K.S.RAKHRA, J. - (1.) JAGMAL Singh, Raj Pal and Jai Prakash all sons of Dalbir resi ­dents of Kedi, P.S. Bawari. Meharban and Akhtar residents of Sonta, police station thana Bhawan district Muzaffarnagar filed this appeal under section 374(2) Cr.P.C, challenging the judgment and order dated 24.9.1982, passed by 1st Additional Sessions Judge, Muzaffarnagar, in Sessions Trial No. 22 of 1980. By the impugned judgment, appellant Jagmal Singh has been sentenced to life imprisonment under sec ­tion 302/149 IPC, one year's imprisonment under section 148 IPC and three years imprisonment under section 307/149 IPC. The remaining four appellants were sentenced to one year's imprisonment under section 148 IPC, imprisonment for life under sec ­tion 302/149 IPC and three years' impris ­onment under section 307/149 IPC. During pendency of the appeal, appellant No. 1 Jagmal Singh and appellant No. 4 Mehar ­ban have died and their appeal has abated. In fact six persons were tried by the Trial Court including one Hamidullah who died during pendency of trial.
(2.) ADMITTEDLY , there was a grove in village Kedi within circle of police station Shyamli which belonged to Jai Bhagwan and Mahendra Kumar of the same village. About three years prior to the resent inci ­dent, which occurred on 2.9.1979, an agreement of sale was executed by the above owners of the grove in favour of Jang Bahadur, Subhash and Rakesh sons of Babu Singh of village Kedi. The prosecu ­tion alleges that possession of grove was also given away to intending purchaser as a consideration of Rs. 90000/ - was passed. Jai Bhagwan and Mahesh subsequently executed the sale deed, with regard to the same grove in favour of accused Hamidul ­lah. This resulted into civil litigation be ­tween the sons of Babu Singh and Hamidullah aforesaid. On 6.8.1979, Civil Judge, Muzaffarnagar decreed the suit in favour of sons of Babu Singh. It is alleged that although sons of Babu Singh were in possession of the grove for nearly three years, Hamidullah and his companions Jagmal, Rajpal, Jai Prakash, Meharban and Akhtar were trying to dispossess them and secure the possession for Hamidullah. Sev ­eral complaints were sent to police by Babu Singh and his sons through his wife Chandrawati prior to 2.9.1979 in this re ­gard. On 14.10.1978 Babu Singh had sent a complaint (Ex.ka -5) to Superintendent of Police, Muzaffarnagar intimating him that on 13.10.1978, Hamidullah alone with his companions had apprehended him and confined him into his house where he was assaulted with lathi and danda etc. Later on he was handed over to the police and was falsely booked into some criminal case. It was mentioned that a litigation was al ­ready pending between him and Hamidullah accused. Again on 6.11.1978 Babu Singh sent another complaint (Ex.ka -6) to S.P. Muzaffarnagar wherein he re ­ferred to a pending civil litigation between him and Hamidullah with regard to afore ­said grove. In the said complaint he named accused Meharban son of Maunauwar and Akhtar son of Siddiq also amongst several other persons who were associated with Hamidullah against Babu Singh. He al ­leged that Hamidullah and his companion were also calling persons from other vil ­lages and were intimidating him to settle the dispute with Hamidullah else he would be destroyed. Similarly, his wife Chandrawati, P.W.6 had sent a complaint (Ex.ka 4) to S.P. Muzaffarnagar on 9.8.1979 wherein she mentioned about the dispute with regard to aforesaid grove. She claimed that her sons were in possession of the grove and the Civil Court had decreed the suit in their favour on 6.8.1979. Naming appellants Jagmal, Rajpal, Jai Prakash and others, she alleged that they formed a gang to harass her as well as her sons. She prayed for help expressing apprehension that any untoward incident may happen at any moment causing loss of life. Again on 18.8.1979 she sent another complaint to S.P., Muzaffarnagar on behalf of her sons and with reference to the controversy relat ­ing to grove. She stated that although suit has been decreed in favour of her sons, Hamidullah alongwith Jagamal, Rajpal and Jai Prakash were pressurising them to vacate the possession and hand over the grove to him. They had also given life threat. She further mentioned that Hamidullah and his companions in the preceding night had fallen a 'Shisham' tree from the said grove and complained that police was not coming to her rescue despite being approached. The incident with regard to pres ­ent appeal is of 2.9.1979 in which Babu Singh aforesaid was done to death in the said grove itself. It was alleged that Gulab Singh P.W.I (brother of Babu Singh) along with Amar Singh P.W.3, Bharat Singh and Kartar Singh went to the grove to meet Babu Singh to discuss some private mat ­ters. At about 9.30 a.m. when they were sitting on the cots lying there and were talking to each other, Hamidullah armed with double barrel gun, Jagmal, Rajpal, Jai Prakash duly armed with country made pistol, Meharban and Akhtar armed with guns appeared there from wesiern side. Hamidullah pointing gun on' Babu Singh asked him if he would vacate the grove or not. Babu Singh replied that he would not vacate since they have already obtained decree from the Court in their favour. Hearing this Hamidullah opened fire on the head of Babu Singh who fell on the cot and died. Hamidullah then exhorted his co -accused to annihilate the informant and witnesses Amar Singh, Bharat Singh and Kartar Singh who were supporting Babu Singh. On this exhortation, the accused persons opened fire on them. The infor ­mant and his companions ran towards the village and to save their lives but the ac ­cused persons chased them and kept on firing during the chase. Luckily, the infor ­mant and his companions did not receive any injury during aforesaid chase. As soon as they reached near the house of Amar Singh, appellant Jagmal shot two more fire by his weapon. These fire though could not cause injury to the informant and his companions but Amar Singh's grand son Desh Pal aged about four years who was playing in front of the house received injury and died. The informant and Amar Singh etc. could save their life by making entry into the house of Amar Singh. This incident at the house of Amar Singh was witnessed by Parmal Singh P.W.2 and other persons named in the written report.
(3.) AFTER above culprits left the scene of occurrence, the informant and his companions came out and found that Desh Raj was lying dead out side the house of Amar Singh and Babu Singh was lying dead on the cot in the grove. Near Babu Singh two 12 bore shells were found lying.;