M.Chaudhary, J. - (1.) This is a Government appeal filed on behalf of the State from judgment and order dated 20th of December, 1983 passed by III Additional Sessions Judge, Muzaffar Nagar in sessions trial No. 334 of 1981 State v. Ram Pal and Anr. acquitting both the accused of the charge levelled against them under Section 302 IPC.
(2.) Brief facts giving rise to this appeal are that one Lal Singh had three sons namely Hari Singh, Jaswant Singh and Birbal Singh. Brij Pal Singh, Ved Pal and Gajendra are the sons of Birbal Singh. Surajpal, Netra Pal and Satvir Singh are sons of Jaswant Singh. Hari Singh had died some 10-12 years prior to the occurrence. Ram Pal and Ram Sharan are sons of Hari Singh. Smt Ratno is the wife of Jaswant Singh and Smt Jagbiri that of Ram Pal. It appears that till the death of Hari Singh the agricultural property was joint and all the three sons constituted joint family with their father Lal Singh. On the death of Hari Singh, Lal Singh partitioned the agricultural property among his sons Jaswant Singh, Birbal Singh and sons of Hari Singh, since deceased in equal share retaining 18 bighas of land for himself. In the family partition the plot on which there was a joint tubewell fell to the share of sons of Hari Singh. About two or two and a half years prior to the occurrence dispute started in the family as Ram Pal, son of Hari Singh started claiming tubewell as the sole property belonging to him and his brothers Sahendra Pal and Ram Sharan as the electric connection of the tubewell was in the name of his father Hari Singh. In the year 1980 Ram Pal alongwith his brothers filed a suit for permanent injunction in the Court of Munsif Muzaffar Nagar against Birbal Singh and Jaswant Singh and their sons restraining them from interfering in their exclusive possession and use of the tubewell alleging that it was their sole property. The suit was pending at the time of occurrence. Proceedings under Sections 107 & 117 of the Code of Criminal Procedure were also pending between them. Earlier Lal Singh executed a deed of will bequeathing his 18 bighas of land among all the sons of Birbal Singh, Jaswant Singh and Hari Singh equally as each of his sons had got three sons. However subsequently he executed an agreement of sale regarding his 18 bighas of land in favour of Brijpal Singh son of Birbal Singh and Satvir Singh son of Jaswant Singh for a consideration of Rs. 48,000. 00 having received Rs. 40,000. 00 and remaining sum of Rs. 8,000. 00 was to be paid at the time of registration of the sale deed but after one or two years of executing the agreement of sale Lal Singh died and therefore after the death of Lal Singh that 18 bighas of land was got mutated in the name of all the sons of Hari Singh, Jaswant Singh and Birbal Singh. However Brijpal Singh and Satpal Singh filed objections in those mutation proceedings but got the same dismissed and the matter was compromised between members of the family. Subsequently Ram Sharan filed a suit for partition of 18 bighas of land owned by Lal Singh which was pending at the time of the occurrence. In all revenue cases and the civil suit Birbal Singh used to do 'pairvi' for himself and Jaswant Singh and their sons which was not relished by Ram Pal and Ram Sharan. Inspite of the fact that civil suit was pending in respect of the tubewell Birbal Singh and his son Brij Pal Singh used to irrigate their field from the tubewell situate in the agricultural land which fell to the share of Ram Pal and his brothers. Two days prior to the occurrence Birbal Singh and his son Brij Pal Singh had irrigated their field from the tubewell and in the evening as they went to shut off the tubewell Ram Pal and Ram Sharan were present there and they told that the tubewell belonged solely to them and they would not permit them to irrigate their fields from their tubewell which resulted in an altercation between them and there was an exchange of hot words between Birbal Singh on one hand and Ram Pal and Ram Sharan on the other and then the latter had threatened Birbal Singh to see him. In the morning of 20th of June 1981 Birbal Singh alongwith his son Brij Pal Singh and brother Jaswant Singh were going from their village to Muzaffar Nagar market for purchasing household goods and as Birbal Singh alongwith his son and brother reached near the sugarcane field, Ram Pal taking his gun alongwith Ram Sharan came from the tubewell and Ram Pal asked Ram Sharan to shoot Birbal Singh as he used to do advocacy in litigation and immediately Ram Sharan whipped out countrymade pistol and fired at Birbal Singh hitting him at his chest and Ram Pal also fired with his gun in quick succession which also hit Birbal Singh. In the meanwhile Jaswant Singh and Brijpal Singh took position by laying down on the ground and escaped hurt. At that time one Jagdish was coming from the side of village Harsauli and Tejvir Singh, Harvir Singh, Amar Singh and Matroo Singh were also coming from the village side a few paces behind them. They challenged the assailants and then both of them fled away towards village Harsauli. Sustaining the fatal injuries Birbal Singh fell at the ridge of the field of Niranjan Singh situate by the side of chak road and died instantaneously. An empty cartridge was lying near the dead body. Immediately Brij Pal Singh, son of the deceased went back to his village and wrote report of the occurrence and then taking the tractor of his Tau Jaswant Singh alongwith Rajendra went to police station Titawi situate at a distance of six miles from the place of occurrence and handed over written report of the occurrence to the police there at 10:30 a.m. The police prepared check report on the basis of the written report and made entry regarding registration of the crime in the GD accordingly. Station officer Brij Mohan Misra who took up investigation of the case in his hand alongwith SI Rajendra Singh and police force proceeded to the scene of occurrence. On reaching at the spot SI Rajendra Singh drew inquest proceedings on the dead body of Birbal Singh at the directions of the investigating officer. He prepared inquest report (Ext Ka 14) and other necessary papers (Exts Ka 15 to ka 17) and handed over the dead body in a sealed cover alongwith necessary papers to constables Sukhbir Singh and Phool Kumar for being taken for its post mortem.
(3.) Autopsy on the dead body of Birbal Singh was conducted by Dr S.K. Sharma, Medical Officer District Hospital Muzaffar Nagar the same day i.e. 20.6. 81 at 4:30 p.m. which revealed below noted ante mortem injuries on the dead body : 1. Multiple gunshot wounds of entry over whole of chest and upper half of abdomen in an area of 14" x 12" each measuring 1/8 " x 1/8" with margins inverted. No tattooing or blackening was present around the wounds. 2. Two gun shot wounds of entry in an area of 1 1/2" x 1" over front of left upper arm middle third with margins inverted. No blackening or tattooing was present around the wounds.;