M. Chaudhary, J. - (1.) -This is a criminal appeal filed on behalf of the accused-appellants from judgment and order dated 14th of October, 1982 passed by IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No. 115 of 1980, State v. Babu and others, convicting accused Babu under Section 302, I.P.C. and accused Zahoor and Subrati under Section 302 read with Section 34, I.P.C. and sentencing each of them to imprisonment for life thereunder.
(2.) BRIEF facts giving rise to this appeal are that Mahipal Singh alias Puttam and Suraj Pal Singh were real brothers being sons of Zalim Singh and Ramesh Singh is the son of Suraj Pal Singh, Wazid, Sajjad and accused Subrati are real brothers. Zahoor is son of Sajjad and Shakoor that of Wazid. Accused Babu is son of Shakoor. Thus, Subrati is real uncle of Shakoor and accused Zahoor. Sagir is the behnoi of Shakoor. Since marriage party of the son of Sagir was to go from Dhayemau to Ghanghaul Zahoor engaged tractor-trolley of Mahipal Singh alias Puttan therefor on payment of Rs. 300. At about 8.30 a.m. on 18th of May, 1979 marriage party returned in the tractor-trolley to Dhayemau. The tractor-trolley was parked in front of the house of Sagir and luggage was being unloaded. In the meanwhile Zahoor, Subrati and Babu took Mahipal Singh alias Puttan at their place for payment of hire charges. A few minutes thereafter Ramesh Singh and Jagdish also reached there. At that time Mahipal Singh alias Puttan was sitting on a cot in the chhappar of Zahoor and talks were going on regarding payment of hire charges. Puttan was demanding Rs. 350 on the pretext that tractor-trolley had to go on kachcha way in excess and Zahoor and Subrati were insisting on payment of Rs. 300 as hire charges. In the meanwhile at the exhortation of Zahoor and Subrati Babu who was already armed with his father's licenced gun as he had taken the same in the marriage party fired with gun at Mahipal Singh alias Puttan from close range and sustaining the gunshot injuries at his chest Mahipal Singh alias Puttan fell on the cot and died instantaneously. Then Ramesh Singh alongwith Jagdish taking the tractor-trolley went to his village Chheechha and narrated the incident to his family members. Immediately Ramesh Singh scribed report of the said incident and handed over the same to his father Suraj Pal Singh who taking the written report went to police station Bindki situate at a distance of some eight miles from village Dhayemau and handed over written report of the occurrence to the police at 1.30 p.m. the same noon. The police registered a crime against the accused accordingly and started the investigation. S.I. Brijnandan Lal Gangwar to whom investigation of the crime was entrusted recorded statements of the witnesses at the police station itself and then went on the spot. He took a country made pistol with an empty cartridge in its barrel in the left hand of the deceased and prepared its memo. Then he drew inquest on the dead body of Mahipal Singh alias Puttan and handed over the dead body in a sealed cover to Constable Sukh Lal and village chowkidar Prithvi Pal for being taken for its post mortem. He also got bloodstained surface of the wall scrapped and bloodstained earth collected from the ground in the chhappar, sealed them in a container and prepared their memo. He also got bloodstained twine cut from the cot and sealed the same in a packet and prepared its memo. He picked up socks and shoes of the deceased kept there and sealed them in a packet and prepared their memo. Then he inspected the site and prepared its site plan map. He also recorded statements of the witnesses and did other necessary things. Autopsy on the dead body of Puttan was conducted by Dr. P. Joshi, Pathologist District Hospital, Fatehpur on 19th of May, 1979 at 2.30 p.m. which revealed below noted ante mortem injuries : 1. Gunshot wound of entry 1" 1" chest cavity deep, at 9 O'clock position on left side of chest slightly away from midline 3" apart from left nipple, blackening and tattooing present. Margin lacerated and inverted. Fracture of sternum, 2nd and 3rd ribs on left side at costochondral junction, clotted blood present underneath. 2. Gunshot wound of exit two in number 1/4" 1/4" chest cavity deep on left side of chest posteriorly back 1" apart from each other 1" downwards and medially to inferior angle of left scapula. Blackening and tattooing absent. Margins lacerated and everted. Fracture of 5th and 6th ribs on left side. 3. Abrasion 1/2" 1/2" on right side forehead 1/2" above the eyebrow. 4. Abrasion 1/4" 1/4" on right little finger terminal pholanx dorsal aspect. 5. Abrasion 2" 1" on the left ellow pasterior aspect. 6. Abrasion 1" 1/4" on the left thigh middle third part front side.
(3.) ON internal examination hematoma was found present under injuries No. 1 and 2 and left lung was found lacerated and perforated at places. Heart and pericardium were also found lacerated and perforated. Stomach contained semi-digested food 31/2 oz. The doctor found three gunshots of large size present on posterior wall of chest in an area of 3" 4" which he removed. He also removed two wadding pieces from heart. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago. The Investigating Officer got bloodstained clothes of the deceased alongwith his socks and shoes, bloodstained surface of wall and earth and bloodstained twine of the cot sent to Forensic Science Laboratory Agra for serologist's opinion. After completing investigation the police submitted charge-sheet against the acc 6. A perusal of the serologist's report goes to show that bloodstained bushirt, undergarments, socks and twine contained human blood, and blood on bloodstained trousers, belt and earth were found to be disintegrated. Shoes contained no blood stains.;