- (1.) K. S. Rakhra, J. Seven appellants in this appeal have challenged the impugned judgment and order dated 21-10-1981 passed, by IVth Additional Sessions Judge, Etah in Sessions Trial No. 793 of 1979 where trial Court has convicted appellant Ganga Singh under Section 302, IPC and rest of the appellants Mahesh, Durbin, Ram Phal, Kalyan, Shyam Pal and Ram Vir under Sections 302/149, IPC for the murder of Soran and has sentenced each of them to serve life imprisonment. Jointly all the appellants have further been convicted under Sections 302/149, IPC for committing the murder of Kashmir and have been sentenced to life imprisonment on that score. They have been further convicted under Sections 307/149, IPC with sentence seven years RI for attempting to murder Sukhram and Chheda Lal. Appellant Shyam Pal and Kalyan have further been convicted under Section 147, IPC and sentenced to six months rigorous imprisonment was the remaining appellants have been further convicted under Section 148, IPC and sentenced to one year rigorous imprisonment.
(2.) THE dispute which had generated the murderous assault lies in the dispute of ownership of a teak tree which was standing on the boundary of the two villages-Nagla Padam and Nagla Ahibaran. THE former village Nagla Padam falls in district Etah whereas Nagla Ahibaran a hamlet of Bahbalpur is within the revenue district of Farrukhabad. THE distance between the two villages is one mile. Appellant Ganga Singh is the father of appellants Mahesh and Durbin. Appellants Ram Phal, Kalyan and Shiam Pal are the real brothers and appellant Ramvir is the son of Ram Phal. All of them belong to the genelogy of Ganga Singh. According to the prosecution allegations, the dispute was with regard to said teak tree standing on the plot No. 204 in village Bahbalpur district Farrukhabad. This plot, in the revenue records was registered in the name of Siya Ram, Babu, Rajju and Yograj whereas the complainant Phulwari, Chheda Lal, Bateshar were recorded to be in possession. 32 Shisham trees are shown standing on this plot as per khasra entry of 1386 Fasli (Ex. Ka-22), while Khatauni entry (Ex. Ka-23) of 1384 to 1389 Fasli is in the names Phulwari, his brother Chhela Lal, and Batesar, all residents of Nagla Padma in district Etah. Prosecution claimed that on 6-2- 1979 at about 11 a. m. Phulwari was collecting green fodder for his Cattles in his field when his son Harbir Singh informed him that the disputed teak tree was being cut by some persons. Phulwari gave a call to other persons present in the adjoining fields and rushed towards the tree. He was followed by Soran, Ugrasen, Kitab Singh, Chheda Lal and Kashmiri. At the spot they found that the appellants Shyam Pal and Kalyan were cutting the tree while appellants Ram Phal, Ramvir, Ganga Singh and Mahesh all armed with guns and appellants Durbin having spear were standing nearby. The complainant Phulwari and his companions objected to felling of the tree whereupon an altercation, ensued. When Soran and Kashmiri made a strong protest the appellants chased the first informant and his companions. The first informant and his companions ran back and reached in the field of Bhola when appellant Ganga Singh opened a fire, killing Soran on the spot. Appellant Mahesh opened another fire on Kashmiri who fell down in the field whereafter appellant Durbin attacked him with spear. Clarifying this the witnesses said, they saw Mahesh firing and Kashmir falling but did not know whether Kashmir sustained gun shot injury or not. It may be pointed out here that Kashmir did not sustain any fire-arm injury. Appellants Shyam Lal and Kalyan had thrown away their axe and picked up lathis chasing the complainant and his companions. Shyam Lal and Kalyan assaulted Chheda Lal and Shukhram with lathis. Thereafter the appellants left the scene of the incident. Report of this crime was lodged by Phulwari, P. W. 1 at police station Sikandarpur vaish, district Etah on the same day at 3. 15 p. m. covering the distance of 15 miles.
(3.) TWO injured Soran and Kashmiri lost their lives in the assault and Chheda Lal P. W. 3. , Sukh Ram P. W. 2 and Ugrasen received injuries. How ever Ugrasen was not medically examined. Investigation of the crime (crime No. 19 of 1979) was commenced by Sub Inspector Sri S. C. Vidyarthi, P. W. 7. According to him it was raining heavily and the papers relating to this crime were delivered to him in village Badhola and therefore, he could not reach at the place of the occurrence in the night itself. He reached village Nagla Padam on 7-2-1979 at about 11 O' clock or 12 in the noon. The dead bodies of Soran and Kashmir, by that time had been shifted to a nearby school. The bodies were dispatched for autopsy examination after completing necessary formalities and preparation of the inquest reports and other relevant documents. The Investigating Officer thereafter recorded the statement of first informant injured and other witnesses and conducted spot inspection and prepared site plan. He did not find any blood in the field where incident had occurred because it was inundated with rain water but found the standing crops trampled and crushed. He also inspected the site where the disputed there was alleged to have been cut and from there he collected small pieces of scattered woods. During investigation informant handed over to the I. O. four empty cartridge shells collected by him from the place of the incident. I. O. also sent Chheda Lal and Sukhram for their medical examination after noting their injuries. Completing the investigation I. O. Sri Vidyarthi charge- sheeted the appellants.;