I. S. Mathur, J. - (1.) THIS appeal is directed against the judgment and order dated 19.5.1980, passed by the Sessions Judge, Bijnor, convicting the appellant Jamuna Prasad under Sections 307 and 302, I.P.C., and appellant Ghanshiam Singh under Sections 307/34 and 302/34,I.P.C. and sentencing them to rigorous imprisonment for seven years and five years respectively for offence under Sections 307 and 307/34, I.P.C. and Imprisonment for Life for offence under Sections 302 and 302/34, I.P.C.
(2.) ACCORDING to the prosecution case, the appellants, the deceased Chhotey and injured Mukaridi belong to the same village Gopalpur. On 12.12.1978 deceased Chhotey and his brother Haria (P.W. 1) along with some other persons, started for Railway Station, Balawali, at about 7 p.m. to escort their mother and the daughter-in-law of Asha Ram who were coming by Sealdah Express. The time of arrival of the said train was 6.05 p.m.., but on that date it was reported to be late by two hours. Amongst the persons who accompanied Chhotey, deceased, and Haria, Har Dayal and Mukandi had licensed guns with them. When they reached some distance near the field of Bhajna at about 8 p.m. a shot was fired at Mukandi as a result of which he fell down. Chhotey turned towards the place from where this shot was fired and saw the appellants standing at some distance on the southern Daul' of Bhajna's Wheat field which is towards north of the passage. Jamuna Prasad had a gun in his hand, Chhotey called Jamuna by name and asked why he has fired at Mukandi. On this the appellant Ghanshiam asked Jamuna to fire at Chhotey also. Jamuna fired at Chhotey as a result of which he fell down and died. The first information report of the incident was lodged at police station Mandawar, district Bijnor at 00.30 hours on 13.12.1978 and a case was registered. Injured Mukandi was examined by Dr. H. C. Dua at 11.45 p.m. at Primary Health Centre, Najibabad. The doctor found the following injuries on his person, vide Ex. ka 3:- 1. Gun shot wounds in an area right side abdomen lower part (four in number) measuring 1/8 cm. x 1/8 cm. Bleeding present. Injury was not probed to avoid complications. The injury was kept under observation to watch complications and X-ray was advised. 2 Gun shot wound 1/8 cm. x 1/8 cm. on the right lateral side of chest, 3 cm. above subcostal margin. Red in colour. 3. Gun shot wounds four in number, in front of arm in its lower 1/3 right side crossing in line downward and laterally 1 /8 cm. x 1/8 cm. x muscle deep. Bleeding present. X-ray was advised, 4 Gun shot wound on the lateral aspect of right elbow joint 1/8 cm. x 1/8 cm. x muscle deep. Injury was kept under observation. X-ray was advised. 5. Gunshot wounds over posterior aspect of right forearm 1/8 cm. x 1/8 cm. x muscle deep. Injuries are four in number, above downwards. Injury was kept under observation and X-ray advised. According to the doctor all these injuries were wounds of entry and were caused by some firearm like gun. All of them were fresh and could have been caused on 12.12.1978 at 8 p.m. Mukandi was referred for further treatment and X- ray to District Hospital Bijnor. The post-mortem examination on the dead body of Chhotey was conducted by P.W. 3 Dr. M.K. Ghildiyal, Medical Officer, District Hospital, Bijnor on 14.12.1978 at 2.30 p.m. He found the following noted ante-mortem injuries on his dead body :- 1. Multiple pellet wounds, gun shot, all the wounds scorched and tattooed in an area of front of chest 10" x 6". 2. Multiple pellet wounds (gun shot) present on the umbilical and around area of abdomen in an area of 10" x 7". 3. Gun shot pellet wound in an area of 4 cm. x 6 cm. upper arm. 4. Gun shot wound in forearm in an area 10 cm. x 6 cm. 5. (Left) forearm area-gun shot wounds in an area of 11 cm. x 4 cm. 6 (Left) Axilla front aspect in an area of 3 cm. x 2 cm. gun shot wound.
(3.) THE doctor has noted in the post-mortem report that all the gun shot wounds had tattooed margins and the area was scorched. According to him all the wounds were wounds of entry. On internal examination he found haemorrhage present on thoracie wall and intercostal muscles. Right pulmonary artery was ruptured and two pellets were recovered from the area around it. THE pericardium had two pellet wounds over the ventricular area. Two pellet wound were found in the heart and one pellet was recovered from it. Abdominal wall was found haemorrhagic due to multiple gun shot wounds. Peritoneum was perforated and had pellet wounds. Small intestines were perforated at three places and three pellets were recovered. After completing investigation charge-sheet was submitted by the Investigating Officer P.W. 8 Mahendra Singh against both the appellants.;