S. I. Jafri, J. - (1.) RAMESH Chand, Prakash Chand, Naresh Chand and Sita Ram have filed this appeal against their conviction and sentence under Section 302/34 and 307/34 IPC recorded by Sri K. C. Bhargava, 2nd Additional Sessions Judge, Muzaffarnagar, by his judgment and order dated 12th December 1977, They were sentenced to undergo life imprisonment and seven years R. I. under the aforesaid sections of the Penal Code respectively. Together with the appellants, RAMESH Chand s/o Bhagwan, Somi, Khemma and Chander were also prosecuted but they were acquitted by the trial court. The State of U. P. did not file any appeal against their acquittal, and, therefore, we are left to deal with the cases of the present appellants who had preferred the appeal.
(2.) THE appellants Prakash Chand, Naresh Chand and Sita Ram are brothers and they are the sons of Saheblal. Ramesh Chand appellant is the son of Ram Chander who is the brother of Saheb Lal. In this way, Ramesh Chand appellant is related to the rest of the appellants being their cousin. Ramesh Chand appellant is said to have been armed with a double barrel gun, Prakash Chand with rifle, Naresh Chand with revolver and Sita Ram with Katta (country made pistol) at the time of the occurrence whereas, the acquitted accused namely, Ramesh son of Bhagwan, Somi, Khemma and Chander were alleged to have been armed with Kattas. The appellants are the residents of village Alipore, Police Station Titavi, District Muzaffarnagar. The deceased also belonged to the same village and both the parties are Tyagi by caste and they are neighbours as well. It is alleged that Pyara PW 1, Onkar PW 2, Sunhera and Ram Kishan had erected a well on 12-9-1976 towards the south of their Gher shown by letter 'A' and 'B' in the site-plan Ex. Ka-16 prepared by Siya Ram PW 7, the Investigating Officer of this case and while the said wall was being constructed by them, Prakash Chand and Naresh appellants arrived there at about 8 a. m. and asked them to refrain from constructing the wall. Upon this, Pyara PW 1 told them that they were constructing the wall on their own land. Both the appellants, then, had threatened Pyara PW 1 and others that if they would not stop from constructing the wall, they would be shot by fire arms when Sita Ram and Ramesh appellants would come back to the village.
(3.) THE case of the prosecution is that at about 2 or 2.30 p. m. on 13-9-1976 when Onkar PW 2, Kacheru deceased, and Sunheri were sitting on one cot and Ram Kishore and Pyara PW 1 were occupying another cot in front of the Gher of Vishambhar and were enjoying Hukka, all the appellants along with the acquitted accused climbed upon the roof of Mulhar with their respective fire arms in their hands as stated above and out of them, Ramesh Tyagi exhorted that the complainant would be given lession for constructing the wall whereupon all the accused resorted to firing towards Pyara and others with the result Onkar PW 2, Ram Kishore, Sunhera and Kachheru had sustained gun shot injuries, Kachheru fell down inside the gallery of the Gher of Vishambhar on receiving the injuries and succumbed to his injuries instantaneously on the spot. THE witnesses Pirthi, Dalla PW 3, Dharam Singh and Chaman were attracted to the scene of the occurrence and on their intervention, all the eight accused persons had made good their escape. After the occurrence, Pyara PW 1 went to the police station Titavi and handed over his written report Ex. Ka. 1 regarding the occurrence to the Head constable Hari Shanker Sharma who prepared the chik report Ex. Ka. 6 on the basis of the aforesaid written report at 4 p. m. the same day. He also registered a case in the General diary of the Police Station, a copy of the said entry is Ex. Ka. 7. Sia Ram PW 7 was present at the Police Station at the time of the registration of the case who took up the investigation of the case and left for the place of occurrence and found the dead body of the deceased Kachheru inside the gallery of Vishambhar, conducted the inquest on the dead body of the deceased and despatched the same in sealed cover along with other connected documents to the Chief Medical Officer, Muzaffarnagar for post mortem examination through constable Abdul Salam He also recorded the statement of Pyara PW 1 and other witnesses the same day. On 14-9-1976, he recorded the statement of Dalla PW 3 and some other witnesses. Some blood and two ticklies were recovered by the Investigating Officer near the dead body of the deceased inside the gallery of Vishambhar. He also found pellets and ticklies near the house of Kashi Ram on the path-way and prepared recovery memo Ex. Ka-13. He also found two live cartridges of 3i5 bore from the roof of Mulhar and took the same into his possession. The two cartridges are Exs. 9 and 10.;