M.Chaudhary, J. - (1.) This is an appeal filed by the accused appellants from judgment and order dated 4th of January 1982 passed by XI Additional Sessions Judge Kanpur in Sessions Trial No. 293 of 1981 State v. Ram Singh connected with Sessions Trial No. 141 of 1981 State v. Sobaran Singh and Ors. convicting accused appellants Ram Singh, Jagannath Singh and Jai Singh under Section 147 IPC and accused Ram Babu, Sobaran Singh, Shyam Babu Singh and Ram Bilas Singh under Section 148 IPC and convicting all of them under Section 302 read with Section 149 IPC and sentencing accused Ram Singh, Jagannath Singh and Jai Singh to undergo one year's rigorous imprisonment and imprisonment for life respectively thereunder and accused Ram Babu, Sobaran Singh, Shyam Babu Singh and Ram Bilas Singh to undergo two years' rigorous imprisonment and imprisonment for life respectively thereunder. They were acquitted of the charge under Section 323 read with Section 149 IPC
(2.) Brief facts giving rise to this appeal are that at about 7: 30 a.m. on 28th of December 1980 Sheo Ratan Singh lodged, an FIR at police station Shiv Raj Pur District Kanpur that prior to one year of the incident Hira Singh had filed a complaint against Ram Babu Singh and Shyam Babu Singh under Section 307 IPC in which Dan Singh appeared as a witness against both of them and since then Ram Babu Singh and Shyam Babu Singh started nursing grudge against him. Some 2-3 days prior to the occurrence an altercation took place between Dan Singh on one hand and Ram Babu Singh and Shyam Babu Singh on the other and Ram Babu Singh had threatened Dan Singh that they would avenge themselves very soon On 27th of December 1980 Sheo Ratan Singh alongwith Dan Singh and his wife and one Mahadeo Singh had gone to Shiv Raj Pur. Dan Singh and his wife went to the house of Kirat Singh but Kirat Singh was not at his house as he had gone somewhere. At about 3:30 p.m. that afternoon Sheo Ratan Singh, Mahadeo Singh and wife of Dan Singh returned back in the buffalo- cart of Chhotey Singh, and Dan Singh stayed there telling that he would return afterwards as he wanted to see Kirat Singh in connection with the marriage of his daughter. As Sheo Ratan Singh alongwith Mahadeo Singh and wife of Dan Singh reached near Gauri Abhaipur Dan Singh also reached in the bullock-cart of Surya Bhan Singh and as they reached at the outskirts of village Bhatpura Surya Bhan Singh took his bullock-cart ahead of the buffalo-cart, and at about 6:00 p.m. as they reached near the chchikura tree Sobaran Singh armed with countrymade pistol alongwith Ram Babu Singh, Shyam Babu Singh, Jagannath Singh, Ram Bilas Singh and Jai Singh armed with lathis, axes and pharsa emerged from the mustard field and Ram Babu Singh asked Surya Bhan Singh to stop the bullock-cart then and there and as Surya Bhan Singh tried to run the bullock-cart Sobaran Singh shouted to drag Dan Singh therefrom. In the meanwhile Dan Singh got down and tried to run away for his life that Ram Babu Singh fired at him and Sobaran Singh, Jagannath Singh, Ram Singh and Ram Bilas Singh gave him lathi and pharsa blows and at that time Jai Singh was shouting that they would not let him go alive and immediately Sobaran Singh and Ram Bilas Singh kept lathi at his throat and Jai Singh and Shyam Babu Singh gave axe blows to him and Ram Babu Singh again fired at him with countrymade pistol. Sobaran Singh, Jagannath Singh and Ram Babu Singh also gave blows to Suiya Bhan Singh as he tried to intervene. On hearing the hue and cry some of the co-villagers including Insaf Ali, Kehar Singh and Babonu Singh rushed to the scene of occurrence and then the assailants fled away firing shots in order to scare them away. By that time Dan Singh succumbed to the fetal injuries sustained by him. Sheo Ratan Singh also mentioned in the written report that he and the witnesses recognized the assailants well as it was the time of sunset but there was sufficiently enough light to recognize the assailants, that on account of fear they could not go to the police station to lodge an FIR soon after the occurrence and that they alongwith other co-villagers guarded the dead body for the whole night. The police registered the crime and made entry in the GD regarding registration of the crime accordingly (Exts. ka 10 & 11 ) SI Yogendra Singh to whom investigation of the crime was entrusted recorded statement of Sheo Ratan Singh, the first informant at the police station itself. Then he went to the scene of occurrence and drew inquest proceedings on the dead body of Daa Singh and prepared the inquest report (Ext Ka 14) and other necessary papers (Exts Ka 17 to Ka 19). Then he entrusted the dead body in a sealed cover alongwith necessary papers to constables Lakhan Lai and Maharani Din Mishra for being taken for its postmortem. He recorded statement of Sav i Devi, wife of the deceased and inspected the site and prepared its site plan map (Ext Ka 20). He also collected blood stained and simple earthy and picked up pieces of three teeth, two empty cartridge and pellets lying at the scene of occurrence and prepared their memos (Ext Ka 2 & Ka 4) he also collected shoes of the deceased and broken spectacles and prepared their memos (Exts Ka 3 and Ka 5). He also recorded statements of other witnesses.
(3.) Autopsy on the dead body of deceased Dan Singh was conducted by Dr V.K.Dadhich, Medical officer TB Clinic Kanpur on 29th of December 1980 at about 3:00 p.m. which revealed belownoted ante mortem injuries on the dead body: 1. Incised wound on left side of head 4 cm x 1 cm x muscle deep on the lateral side 7 cm above left ear. 2. Incised wound on left side of head 7 cm x 1 cm on lateral side muscle deep 4 cm above left ear and 2 cm below injury No. l. 3. Incised wound 5 cm x 2 cm x bone deep extending from mid line to lateral border on right side on right eye brow. 4. Incised wound 5 cm x 2 cm x muscle deep 3 cm above left eyebrow on forehead. 5. Fire arm wound of entry 1 cm x 1 cm x cavity deep on the nose 3 cm below roqt of nose, blackening present around the wound in an area of 14 cm. 6. Incised wound 9 cm x 2 1/2 cm x bone deep left side of lower face extending 2 cm right from mid line to left angular mandible. 7. Incised wound 13 cm x 2 14 cm x bone deep just below the chin on upper part of neck 2 cm away from right lobule of ear to 4 cm away from left lobule with evulsion of trachea. 8. Fire arm wound of entry 1 14 cm x 1 cm muscle deep on left side of neck 8 cm below left lobule of ear. Area of blackening 4 cm on medial side and 1 cm lateral side. Direction of wound laterally and upwards. One pellet found under the injury. 9. Two burns on left clavicle in mid line area 1 cm x 1 cm each and 1 cm apart. 10. Contusion in an area of 15 cm x 6 cm on left upper chest and left shoulder 4 cm above left nipple. 11. Contusion on right upper chest and right shoulder in area of , 10 cm x 3 cm. 12. Abrasion 2 cm x 1 cm on the back of left forearm 3 cm above ulnar process. 13. Incised wound 1 cm x 1/2 cm bone deepen back of right hand just below ring finger fracture of 4th right metacarpal bone. 14. Three abrasions in area of 7 cm x 4 cm measuring 1 cm x 14 cm to 2 cm x 1 cm on lower abdomen left side just above anterior superior iliac spine and 2 cm away from umbilicus. 15. Multiple abrasions in area of 13 cm x 5 cm on lateral aspect of left knee joint. 16. Two abrasions on lower part of left knee in an area of 4 cm x 1 cm each measuring 1 cm x 1 cm on knee Joint. 17. Abrasion on left side of back 1 cm x 1 cm just below lower angle of scapula.;