- (1.) PALOK Basu, J. These two appeals have been preferred against the judg ment and order passed by VIth Addl. Sessions Judge, Meerut on 16-11-19m in Sessions Trial No. 457 of 1980 whereby the appellants Goverdhan, Mulesh-pal and Ompal have been convicted under Section 302/34, IPC and sentenced to life imprisonment while appellants Muleshpal and Ompal have been further convicted under Section 394/34, IPC and sentenced to three years' R. I. both sentence have been ordered to run concurrently.
(2.) TWO charges were framed against the appellants during the trial. First was that on 22-4-1980 at about 6. 15p. m. near the brick-kiln in the jungle (Fields) of Village Kanoda situated on G. T. Road, Police Station paper tosned District Meerut they intentionally committed the murder of Omvir by firing at him thereby committed an offence punishable under Sec tion 302/34, IPC second charge against them was that in furtherance of the common intention the appellants robbed Omvir decease of his catridges and also his licensed rifle and thereby committed an offence punishable under Section 394/34, IPC. During the trial 12 witnesses were examined out of whom PW 1, Kiran Pal Singh, PW 3, Prahlad Singh, PW 4, Kiran Singh and PW 5 Bhisham Singh are witnesses of fact whereas the other witnesses are formal in nature whose testimony shall be discussed little while later. The prosecu tion case in short, is as follows : PW 1 Kiranpal Singh is a resident of Village Girdharpur, Police Station Pilakhwa, District Ghaziabad. The deceased Omvir was his own brother. PW 3 Prahlad Singh is the maternal cousin of these two on 22-4- 1980 around 6. 15 p. m. PW 1 informant Kiranpal Singh and PW 3 Prahlad Singh were riding on the Motorcycle bearing registration No. USP 5381 belonging to Prahlad Singh and the deceased Omvir was riding on his Motorcycle bearing registration No. D. H. V. 5594 and were proceeding to Manglore side. The deceased was carrying with him his licensed rifle. When they reached near about brick-kiln on the G. T. Road in Village Walidpur around the fields of Village Kanoda the informant's Motorcycle was moving a little ahead from that of the deceased. In the meantime yet another Motorcycle on which appellant Goverdhan of Village Tumrail and appellants Muleshpal and Ompal of the Village of the informant were sitting came at a fast speed and over took and reached near the two aforesaid Motorcycle and fired from behind on them. The informant turned back and found that his brother Omvir had been hit by the firing and had fallen down from the Motorcycle. Frightened at this informant speeded up his Motorcycle raising hue and cry and reached the police out-post Sakauti and sought police help From the said police out-post they could get one constable along with whom the informant and his cousin came to the spot where they found that Omvir was lying dead and his Motorcycle was lying on the way side. Bhisham Singh son Prahlad Singh and Kiran Singh son of Ranjit Singh, residents of Village Daurala were standing there (along with Jivan and Vaidya, son of Nityanand) who told him that the three boys (Teen Larke) who were on the Motorcycle have killed this man and carried away his rifle and cartidges and then drove away hastily towards Meerut side. It is said that Kiranpal Singh then made Prahlad Singh and others lo stay at the spot, got a written report prepared through Prahlad Singh and reached to the Police Station Daurala and lodged an FIR at 7. 30 p. m. When the report was brought to the Police Station Daruala PW 2 Balbir Singh, constable noted its contents in the general diary, true copy of which has been proved as Ext. Ka-3 while the said FIR has been proved by PW 1 Kiranpal Singh. As Ext. Ka-1, PW 6 Rajvir Singh, Sub-Inspector was present when the FIR was lodged at the Police Station Daurala. He took up investigation, recorded the statement of constable Balbir Singh and rushed up to place of occurrence. On reaching there he prepared a memorandum of the blood-stained earth and plain earth proved as Ext. Ka 4. He found from the deceased his fire arm licence Ext. 1, two spectacles Exts. 2 and 3, one wrist watch Ext. 4 three lottery tickets Exts. 5 to 7 five empty cartridges 38 bore, Exts. 8 to 12, 3 empty cartridges 315 bore Exts. 13 to 15, one live cartri dges 315 bore Ext. 16, one bullet of rifle Ext. 17, currency notes of Rs. 450 Ext. 18, a pair of sandle Ext. 19, one sealing of the rifle Ext. 20 for these articles he prepared memorandum Ext. Ka-5. He also then prepared an in quest report proved as Ext. Ka-6. He prepared photo nash and challan nash Exts. Ka 7 and Ka 8 respectively whereafter the deadbody was sealed and handed over to constable Satyapal and Rajendra Singh whose affidavit have been filed during the trial Court which went unchallenged. The dead body of Omvir reached Medical College, Meerut at 11 p. m. through the constables.
(3.) DR. R. B. L. Saxena PW 9 was posted as Medical Officer as post mortem duty. He conducted the post- mortem examination of deceased Omvir Singh. Constables Rajendra Singh and Satyapal identified the body. The age of the deceased was about 40 years. His body was overage well built. He found the following injuries: (1) Lacerated wound 2. 5cm. x 2. 00cm x cramial cavity deep with inverted and braised margins, directed towards left involving tragus and external auditory meatus of Rt. car, scorching present. This wound is communicating with a lacerated wound 6 cm. x 3 cm, cramial cavity deep with everted margins, on left side back of head 8 cm. behind left ear. Brain matter is coming out through this wound. (2) Lacerated wound 9 cm. x 22 cm x 30 cm rt. side neck, 9 cm. below lobula of Rt. ear with inverted margins and directed towards left, with extermive laceration of muscles and vessels underlying the wound and communited fracture of bodies of 3rd and 4th carmial vertebra and communicating with a lacerated wound 4 cm. x 2 cm. with inverted margins on left scapula region, 4 cm. from middle and 42 cm. above waists line. No scorching or tatteering. (3) Lacerated wound 4 cm. x 3. 5 cm. with inverted and braised margins on back of left shoulder directed towards right and communicating with a lacerated wound 9 cm. x 7 cm. with ever ted margins on left side chest, 12 cm. above left nipple. No scorching or tatteeing. (4) Lacerated wound 1 cm. x 0. 5 cm. with inverted margins, directed towards left, left side chest 13 cm, above and inner to left nipple at 10 o'clock position and communicating with a lacerated wound 2. 5 cm. x 2 cm. with everted margins is left side chest 12 cm. above left nipple is 11 o'clock position No scorching or tatteeing. (5) Lacerated wound 1 cm. x 2 cm. x 7 cm. with inverted margins on outer aspect of front of left upper arm, 17cm. above bond of left elbow and communicating with above wound 9 cm x 7 cm. on left side chest 12 cm. above left nipple (injury No. 3 ). No scorching or tatteeing. (6) Lacerated wound 7 cm. x 4 cm. bone deep on outer aspect of left wrist and then on eminance of left hand with communicated fracture of lower end of left radius outer two carpal bones and first mata carpal and dislocation of 1st. Mata carpophylongeal joint. Margins bruished. No scorching or tatteeing, (7) Lacerated wound 1 cm. x 1 cm x skin deep on left side back-middle, 3 cm. from middle No scorching or tatteing. (8) Lacerated wound 0. 5 cm. x 8 cm. within inverted margins, on outer side Rt. thigh, 30 cm. above Rt. knee, directed upwards and backwards when a hard modular structure is felt; a bullet is removed from underneath the skin and sealed. No scorching or tatteeing. (9) Abraded contusion in an areas 30 cm. X 10 cm. on Rt. side back 6 cm. above waist line. (10) Abrabed contusion 2 cm. x 2 cm. on top of right shoulder. (11) Abrasion 2 cm. x 1-5 cm. on inner side of back of Rt. elbow. (12) Abrasion 1 cm. X 0. 5 cm. on thinder aminance of right hand. (13) Abrasion in an area 6 cm. X 4 cm. on part of right knee. (14) Abrasion 2. 5 cm. X 2. 00 cm, on outer aspect of right ankle. (15) Abrasion 4 cm. X 1 cm. on dorsum of 5th Rt. toe and adjoining part of foot. (16) Abrasion 0. 5 cm. X 0. 5 cm. on dorsum of 4th Rt. toe. (17) Abrasion 2 cm. X 1 cm. on left sole at the base of great toe. (18) Abraded contusion 8 cm. x 3 cm. on upper part of left scapular region. (19) Multiple abrasion in an area 6 cm. X 2. 5 cm. on chin. (20) Communited fracture of upper end and heard of left humerus and adjoining part of scapula underneath the wound 9 cm. X 7 cm. described in injury No. 3. Internal Injuries (1) Communited fracture of right temporal, right parietal bone, left parietal and occipital bones of the skull. Membrance underneath the fractured bones were lacerated and there was extensive laceration of posterior half of both. Carebral hemispheres. There was also fracture of right enterior, right middle and posterior carnial fosses. (2) The stomach contained about 50 grams of semidigested food. The doctor was of the opinion that the death was caused due to shock and haemorrhage. The post- mortem report is Ext. Ka-19 and the carbon copy is Ext. Ka-20. One pant, one underwear, one peti, one Baniyan and one shirt, which the body was wearning, were handed over by him to the constables. The injuries with inverted margins were caused by fire arms by piercing of the missible and all the inverted margins have their corresponding exist wounds. All injuries, except abraded wounds, were caused by fire-arms. More than one fire-arm was used. Scorching was present, the wound could have been caused within a range of 4 ft. and in other cases the shot was fired from a distance of more than 4 ft. Abrasions and abraded contusions may have been caused by the fell of the motorcycle or as a result of friction with hard substance. The internal damages in the body was the result of the anti-mortem injury. The injuries caused by fire-arm were sufficient to cause the death. These were the opinion given by the doctor. The above statement is given by the doctor expressing the opinion of his post-mortem examination. The post-mortem report is Ext. Ka-19.;