- (1.) M. C. Jain, J. Tejpal and his son Ram Kumar were tried in Sessions Trial No. 114 of 1978 before the III Additional Sessions Judge, Ghaziabad for the murder of Onkar Singh. They came to be convicted under Section 302 read with Section 34 I. P. C. and sentenced to undergo life imprisonment by judgment dated 5th December, 1981 impugned in this appeal filed by them.
(2.) WE should relate the relevant facts. The deceased Onkar Singh was the own brother of the accused appellant Tej Pal. The incident occurred in between the night of 18/19-3-1978 at about 1. 30 A. M. in village Didauli, Police Station Murad Nagar, District Ghaziabad. The FIR was lodged on 19-3-1978 at 6. 45 A. M. by Jagannath PW 2 another brother of the deceased and accused Tej Pal. In the fateful night Jagannath PW 2, his brother Onkar Singh and Jai Pal Singh PW 1 (son of Jagannath) were sleeping in their Dukaria (room ). At about 1. 30 O'clock, the two accused appellants accompanied by two other unknown persons entered there. A lantern was glowing in the room. Tej Pal was armed with a Pharsa; Ram Kumar had a country made pistol and their unknown companions were having lathi and spear. Ram Kumar pulled the cloth from the face of Onkar and then all the four culprits aught hold of him (Onkar) and started taking him away. Jagannath and his son Jai Pal asked them as to where they were taking him. But, mouthing abuses, they threatened them of their lives. They took away Onkar out of Gher. Jagannath and his son raised alarm and many persons from the village assembled. Jagannath and villagers had torches with them. Taking Onkar on the Chak-road. Tejpal assaulted him with Pharsa and Ram Kumar opened shot on his chest. Their remaining two companions assaulted him with lathi and spear. Onkar Singh fell down and died. The accused appellants and their two remaining companions made their escape; good towards western side. Jagannath got the report scribed by Jai Pal and signed the same after it was read over to him. Then he lodged it at the Police Station. The investigation followed as usual all the hands K. K. Gautam PW 3 who was then Station Officer of Police Station Murad Nagar. Autopsy on the dead body of the deceased was performed by Dr. M. P. Agarwal on 20-3-1978 at 3 P. M. The deceased was aged about 35 years and about 11/2 day had passed since he died. The following ante mortem injuries were found on his person: (1) Incised wound 12 cm x 4 cm bone cavity deep on back of head. (2) Incised wound 5cm x 1 cm x bone deep, 4 cm. above injury No. 1. (3) Lacerated wound 3 cm x 1 cm x bone deep on left side forehead, just above eyebrow. (4) 'l' shaped incised wound 8 cm x 1. 5 cm bone deep on right side head, 9 cm above right ear. (5) Incised wound 10 cm x 2 cm x bone deep, left side of head, 6 cm above left ear. (6) Gunshot wound of entry 2 cm. in diameter x 2 chest cavity deep on the front of chest right side, 9 cm below right nipple at 4 O'clock position. Blackening and charring present. (7) Abrasion 2 cm x 1 cm on scapular region. (8) Gunshot wound of 3. 5- cm x 1. 5 cm on the outer part right side, abdomen upper part. The cause of death was shock and haemorrhage resulting from ante-mortem injuries.
(3.) THE defence was of denial According to the accused appellants, Jagannath lodged false report against them so as to deprive than of their share in the property of Onkar as he wanted to usurp his estate. In support of its case, the prosecution examined Jai Pal Singh PW 1 and his father Jagannath PW 2 as eyewitnesses. K. K. Gautam PW 3 was the Investigating Officer and Constable Hari Prakash PW 4 had taken the dead body of the deceased from the spot for pest mortem. The genuineness of the post mortem report was admitted by the defence side and as such the Doctor was not produced. The prosecution case and the evidence appealed to the trial Judge who recorded the impugned judgment.;