I P. Singh, J. - (1.) KANHAI alias Kandhai, Dharam Pal and Pooran convict appellants have preferred this appeal against the judgment and order of Sri H. C. Rastogi, Ilnd Additional District and Sessions Judge, Bareilly, dated 4-5-1976, passed in ST No. A 461 of 1976, State v. KANHAI, convicting and sentencing each one of the three appellants u/Sec.302 read with Sec. 34 IPC to imprisonment for life.
(2.) PUNNI, Leeley, Dulli and Jawahar were real brothers residents of Mohalla Khera in town Aonla, district Bareilly. PUNNI's son was Narain. Kanhai appellant and his late brother Shanti are the sons of Narain. They have a sister also married to Dharam Pal appellant, resident of village Ghure. Shanti's widow is Smt. Roopa. Pooran appellant is real brother of Dharam Pal appellant. Leeley and Dulli died issueless. Dulli left his widow Smt. Krishna. Govind Ram alias Chaila complainant PW 1 and Mangli are sons of Jawahar. Bankey Lal deceased was the son of Mangli. Nem Chandra PW 6 is son of Bankey Lal deceased. One Man Singh resident of village Salanagar is said to be an accomplice of the present three appellants. It is also alleged that daughter of Man Singh is married in the family of Dharam Pal appellant. Of course, this fact is denied by the appellants. Prosecution case is that there had been a long drawn litigation between Govind Ram, complainant PW 1 and Narain, the father of Kanhai appellant over the lands and it was on account of the said enmity that Bankey Lal deceased, the nephew of Govind Ram complainant PW 1, was murdered by the appellants. It is alleged that in the night between 7/8 of June, 1975. at about 1.30. Govind Ram complainant PW 1, his nephew Bankey Lal deceased, Shafi Khan PW 2, Kalyan PW 3, Devi Ram Thekedar and Nem Chandra PW 6 were sleeping on cots in the open in the grove of one Kallu Mian in village Avadanpur within Police Station Aonla to keep a watch of mango crop. A lantern was burning there hung by Balli of the hut nearby. These people were awakened by the sound of footsteps of the approaching persons. They saw Kanhai appellant holding a Tamancha, Dharam Pal appellant holding a double barrel gun, Pooran appellant carrying a lathi and Man Singh holding a Tamancha standing there. They flashed torch on the above named persons, who were sleeping in the grove and shouted as to where was Bankey ? They would see him. (kidhar hai Bankey, aaj usse nipatna hai) on this Govind Ram complainant PW 1 raised alarm, Kanhai and Dharam Pal appellants fired from their respective weapons at Bankey, who was sleeping on a cot, placed to the right hand side of Govind Ram complainant PW 1. While firing at him, they shouted Shanti ki bahu se yari kar le aur jamin ka mukadma jeet le bahut dino me aaj hat aya hai. All the above named witnesses shouted at the assailants as to what they were doing. Whereupon Man Singh fired a shot form bis Tamancha (in the air) warning the said witnesses to remain lying quitely on their cots, otherwise they would be killed. Pooran appellant had all the time remained standing holding lathi in his hand near Govind Ram PW 1. Due to fear none of the witnesses interfered. After killing Bankey deceased, the four assailants went away towards west.
(3.) GOVIND Ram complainant PW 1 got the report of the incident written from Karan Lal PW 7 at the spot. GOVIND Ram complainant PW T lodged that written report at Police Station Aonla, 3 furlongs away, the same night i.e. on 8-6-75 at 4.30 a.m. Post-mortem examination on the dead body of Bankey was performed by Dr. S. P. Goel PW 10, Medical Officer, District Hospital, Bareilly on 9-6-1975 at 1.00 p.m. The deceased was aged about 30 years. The probable time since death was about one and a half days. The following ante-mortem injuries were found on his person : 1. Gunshot wound of entry 2.5 cm x 2 5 cm x abdominal cavity deep on the right side of abdomen 18 cm below the axilla in anterior axillary line. Blackening was present, intestine loop was peeing out. One wading piece and 8 shots were recovered from the wound. 2. Multiple gunshot wounds of entry in an area of 14 cm x 12 cm below right ear on right side neck and back of neck. Four shots recovered from the wounds. 3. Multiple gunshot wounds of entry in an area of 7 cm x 5 cm on left elbow on the medial side. Four shots recovered from the wounds. 4. Abrasion 10 Cm x 8 cm on right side back 10 cm away from injury no. 1. 5. Contusion 3 cm x 3 cm on right side forehead 1 cm above right eyebrow. ;