B.K.Sharma, J. - (1.) THIS is an appeal against the judgment and order dated 29.4.1980 passed by Sri R. N. Sharma, 1st Addl. Sessions Judge, Nainital in Sessions Trial No. 205 of 1978, State v. Sucha Singh and two others, whereby he gave the accused respondents the benefit of doubt and acquitted them of the offences under Sections 302/34 and 307/34, I.P.C. and also acquitted Hardev Singh acccused of the offence under Section 109, I.P.C. read with Section 302, I.P.C.
(2.) WE have heard learned counsel for the parties and have also gone through the record. Hardayal and Hardev Singh accused-respondents are sons of Sucha Singh accused-respondent. The deceased in this case was Jasvir Singh, and informant Darshan Singh (P.W. 1) was his father. The prosecution story was that there was litigation about land between the complainant side and the accused persons ; that the complainant side had got an agreement for sale from Sri Sultan Singh in favour of Mahant Singh and the complainant Darshan Singh by paying Rs. 24,000 to him, while Sucha Singh accused claimed the said land to be his own and wanted to take possession over the same and so he filed a case about it before the Sub- Divisional Magistrate, Rudrapur ; that in that case 6.9.78 was fixed ; that Sucha Singh accused also got a case registered under Section 145, Cr. P.C. in which 7.9.78 was fixed ; that sons of Sucha Singh accused had committed a theft of tyre of the trolley and about it the complainant had brought a case against them ; that because of these litigations the accused respondents had enmity with the complainant.
(3.) THE prosecution story further was that the complainant Darshan Singh along with his son Jasvir Singh was coming from Rudrapur on 4.9.78 ; that at about 6-6 1/2 p.m. when they reached near the house of karnel Singh of their village, they saw all the accused-respondents standing two paces away from the culvert In the vicinity ; that Sucha Singh accused was armed with a double barrel licensed gun ; Hardev Singh accused was carrying a Kripan ; Hardayal accused was carrying a Tamancha ; that when the complainant and his son Jasvir Singh reached near the house of Karnail Singh the accused persons started hurling abuses loudly ; that when the complainant was asking them, why they were abusing and what harm they had done to them at that time witnesses Dhara Singh and Surendra Singh from behind and Surat Singh witness from the North also came there ; that the houses of Surendra Singh and Dhara Singh were in the vicinity and so they had come out there on hearing the sound of abuses ; that witness Surat Singh had come to the Dera of Baba in village Bagwara and he had reached near the house of Karnail Singh at the time of the occurrence ; that Hardev Singh accused took out his Kripan and exhorted his companions to fire saying "CHALAO GOLI INHONEN MUJHE BAHUT TANG KAR RAKKHA HAI : that thereupon Sucha Singh and Hardev Singh accused came forward and fired one shot each with their weapons which struck Jasvir Singh deceased who fell down ; that at the time of occurrence the informant moved slightly backward and cried "MUJHE GOLI MAR DIYA": that witnesses Dhara Singh and Surendra Singh also retorted saying "INKO KYO MARTE HO" and witness Surat Singh also retorted "INKO KYO MAR DIYA" : that then the accused persons went away from the spot; that Gurbachan Singh and others also came there on the spot and then Jasvir Singh deceased in his injured condition was taken in the tractor-trolley of Gurbachan Singh to Rudrapur Hospital where he was given first-aid at about 7.45 p.m.; that after some time at 8 p.m. he (Jasvir Singh) died. The complainant lodged a written F.I.R. (Ex. Ka. 1) at police station Rudrapur the same day at 8.45 p.m. Senior S. I. Balvir Singh was present at the police station when the F.I.R. was lodged and the case was registered. Accused respondent Sucha Singh also filed a written F.I.R. (Ex. VI) at the police station at 9.15 p.m. On the basis of the said report Chick report (Ex. Ka. 12) was scribed by H. C. Girish Chandra and a copy of the said Chick report (Ex. Ka. 12) was given to the accused-respondent Sucha Singh. Senior Inspector Balbir Singh (P.W. 9) took up the investigation of this case. He went to the hospital and interrogated the witnesses and then reached at the scene of the occurrence. Because it was raining he could not find blood stains there. He also could not find any empty cartridge tikli etc. on the spot. He prepared the Panchayat nama (Ex. Ka. 3) of the deceased and sent the body of the deceased in a sealed condition for postmortem examination. He then arrested Sucha Singh accused-respondent and recovered from his possession his licensed gun (Ex. I) along with its licence (Ex. VIII) and one cartridge (Ex. IX). He found that the barrel of the gun was smelling of gun powder. He then sealed it. He after completing the investigation submitted charge-sheet against the accused-respondents.;