- (1.) N. L. Ganguli, J. This appeal of Nathu Singh and Rajvir Singh, both sons of Sardar Singh, is directed against the judgment and order dated 10-6-1980 passed by Sri S. N. Saxena, IIIrd Addl. Sessions Judge, Badaun convicting appellant Nathu Singh under Section 302, I. P. C. and sentencing him to undergo R. I. for life and convicting appellant Rajvir Singh under Section 332/34, I. P. C. and sentencing him to undergo R. I. for life.
(2.) THE deceased Dhianpal Singh and the appellants are closely related. THE pedigree of the family showing closeness of relation is quoted as under: a Mulayam Singh Sardar Singh Mahavir Singh Udaivir Singh Nathu Singh Rajvir Singh (Accused) (Accused) Krishnapal Singh Shripal Singh Dhianpal Singh (Complainant) (Deceased) Deceased Dhianpal Singh was related as Sadhu of appellant Nathi Singh. Nathu Singh had taken a loan of Rs. 2,000 from Dhianpal, deceased about a year back. THE relations between the decease appellants were not strained. THE taking of loan by Nathu Singh was shown to be on the basis of any receipt. Nathu Singh had ton back the amount writhing two months but he had not been able to On the date of occurrence i. e. 26-6-1978 at about 10 a. m. in village Raipura deceased Dhianpal Singh and Krishnapal Singh were loola the roof of their house as it was rainy season. THE house of "i Nathu Singh adjoins towards west of the house of complainant it Singh. THE door of the house of Nathu Singh was in the western. THE deceased Dhianpal Singh while standing on the roof Krishnapal Singh asked Nathu Singh for payment of the loan money, Singh accused was carrying a gun with him, Rajvir Singh, was standing near him. THEy were talking to each about to leave the house for some other place. Co-accused Rajvir hearing, of the demand for repayment of the loan money exhorted accused Nathu Singh to shoot Dhianpal Singh as he had been making the demand almost daily for repayment of the loan money. Appellant Nathu Singh thereafter opened fire upon Dhianpal Singh from his gun, which hit Dhian pal Singh and he fell down on the roof. THE incident was seen by Hakim Singh, Lal Singh and Prem Pal Singh, who were near the Chaupal, close to the place of incident. THE accused-appellants thereafter had escaped in the western direction. Dluanpal Singh had not died instantly. Krishnapal Singh took Dhian Pal Singh for his treatment to Badauu on a bullock tonga Shripal Singh informant drafted the F. I. R. of the incident in his Baithak and proceeded for the Police Station Hazratpur, which was at a distance of about six miles from the village. THE F. I. R. was lodged at 13. 10 hours on 26-6-1978 and a case under Section 307, I. P. C. was registered against Nathu Singh and Rajvir Singh appellants. Dhianpal Singh succumbed to his injuries on way to Badaun between village Alapur and Sakhanu. Krishnapal Singh went to the District Hospital alongwith the deadbody of Dhianpal Singh. THE Police Station Hazratpur where the report under Section 307, I. P. C. was initially registered after receiving information about the death of Dhianpal Singh converted the case under Section 302, I. P. C. THE F. I. R. is proved in the case and marked as Ext. Ka 6. After lodging of the F. I. R. the police investigated the case and charge-sheeted the appellants. THE appellant No. 1 was charged under Section 302, I. P. C. simplifier and the appellant No. 2 was charged under Section 302 read with Section 34, I. P. C. THE accused pleaded not guilty. Rajvir Singh appellant No. 2 denied his presence in the village at the time of incident. He stated that he was in village Gountra where he used to practice medicine. The appellant Nathu Singh gave a counter version of the occur rence and stated that on 24-6-1978 deceased Dhianpal Singh had beaten the sweepers of the village who had, therefore, stopped working in the house of Krishnapal Singh. On 25-6-1978 Krishnapal Singh had complained to appellant Nathu Singh as he was under an impression that it was Nathu Singh who had directed the sweepress not to work at his place. The appellant Nathu Singh had explained the position to Krishnapal Singh and on 26-6-1978. At about 10/11 a. m. Krishnapal Singh armed with a gun, Maharam and Sripal Singh armed with lathis reached the door of Nathu Singh's house. Krishnapal Singh, Maharam and Sripal Singh entered into his house and Maharam, Shripal Singh started inflicting lathi blows upon him, Dhianpal Singh from the roof of his house fired a shot from a country made pistol. Krishna Pal Singh then directed every body to recede as he was going to murder Nathu Singh. Krishnapl Singh aimed his gun towards him. Nathu Singh apprehending danger to his life caught hold of the gun of Krishnapal Singh. In the meantime his son Om Pal Singh reached there with the gun of his brother Bhagwan Singh. Dhianpal Singh was getting ready for firing another shot. Nathu Singh's son apprehending danger to the life of his father opened fire and in the scuffle the gun of Krishnapal Singh also went off. Both the shots were fired almost simultaneously and he did not know as to which fire hit Dhianpal Singh. Nathu Singh appellant is said to have received injuries. Thereafter he had gone to Police Station Alapur but his F. I. R. was not registered by the police there. Nathu Singh's brother Rajvir Singh had also accompanied him to the Police Station Alapur. Nathu Singh is said to have sent an application to the D. I. G, Bareilly as well as to the higher authorities of Lucknow. Nathu Singh got himself medically examined on 28-6-1978. The cross version of the incident given by the appellant Nathu Singh was not investigated by the police. The prosecution in the Sessions Trial examined eye witnesses PW 1 Shripal Singh, PW 2 Hakim Singh and PW 3 Krishan Pal Singh.
(3.) PW 1 Shri Pal Singh before the Sessions Court stated the relationship between him and appellants Nathu Singh and Rajvir Singh. He stated that appellants are his uncle according to the relationship. Dhian-pal Singh deceased is the 'sadhu' of Om Pal Singh s/o Nathu Singh. Smt. Atitamati is sister of appellant Nathu Singh. Shanti is the daughter of Atitamati i. e. sisters's daughter (Bhanji) of Nathu Singh appellant. Shanti is married to Vijrendra Pal Singh Advocate of Bareilly. Younger brother of Vijendra Pal Singh i. e. Yogendra Pal Singh is Deputy Govern ment Counsel. This witness also stated that Nathu Singh had taken Rs. 2,000 from Dhian Pal Singh deceased about a year back. Nathu Singh had assured to return the money in two months but he had not been able to return the money. Since the loan money was asked to be repaid, he became inimical. On the date of the incident at 10 a. m. Shripal Singh, deceased Dhianpal Singh and cousin of Sripal Singh i. e. Krishnapal Singh were on the roof of the house and were looking after the roof of the house on account of rains. The roof of the house of Shripal Singh is adjoining to the roof of Nathu Singh. Nathu Singh's outlet is towards west. The deceased Dhianpal Singh had asked Nathu Singh for return of the money from the roof of his Baithafc. Nathu Singh had a gun at that time. Rajvir Singh was also standing there. Both were standing near the door of their house and were taking to each other for going some - where. Since Dhianpal Singh deceased asked Nathu Singh to pay the money back, Rajvir Singh exhorted Nathu Singh saying 'mar Do Sale ko Goli Se Roj Roj Rupon Ka Takaja Kwta Rahta Shoot him by gun, daily he asked for paying back the money' and Nathu Singh appellant fired a shot immediately on Dhian Pal Singh which hit him and he fell on the roof itself. Hakim Singh, Lal Singh, Prem Pal Singh and others, who were the Chaupal had seen the incident. The accused persons there after ran away in the western direction. Dhianpal Singh's condition was serious. Krishnapal Singh took him to Badaun for his treatment. Shripal Singh prepare the F. I. R. and had lodged it before the police and proved the same Ext. Ka 1. This witness was cross examined by the appellants' counsel. In cross-examination Shripal Singh denied that no daughter of Ram Pal Singh was married to Om Pal Singh. Om Pal Singh is the son of Nathu Singh. The witness stated that Om Pal Singh is married to the daughter of Maharaj Singh r/o Sirsoli. He stated that Dhian Pal Singh deceased was married at the place of Ram Pal Singh in village Pachdeora. Ram Pal Singh's brother is an Advocate at Badaun and another brother Rakshpal Singh is also there. Vijendra Pal Singh and Yogendra Pal Singh, who were Advocates practising at Bareilly were known to the witness. The witness Shri Pal Singh stated that he had known that Vijendra Pal Singh and Yogendra Pal Singh were practising at Bareilly. He further stated that they were the persons who were advising the appellants to litigate the case.;