- (1.) Challenge in this appeal is to the judgment and order dated 11.10.1982 passed by Sri K.N. Ojha, IV Additional Sessions Judge, Budaun in Sessions Trial No. 317 of 1981 (State Vs. Ekram and Others) arising out of Crime No. 218 of 1980, Police Station-Ujhani, District, Budaun, whereby the appellants were found guilty. The appellant Ekram was found guilty under Section 307 read with Section 34 I.P.C. and was sentenced to three years rigorous imprisonment, whereas the accused appellants Mahendra Pratap Singh and Surendra Dev Singh were found guilty under Section 307 I.P.C. and were sentenced to four years rigorous imprisonment.
(2.) Filtering out unnecessary details, the prosecution version as unfolded during trial is that Mohar Singh and accused are the resident of the same village Jiraulia, Police Station-Ujhani, District-Budaun. Accused Mahendra Pratap Singh is the son of accused Ekram Singh and the accused Suresh alias Surendra Dev Singh is nephew of Ekram Singh. On 4.5.1980 at about 9:00 a.m. injured Mohar Singh was digging a foundation for construction of his house in his land. All the three accused persons came there and objected to it. Mohar Singh resisted that he was digging foundation on his own land. There was exchange of hot words. At this Ekram Singh asked Mahendra Pratap Singh and Surendra Dev Singh to fire at Mohar Singh. Mahendra Pratap Singh fired on the leg of the Mohar Singh with a country made pistol. Mohar Singh ran from the place, but while Mohar Singh was running Surendra Dev Singh fired at him with a country made pistol on his back. Witness Bachchan Singh, Fateh Singh, Shiv Lal Singh and Kalyan Singh came to the place of the incident. Wife of the Prem Singh also came on the spot, at which Ekram Singh asked her to set her thatch on fire, so that Mohar Singh and his family members could be falsely implicated. Hence, she set fire to her thatch and kitchen. The incident was narrated by Mohar Singh to one Babu Singh, who scribed the F.I.R., which was lodged by Mohar Singh at the police station-Ujhani on 4.5.1980 at 1:10 p.m.
(3.) The injured was examined by Dr. S.C. Naugriya , P.W. 5, who found the following injuries on the body of the injured Mohar Singh :- (a) Two wounds of entrence of size 0.25 cm x 0.2 cm on back of middle of right thigh. Advised X-ray. (b) Wound of entrence of size 0.25 cm x 0.2 cm on medial malleoks of left leg. Advised X-ray. (c) One wound of entrence of size 0.25 cm. x 0.2 cm outer side of lower of 1/3rd of right thigh. Advised X-ray. He proved the injury report as Exhibit Ka-4. This witness further proved the injury report of Smt. Ram Devi, who sustained the following injuries and proved it as Exhibit Kha-1 :- (i) Two abrasion linear 4 c.m. long x2 c.m. long on upper 1/3rd of left leg. (ii) Abrasion 1 c.m. X .5 on lower 1/3rd of left leg. In the opinion of the Doctor the injuries of the injured Mohar Singh were simple duration about 1/2 day. X-ray was advised for detection of pellet. P.W. 7 Dr. V.P. Kulshreshtha prepared the supplementary report and proved it as Exhibit Ka-5. He detected two radio opaque shadow of metallic density and two radio opaque shadows in ankle area of left leg.;