K.L.Sharma, J. - (1.) THIS is a Government appeal under Section 378 (3) of the Code of Criminal Procedure against the judgment and order dated 8th May, 1979 recorded by IVth Additional Sessions Judge, Farrukhabad in Session Trial No. 219 of 1977 whereby Nathu Singh respondent No. 1 was acquitted of the offences under Sections 394 read with 397 and 302, I.P.C. and Rajesh, respondent No. 2 was acquitted of the offences under Sections 394 read with 397 and 302 read with 34,i.P.C.
(2.) THE material facts of the occurrence were mentioned in the written first information report (Ext. Ka-1) lodged by Atar Singh P.W. 1 at 2 a.m. on 18.4.1977 at Police Station Mohammadabad. In the midnight of 17th and 18th April, 1977 Atar Singh P.W. 1 with his real brothers Ujagar Singh P.W. 2 and Deep Singh (deceased) has gone out for keeping watch of their Khalihan and the tubewell in the village Khajuri of P.S. Mohammadabad, district Farrukhabad. Deep Singh was having his licensed 12 bore S.B.B.L. Gun No. 3604. When these three brothers were going from their wheat field to their tubewell and reached their tobacco field, Nathu Singh and his brother Rajesh and another unknown person came rushing from the side of the tubewell of Kedar Kisan. THEy flashed torch and asked Atar Singh and brothers to halt there. Rajesh and Nathu Singh caught hold of Deep Singh and the third unknown person caught hold of Ujagar Singh and the latter raised a hue and cry which attracted Veer Sahai and Roop Lal who rushed to the spot. Nathu Singh snatched the gun from Deep Singh and shot him in his chest. THEy immediately escaped with the gun and bandoleer of Deep Singh, towards the railway line. Nathu Singh and Rajesh Singh who were identified in the torch light are the brothers-in-law of Rampal who works as helper to Kedar Kisan. THEre was litigation between Atar Singh and Kedar. Deep Singh fell down on account of gunshot injury. On registration of the crime case, investigations were started by Mr. Ram Nath Tyagi who completed the preliminaries. Deep Singh was got admitted to Fatehgarh District Hospital. Dr. Sabir Husain P.W. 7 examined Deep Singh on 18.4.1977 at 4 a.m. and found the following injury vide Ext. 15. 1. Gunshot wound of Entry margin Inverted ecchymosed 1" In diametre chest cavity deep between IV and V costal cartridge 2" away from middle of chest, 2 1/2" away at 4 o'clock position from right nipple. Air reaching in and out. Dr. Sabir Husain P.W. 7 also recorded the Dying declaration of Deep Singh at 4.30 a.m. in the same night vide Ext. Ka-16. But Deep Singh died later on at 8.30 p.m. on 21.4.1977 in the District Hospital. On receipt of information of the death of Deep Singh the case was converted into murder case. Sub-Inspector Gopal Singh P.W. 4 reached the hospital and prepared inquest memo Ext. Ka-7 and other necessary documents.
(3.) DR. S. P. Srivastava P.W. 5 held the post-mortem examination on the dead body of Deep Singh on 22.4.1977 at 3 p.m. vide post-mortem report Ext. Ka- 17 which brings out following abnormalities- Ante mortem injuries : Gunshot wound of entry on inch of diameter 2 1/2" below right nipple at 4 o'clock position, right side chest cavity deep, directed downwards and backwards right pleura lacerated, right side deaphragun lacerated, right under lacerated. Bones and Joints-right fifth costal cartilage punctured in upper point. Additional remarks : (1) 8 shots and one beddeing piece recovered from the abdominal cavity, seabed sent to S. P. Fatehgarh. B.- Internal Examination : NAD II Thorax NAD III Abdomen. Cavity-2 Lb blood is abd cavity present. Small intestine and its contents. full of gas faecal matter large intestine and its contents. Kidneys with weight-Right kidney lacerated, 7 1/2 oz left. NAD. Opinion to cause and tissue of death - Died due to shock and haemorrhage as a result of injury described. At the trial, the prosecution examined two real brothers Atar Singh P.W. 1 (informant) and UJagar Singh as the eye-witnesses of the offences besides other formal witnesses and also tendered in evidence the formal documents, and the dying declaration of the deceased Deep Singh. There was no defence evidence.;