- (1.) D. K. Trivedi, J. The aforesaid criminal appeals are directed against the judgment and order dated 29-4-1980 passed by VII Addl. Sessions Judge, Hardoi convicting the appellants under sec tions 148 and 302/149, IPC and sentenc ing each of them to undergo two years R. I. and Imprisonment for Life respectively.
(2.) CRIMINAL Appeal No. 270 of 1990 was filed by appellants Narain and Nattha and CRIMINAL Appeal No. 284 of 1980 was filed by four accused appellants namely, Salik Ram, Haripal, Ram Dayal and Awadhesh. As both the aforesaid appeals arise out of the same judgment and order, therefore, both these appeals are hereby consolidated and are being heard together. Appellant Nattha of Criminal Ap peal No. 270 of 1980 and appellant Haripal of Criminal Appeal No. 284 of 1980 died during the pendency of these appeals. Hence, both the appeals abate against ap pellants Nattha and Haripal respectively only and are dismissed against them only having abated. The facts of the case have already been given in the judgment passed by the learned Sessions Judge in great detail and therefore, we are only giving the brief facts which are relevant for the purpose of decision of the aforesaid appeals.
(3.) THE brief facts of the case are that there was an enmity between the com plainant and accused- persons. Both the complainant and accused-persons are resi dents of village-Bharo, P. S. Tandiawan, district-Hardoi. All the accused-persons are related to each other and it is alleged that just one day before the incident Salik had caught hold of the cock of Jhabboo deceased on which some altercation took place and therefore, Salik had threatened Jhabboo to kill him. It is said that in the night between 30th September/ist October, 1979, the complainant Sumer was sleeping in the 'tarwaha' of Jhabboo on one cot and Jhabboo and Taluk Nath were sleeping in the Chaupal on another cot. At about 12. 30 a. m. , complainant Sumer woke up at the barking of the dogs and on flashing his torch, he saw that the accused Narain, Naltha, Ram Dayal, Salik armed with guns and Awadhesh and Haripal armed with pistols were standing on the chabutara in front of the Chaupal. It is said that the accused-persons fired their fire-arms causing injuries to Jhabboo and Taluk Nath and thereafter, they ran away to wards north, it is also alleged that several persons namely Chhotey Lal, Dulam, Kashi Rain and Pherru reached the place of the incident and witnessed the incident. It is said that Jhabboo died on the spot, whereas. Taluk Nath was in injured con dition. THErefore, the witnesses arranged a bullock-cart and placing Taluk Nath on the said bullock-cart proceeded towards P. S. for loding the report but Taluk Nath died just at a distance of 4 miles from the village. PW-1 Sumer reached the police station Tandiawan which is situate at a distance of about 6 Kms. from the village and lodged the FIR at 5. 45 a. m. On 1-10-1979 PW-4 Mohd. Rais, Head Moharrir recorded the FIR and registered the case in the G. D. P. W. 7 Raj Pal Singh S. I. was pre sent at the time of lodging of the FIR, therefore, the investigation of this case was entrusted to him. He immediately recorded the statement of complainant Sumer and thereafter, prepared a panchayatnama of the dead body of Taluk Nath and other relevant papers Ext. Ka-4 to Ka-8 and thereafter, sent the dead body of Taluk Nath to mortuary for post-mortem through constable Radhey Shyam and Chaukidar. After completing this, he proceeded to the place of the incident and reached the place of the occurrence at about 9. 30 a. m. where he prepared the inquest report of the dead body of deceased Jhabboo and other relevant papers Ext. Ka-9 to Ka-13 and sent the dead body of Jhabboo to mortuary for post-morterm through constable Arjun Prasad and Chaukidar Dwarika. He there after, recorded the statements of the witnesses and prepared a site plan Ext. Ka-14. He took the blood stained clothes of Jhabboo deceased and he also took the sample of blood stained soil and plain soil Exts. 7 and 8 respectively from the place of the incident. THE Investigating- Officer after completing the investigation submit ted the charge-sheet against the accused-persons. The post-mortem of the dead body of Taluk Nath (deceased) was conducted by PW-9 Dr. A. K. Mehrotra, Surgeon, District Hospital Hardoi on 2-10-1979 at 11 a. m. and found the following ante- mortem injuries on the body of Taluk Nath (deceased): (i) 4 Gun shot wounds of entry with in verted, lacerated spread in area of 7 cm. 4 cm. and 1/2 cm. on back of right side chest in right scapula line, 4 cm. below interior angle of scapula. The wounds were directed down wards and upwards and chest and abdominal cavity the wounds of size 7 cm. x. 9 cm. (ii) Lacerated wounds of size 3 cm. x. 7 cm. subcutanious deep on right side chest wall in right posterior axillary line at the level of injury No. 1. The wound was directed obliquely. (iii) One gun shot wound of entry with in verted lacerated margin on back surface of right upper arm at the junction of 1/3 and upper 2/3, The wound of size 8 cm. x muscle deep and was directed downwards, forwards and slightly inwards.;