R.B.MEHROTRA, J. - (1.) Accused/appellants Ambikaa Prasad Chaubey, Ram Nagina Singh and Chandra Bhan Singh have preferred this appeal against the judgement and order of Sri. M.H.H. Siddiqui, Additional Sessions Judge. Gyanpur, Varanasi dated 4-9-1978 whereby they have been convicted under Section 302 read with Section 34, I.P.C. and sentenced to life imprisonment and also under Section 307 read with Section 34, I.P.C. and sentenced to 4 years rigorous imprisonment. The trial Court has ordered both the sentences against the accused/appellants to run concurrently.
(2.) The accused Vijay Bhan Singh who was brother, of accused/appellant, Chandra Bhan Singh was also charged for the aforesaid offences but during the pendency of the sessions trial in the Court of Sessions Judge, he was allegedly killed in a police encounter. The trial : consequently abated against him.
(3.) According to prosecution at about 5 p.m. on 12-4-1975 at village Khanpur, Police Station Gopiganj, Varanasi the aforesaid accused/appellants in furtherance of their common intention committed murder of Gajraj Singh and at the same time and place attempted to commit murder of Uharam Raj Singh P.W. 2 who happened to be the brother of deceased Gajraj Singh by firing at him with a country-made pistol. P.W. 2 Dharam Raj Singh made a report of the aforesaid occurrence at police station. Gopiganj on 12-4-1975 at 7 p.m. The police station is at about 5 miles from the place of occurrence. The first information report (which shall onwards be described as F.I.R. for the sake of convenience) was as follows : "It is submitted that I am resident of village Balanpur. Vijay Bhan Singh, a resident of my villageis involved in theft of a bicycle of village Bihanspur and my brother Gajraj Singh is witness against him. His evidence could not be recorded so far. Vijay Bhan Singh persistantly asked him not to appear as a witness otherwise it would not be good for him. There is a powerful gang of Bholanath Chaubey, Rama Kant Chaubey, Ambika Prasad Chaubey, Kallu Chaubey, Paras Nath Chaubey, Durga Chaubey, Vijay Bhan Singh, Chandra Bhan Singh and Chhotu Singh of my village. They were constantly giving threats. About a year back they had involved me and my brother Gajraj Singh in a murder case of village Swaleyganj. They were constantly looking for a chance to take the life of my brother Gajraj Singh. Myself, my two brothers and Vijay Bhan Singh and others were prosecuted under S. 107, Cr. P.C. by the police. For this reason they could not kill him. Some days back that case was dismissed. Since then Vijay Bhan Singh and others searching way day and night to kill my brother and my brother Gajraj Singh was running here and there to save his life. They stopped irrigation of our fields with the idea that if my brother goes for irrigating the fields, he might be killed then and there. For this reason our fields remained unirrigated. Today at about 5 p.m. my brother Gajraj Singh and myself both had gone to the house of Lalrnan Chaubey at village Sagar Raipur. Lalman Chaubey was not available at his house so we were returning to our house. In the way inside wheat field of Harish Chaubey son of Lalita Chaubey, resident of Sagar Raipur, Vijay Bhan Singh, Chandra Bhan Singh son of Jagannath Singh and Ram Nagina Singh resident of Darwasi who is the brother-in-law (wife's brother) of Chandra Bhan and Ambika Chaubey son of Jag Narain resident of Narain Chaubey who is of our village were found hidden. They were armed with guns and country-made pistols. On seeing us. they got up and Vijay Bhan Singh uttered that both of us would be killed being available. Chandra Bhan Singh and Vijay Bhan Singh fired as a result of which I sustained numerous pellet injuries on my chest and hand. We retreated back but they resorted to continuous firing. My brother Gajraj Singh fell down on receiving a gun-shot at some distance. We ran shouting from there, Ram Shanker Pandey resident of Jadho, Kailash Nath Pandey resident of Kalnua and Baij Nath Yadav resident of Balanpur who being passers by, saw the occurrence and shouted why they were playing such a havoc. Then the assailants retorted that they need not interfere and should have their own way otherwise they would also meet the same fate. On my alarm and on the sound of firing many residents of village Sagar Raipur Gandhi and Khanpur, who were working in the fields rushed to the spot, chased and challenged the assailants but they continued firing and escaped towards the east. Due to fear nobody could reach near them. My brother Gajraj Singh died as a result of gunshot. My report be entertained, matter be investigated and the culprists be got punished.";