R. P.Shukla, J. - (1.) KURRAHWA alias Sitaram and seven other appellants have been found guilty under Section 302 IPC and various other offences and have been convicted and sentenced to life imprisonment and various otter terms of imprisonment by the then Third Additional Sessions Judge, Fatehpur by his order dated 13-8-1977, in Sessions Trial No. A-76 of 1977. Aggrieved by the said order, they have preferred this Criminal Appeal No. 1750 of 1977.
(2.) ON 2-7-1976, at 10.00 a. m. one Devi Dayal lodged a first information report at Police-station Asothar of district Fatehpur, alleging that Kurrahwa alias Sitaram of his village Kauhan took his nephew Chandra Bhushan Singh in the morning of 2nd July, 1976, on the pretext of sucking mangoes in Chandra Bhushan Singh's own grove. Amar Singh, Kallu Singh sons of Sagar Singh, Sulkhey Singh and Surya Bhan Singh sons of Sailani Singh of village Kauhan were sitting, since before the arrival of Chandra Bhushan Singh and Kurrahwa alias Sitaram armed with lathis, in the said grove sucking mangoes. When Chandra Bhushan Singh reached there, he also sat with them and started sucking mangoes as he was asked by Amar Singh. Getting this opportunity, Sulkhey Singh gave a lathi blow on the face of Chandra Bhushan Singh who fell down flat. Kurrahwa flung himself on the chest of Chandra Bhusan Singh. Surya Bhan Singh and Amar Singh pressed their lathis against his neck. Kurrahwa got up from the chest and cried that chance like this will never come again come, he has been over-powered. ON this cry of Kurrahwa, Sudesh Singh, Brij Mohan Singh of village Kauhan armed with country-made pistols, Banku of village Kansapur and Ram Murat of village Saibani armed with guns, came there from a hut in the east of the said grove. Sudesh Singh said that he (Chandra Bhusan Singh) appeared against us in the murder case of Jaipal Singh as witness and did the Pairvi of that case and hence he should not be left alive. ON Sudesh Singh's saying this, Sudesh Singh and Brij Mohan armed with country-made pistols ; Barku and Ram Murat armed with guns, fired on the face of Chandra Bhusan Singh. This happened at about 8.00 a.m. on 2-7-76. Indrapal Singh, Surya Bhan Singh of village Kauhan, Gulab Singh of village Arwa, Km. Suman daughter of the informant Devi Dayal Singh and Devi Dayal himself witnessed this occurrence as they were all picking mangoes in the said grove. Out of fear of the fire-arms, they did not go near, but they did ask the appellants not to kill Chandra Bhusan Singh. After having killed Chandra Bhusan Singh, the assailants went towards the east. Devi Dayal Singh left the dead body of Chandra Bhusan Singh in the supervision of his family members and the village Chaukidar and he himself went to police-station, where he lodged the aforesaid written report (Ext. Ka-2). This is the gist of the prosecution case. ON the basis of this report (Ext. Ka-3), check report was prepared and the investigation was taken up by Pratipal Singh, the then Station Officer, Asothar. He reached the scene of occurrence on the same day at about 1.00 p.m. There, he prepared the inquest report (Ext. Ka-1) and sent the dead body to mortuary for post-mortem through constable Sheo Shanker and village Chaukidar Pahalwan and completed other formalities of the investigation. In the mean-time, he was transferred and the investigation was taken up by Bhushan Singh who completed the investigation and submitted charge-sheet against all the named accused except Ram Murat. The post-mortem on the dead body of Chandra Bhusan Singh was conducted by Dr. P. S. Misra (PW 5) who found the following ante-mortem injuries :- 1. Gun shot wound of entrance 1 1/2" x 1" x oval cavity deep on the central of chin going upward and towards right side. Margins were inverted. 2. Gun shot exist 1. 1/2" x 2" x oval cavity deep. Margins were everted and lacerated. 3. Gun shot wound of entrance 1" x 1" x brain cavity deep on the left side temporal region going upward and towards left side. 4. Gun shot exit on the top of skull 2" x 2 1/2" upto brain cavity. 5. Contusion 2" x 1" on the lower part of neck. 6. Contusion 4" x 1." on the left side chest wall upper part. 7. Contusion 3 1/2" x 1" on the left side chest below nipple. 8. Abrasion 2" x 1" on the back of left elbow joint. 9. Abrasion 1 1/2" x 1" on the back of the left wrist joint. 1.0. Contusion 2" x 1/2" on the back of left hand. 1.1. Abraded contusion 2 1/2" x 1" on the wrist joint. 12. Mark of multiple contusion on face. The diameter could not be measured due to deformity on the face. Cause of death, according to the doctor, was shock and haemmorrhage due to injuries. On internal examination, the doctor found digested fluid present in the stomach.
(3.) TO prove its case, the prosecution examined as many as seven witnesses, out of whom Devi Dayal (PW 2) and Km. Suman (PW 6) are the eye witnesses of the occurrence. The rests are formal witnesses. The defence has assailed prosecution case on the grounds that independent witnesses were available, but only partisan witnesses have been examined. The testimony of the eye witnesses is in conflict with the medical evidence and that the witnesses are not reliable.;