- (1.) A. B. Srivastava, J. Appellants Ganga Sahai and Panna Lal have preferred this appeal against a judgment and order dated 25-1-1980 of the IV Additional Sessions Judge, hiah, convicting both of them of the offences under Sections 364 and 302/34 of the Indian Penal Code and sentencing to R. I. for 10 years and imprisonment for life respectively, direning both the sentences to run concurrently. By the same judgment one of their co-accused Rajendra Singh was acquitted.
(2.) THE prosecution story, in brief, is that non-appellant accused Rajendra Singh was inimical to deceased Brij Pal, son of Anand Singh, resident of Village Dharpasi, P. S. Marhara, District Etah, on account of a quarrel which took place between them during voting in the elections a few months ago. Accused appellants Ganga Sahai and Panna Lal who are real brothers, had also a grudge against the deceased in so far as they suspected him of having stolen their buffaloes. On 25. 3. 1978 at about 7 p. m. it is alleged, deceased Brij Pal and his uncle informant Mahendra Singh (PW-2) were sitting in their courtyard, where two other persons Mahendra Singh, son of Sardar Singh and Gajendra Singh (PW-3) were also present. Appellants Ganga Sahai and Panna Lal along with one more person (later identified as non-appellant accused Rajendra Singh), came there and asked Brij Pal to accompany them as they had an important thing to talk about. When informant Mahendra Singh told them to talk at that very place, they told that a relation of the deceased had come and wanted to talk with him outside the village. On this Brij Pal went with them. After a gap of about 15 minutes there was heard sound of gun fire from towards the Railway line at a distance of about one furlong, hearing which the informant and others rushed in that direction. On way they met Pitamber (PW-4), Padam Singh (PW- 5), Anand Singh (PW-6), the father of the deceased and Ajab Singh (PW-7 ). who informed them to have seen the accused persons going from near the place of occurrence with country made pistols in their hands and also having been informed by Brij Pal, who was lying injured in a pit near the Railway line, about the person accompanying the appellants having shot at him. The injured Brij Pal was taken on a cot to Police Station Marhara, where the First Information, Exhibit Ka 3. , was lodged naming the two appellants and stating their accomplice could be identified by face. The F. I. R. was registered under Section 307 I. P. C. at 10. 30 P. M. on 25. 3. 1978. The injured Brij Pal was sent to the Primary Health Centre Marhara where his injuries were examined by the Medical Officer-in-Charge at 11. 55 P. M. on 25-3-1978. The following injuries were found as per the injury report, the genuineness of which was admitted by the defence under Section 394 Cr. PC. (1) Gun shot wound 1-1/2 cm. x 1 cm. x 2 cm over the anterior lateral aspect of right forearm 2 cm. below the right elbow joint. (2) Gun-shot wound 1 cm x 1 cm on the front of right forearm 4 cm from the right elbow joint. (3) Gun-shot wound 2 cm. x 1 cm x 1-1/2 cm on the right side of abdomen 18-1/2 cm from right breast. (4) Gun-shot wound 2. 4 cm x 1. 5 cm on the right side of abdomen 25 cm from right nipple. (5) Gun-shot wound 1 cm x 1 cm x 2 cm on the right side of abdomen. (6) Gun-shot wound 2 cm x 1 cm on the right side of abdomen 18 cm from umblicus. (7) Gun-shot wound 1 cm x 1 cm on the right side of chest, 24 cm downwards laterally from the right breast. The general condition of the injured was poor and he was referred to the District Hospital, Etah. While being taken to the hospital, however, he succumbed to his injuries in the morning of 26. 3. 1978. The case was then altered into one under Section 302, I. P. C.
(3.) THE investigation of the case was taken up by PW-11 S. I. Gautam Singh who claims to have recorded the statement of injured Brij Pal at 3. 13 a. m. on 26. 3. 1978. THE said statement, copy of which is Ex. Ka 6 has been relied on by the prosecution as dying declaration of the deceased. Reaching the place of occurrence in the morning he prepared a site plan of the place of occurrence, took blood stained and unstained earth, pellets and wad of cartridge and also recorded the statement of the eye-witnesses. On learning about the death of Brij Pal near the Railway Station, he went there and prepared the inquest report and other relevant documents and sent the dead body for post-mortem.;