I. P. Singh, J. - (1.) RAM Saran Singh and Ganga Singh, convict-appellants have preferred this appeal against the judgment and order of Sri Wahajuddin, the then Sessions Judge, Fatehpur, dated 17-8-1977 passed in Sessions Trial No. 18 of 1977 State v. RAM Saran Singh convicting and sentencing each of them under section 302/34 IPC to imprisonment for life.
(2.) THE prosecution case is that Badri Prasad, deceased, and his son Ram Pratap, complainant, PW 1, in the night between 29 and 30th August, 1976 were sleeping on separate cots in the varandah of their shop situate in Chau Dagra. At about 12.30 in the night Ram Pratap, PW 1, after answering the call of urinating had come to lie down on the cot. He was still awake when the two appellants are said to have reached there, each armed with a gun and instantly both of them simultaneously fired at Badri Prasad and caused his death. It is further alleged that Ganga Singh appellant, re-loaded his gun and thereafter had challenged the incoming witnesses that they should not dare chase them. After extending this threat, they escaped towards north east and then vanished on Bindki Road in the darkness of the night. It is also alleged that at the time of the incident an electric bulb was hanging on the twig of a Neem tree under which one Babu Lal run his beetle shop in a Gumti. At that time on western side hotel of Ram Adhin alias Kallu, PW 2, was open to cater food to the customers. Kallu was present at the hotel while one customer Shyam Kishore PW 3, was taking his food. On hearing the sound of the gun-fire both these witnesses were attracted towards the spot and it is alleged that these two as well as Ram Pratap, PW 11, were able to recognise the two appellants whom they happened to know from before. The written report of this incident was lodged by Ram Pratap alias Bhola, PW 1 at police station Kalyanpur the same night at 2 a. m. at a distance of about 4 miles. The post-mortem examination on the body of the deceased was conducted by Dr. Bal Krishna Agarwai, Medical Officer, Distt.Hospital, Fatehpur, PW 4, on 30-8-1976 at 4.30 P. M. The probable time since death was 3/4 days. This duration fits in with the the alleged hour of the occurrence. The following ante-mortem injuries were found on the person of the deceased. 1. Lacerated gun-shot wound 2-1/2" x 1/2" x bone deep with guttering of its base on the back of R. upperam with R. humrus under injury no. 1 of underlying humrus bone. Blackening and tattooing present around wound. 2. Gunshot wound of entry 1-1/4" x 1" x chest cavity deep on the right side chest in mid clavicular bone 3" below right nipple. Blackening and tattooing present. Direction from right side of left side posteriorly. The internal examination revealed that the liver had a wound 5" x 1" through and through while the small intestine had a wound 1/2" x 1/2" through and through. Two shots and wading piece were recovered from inside the body. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of gun shot injuries. The injuries were sufficient in the ordinary course of nature to cause death.
(3.) THE defence of the appellants is of denial and they contended that they were falsely implicated in this case due to enmity. THEy examined one witness Bandi Deen Trivedi. The prosecution examined in all 6 witnesses including three eye witnesses, namely, Ram Pratap alias Bhola, PW 1, Ramadhin alias Kallu, PW 2 and Shyam Kishore PW 3.;