- (1.) THIS appeal is directed against the judgment and order dated 31.7.1982, passed by II Additional Sessions Judge, Barabanki in Sessions Trial No. 313 of 1981, convicting appellants Babboo Singh and Suresh Singh under Section 302 IPC and sentencing them to undergo imprisonment for life. Appellants Babboo Singh, Suresh Singh and Ram Khilawan were also convicted under Section 148 IPC and sentenced to undergo rigorous imprisonment for two years. Appellant Ram Khilawan was convicted under Section 302/149 IPC and sentenced to imprisonment for life. Appellants Suryabhan Singh, Babu Ram alias Baba Tewari, Ram Sumiran and Ram Lakhan were convicted under Sections 302/149 IPC and sentenced to undergo imprisonment for life and under Section 147 IPC, they were sentenced rigorous imprisonment for one year.
(2.) DURING the pendency of appeal, all the appellants except Suresh Singh died, hence their appeal stood abated. This appeal before us survives only against appellant Suresh Singh.
(3.) BRIEFLY stated, according to the prosecution case, there was an old enmity between Shiv Pyare Misra deceased on the one hand and Babboo Singh and others (accused) on the other. It is alleged that on 25.10.1980 at about 4 p.m, deceased Shiv Pyare Misra and his son Krishna Gopal and brother Ram Samujh were going from their house in village Boorhgaon, P.S. Ram Nagar, District Barabanki to their paddy field situate towards north of their house and when they reached Bansi Talab near the Marha of Tarikas, accused Suryabhan, Khilawan, Buddhu, Ram Sumiran, Ram Lakhan and Babu came out from behind the Khajoor bushes towards west of the pond. Khilawan was armed with a SBBL gun of .12 bore and other accused were carrying Lathis. They challenged Shiv Pyare, who ran towards the Marha of Tarikas Accused Babboo Singh and Suresh Singh then came out from the cover of Marha. Babbo Singh had a DBBL gun and Suresh Singh had a SBBL gun. The complainant and his uncle Ram Samujh, in the meantime, ran towards the road. Accused Babboo Singh fired two shots from his DBBL gun at Shiv Pyare. Suresh Singh also fired from him gun. Shiv Pyare fell down. It is further alleged that the other accused persons also gave Lathi blows and assaulted the deceased with the butts of their guns. The complainant and his uncle raised alarm, whereupon Surya Lal, Bans Lal, Ram Chandra and others came there and saw the occurrence. Shiv Pyare died on the spot. The first information report of the incident Ext. Ka 1 was scribed by complainant Krishna Gopal and the same was lodged at P.S. Ram Nagar the same day at 7 p.m. On the basis this report, chik report Ext. Ka 3 was prepared and the crime was entered in G.D. Rapat No. 19, which is Ext. Ka 4. The Investigating Officer recorded the statement of the complainant Krishna Gopal in the night. On 26.10.1980, he recorded the statement of Ram Samujh and prepared Panchayatnama Ext.Ka 5, photo -lash Ext.Ka 6 and challan -lash Ext.Ka 7. He inspected the spot and prepared site -plan Ext.Ka 6. He also found blood, Tikli, pellets and wads on the spot. He also collected samples of blood -stained and plain earth vide memo Ext.Ka 9. After completing the investigation, he submitted charge -sheet Ext.Ka 10 against the accused. Dr. R.C.Gupta P.W.3 conducted post -mortem examination on the dead body of Shiv Pyare on 27.10.1980 at 2 p.m. He found the following ante -mortem injuries on the dead body: 1.Gun shot wound on left side of face extending from just above the left ear to right side cheek, 21 cm x 5 cm. Left eye was extensively lacerated. Bone and brain under the injury had been disintegrated. 2.Gun shot wound just below left ear 3 cm x 2 cm with blackening and scorching. 3.Gun shot wound on left side chin, 3 cm x 1 1/2 cm with blackening and scorching. 4.Gun shot wound on left side of chest, 8 cm away from left nipple, 2 1/2 cm x 2 cm x chest cavity with blackening and scorching. 5.Gun shot wound on left side leg in the middle, 2 cm x 1 1/2 cm with laceration.;