The cause of death was shock and haemorrhage due to ante-mortem injuries.
(3.) ON 23-10-1995 the first Investigating Officer had recovered one empty cartridge of 12 bore & Anr. of 315 bore from the spot. The same were sealed by him. The blood stained and simple earth were also collected by him from the spot. The second Investigating Officer Nawab Singh had arrested the accused appellants on 24-10-1995. The licensed D. B. B. L. gun of 12 bore was recovered from the possession of Raj Bahadur and licensed rifle of 315 bore from the possession of Jagdish Prasad. They were sent for scientific examination and for comparison with the empty cartridges recovered by the first Investigating Officer from the spot. The defence was of denial and false implication due to enmity. Jagdish Prasad accused stated under Section 313 Cr. P. C. that one Jagdish Dhobi had earlier been murdered in which Rajendra Prasad PW 2 was an accused. He and Raj Bahadur had done pairvi in that case against Rajendra. So, Rajendra got them falsely implicated, he being Mausera brother of Ram Chandra. Another ground of the alleged false implication was that the mother of the accused appellants and the informant Ram Chandra's wife had fought the election of Pradhan. It was the source of another enmity between the two sides.;