- (1.) The present criminal appeal is directed against the judgement and order dated 24.01.1983 passed by learned III Additional District & Sessions Judge, Budaun in Sessions Trial No. 460 of 1980 pertaining to Case Crime No. 177 of 1979 whereby appellant-Sardar was convicted and sentenced under Section 302 I.P.C. read with Section 149 Indian Penal Code (hereinafter referred to as I.P.C.) to suffer imprisonment for life and one and a half year rigorous imprisonment for the charge under Section 148 I.P.C. By the same judgement appellant-Lakkhi was also convicted and sentenced under Section 302 I.P.C. read with Section 149 I.P.C. to suffer imprisonment for life and one year rigorous imprisonment for the charge under Section 147 I.PC. The trial Court after scanning the evidence and material available on record had acquitted the co-accused Raghubir, Harpal and Sohan Pal under Section 148 and 302 read with Section 149 I.P.C. but no appeal has been filed against acquittal.
(2.) The prosecution story in nutshell is as follows:- A written report dated 22.09.1979 was submitted by the informant Hardwari Singh S/o Shyam Lal, resident of village Bichola Bhoor P.S. Gunnaur, District Budaun to the concerned Station House Officer (hereinafter referred to as the S.H.O.) mentioning therein that on 22.09.1979 at about 5.00 P.M. his son-Hari Singh was digging earth from his plot situated near the pond of the village in order to construct the ridge of the said plot. At that time informant and his another son-Banwari were also digging 'Ghuiya' in the same field. In the meantime, Khushi Ram S/o Ranjeet armed with a country-made pistol, Bhagwan Singh s/o Khushi Ram armed with a gun, Lakkhi son of Ganesi armed with a lathi, Sardar son of Naubat armed with a country-made pistol, all residents of village Bichola Bhoor and Raghubir (Mukhiya) son of Harnam Singh resident of village Pataria armed with a single barrel gun, Harpal son-in-law of Khushi Ram armed with a country-made pistol and Sohan Lal, father of Harpal armed with a double barrel gun (both residence of village Saitua under police station Rajpura) arrived at the place of occurrence from north-east side and Khushi Ram exhorted that Hari Singh who is the leader in his family be killed. Hari Singh tried to escape away but the accused persons opened fire at him with their respective weapons. Hardwari Singh (P.W.-1) raised hue and cry. Upon hearing the cries, witnesses, namely, Karroo (P.W.-2), Rohan (P.W.-3) and one Ram Charan all residents of village Bichola Bhoor arrived there and challenged the accused persons, upon which accused threatened the witnesses with their firearms. Hari Singh received fire arm injuries caused by the accused, as a result of which, Hari Singh fell down on the spot and died instantaneously. Accused persons ran away from the place of occurrence towards the southern direction. The informant claimed himself as an eye witness and had stated that he knows all the accused persons.
(3.) According to the prosecution, the accused persons committed murder of Hari Singh due to hostility because one Kehar, a cousin of Khushi Ram, was murdered prior to this occurrence and Hari Singh (deceased), his father Hardwari Singh (informant) and one Satya Ram were facing trial in above murder case in the Sessions Court at Budaun and due to that enmity, the accused persons killed Hari Singh. The informant along with village-chaukidar went to the police station Gunnaur subsequent to the occurrence and got the report of the incident Ext. Ka. 1 written by one -Maheshi Lal (C.W.-1) and the F.I.R. was lodged in the same night on 22.09.1979 at 10.15 P.M. at police station, Gunnaur.;