S. K. Phaujdar, J. - (1.) -The present two appeals are being taken up together and are being disposed of by this single judgment as the two appeals arose out of a single judgment in S.T. No. 243 of 1979 wherein all the four appellants stood convicted for an offence under Section 302, I.P.C. read with Section 34, I.P.C. and were sentenced to undergo imprisonment for life. On presentation of these two appeals, the appellants were released on bail. At the time of hearing, the learned counsel informed that the appellant Majid died during the pendency of the appeal.
(2.) THE prosecution case in Crime No. 187, under Section 302, I.P.C., P. S. Jehanabad, district Fatehpur, was started on an F.I.R. lodged on 26.8.79 at 10.10 a.m. for an incident that had allegedly taken place on the same day at 7.30 a.m. THE report was made by Raj Bahadur Singh wherein all the four appellants were named. It was the prosecution case in the F.I.R. that the complainant, his uncles-Raghubir and Harpal, and his cousin Chhatra Pal had gone together to their respective fields in village Sujawalpur for cutting fodder, and they were engaged in their work in nearby fields. At about 7.30 a.m., the appellants Ismail, Jibrael, Majid and Lajid came there. Ismail held a lathi, Jibrael had a gun, the other two were having tamanchas. THEy went near Raghubir Singh who was busy in his own field of urd and tilli for cutting fodder. Ismail exhorted others to kill Raghubir saying that this man was responsible for the killing of his brother and he should not be spared. On the shout of Ismail, Raghubir got up and tried to run away. Jibrael then shot him from his gun. Raghubir suffered an injury and raised a cry and ran away. THEn Lajid and Majid opened fire on him from their tamanchas and Raghubir received injury and fell down. THEse two persons then came near him and shot him again from their tamanchas and Raghubir died on the spot. On the screams of Raghubir, the complainant, Harpal, Chhatra Pal and one Dayaram Teli, who were in neighbouring fields, shouted at the assailants who threatened them as well and in fear, the witnesses did not chase them further and the assailants fled away eastwards to their village Bhutaiya Khera. In the year 1959, Surat Singh, grandfather of the complainant, and Pratap Singh, uncle of the complainant, had a land dispute with Ismail and others and in an incident over that dispute, Surat Singh and Pratap Singh were killed. Two cross-cases were initiated against the two parties but both the cases ended in acquittal. A year ahead of the present incident, Ibrahim and Rafiq were killed in a police encounter and Ismail and others suspected that Raghubir (the present deceased) and others had got them killed. This was the motive for the present incident as indicated in the F.I.R. It was made by Raj Bahadur Singh and was written by Chhatra Pal Singh. During investigation, the police had come to the spot, and made seizure of bloodstained and standard earth and had also taken charge of hansiya and shoes and bloodstained towel. A fired cartridge was also recovered from the place of occurrence. A site plan was prepared on the basis of informations received from the witnesses. The dead body of Raghubir was sent for post-mortem examination. The dead body was received at the mortuary on 26.8.1979 at 11.30 p.m. the papers were received on the next day at 9 a.m. and post-mortem examination was held on 2.30 p.m. on 27.8.1979. Death, according to the doctor, had taken place about 1-1/2 days prior to such examination. Rigor mortis was present only in the lower limbs. There were two gunshot wounds of exit corresponding to the entry wound on the temporo-parietal region. This entry wound had blackening and tattooing around the point of entry. One gunshot entry wound was near the abdomen and the third entry was on the hip. These two injuries had no blackening. The hip injury had two corresponding exit wounds. A gunshot abrasion was also there on the hip. The stomach was found lacerated at places and was empty. The small intestine was found lacerated, faecal matter was there in the small intestine. Death was caused due to shock and haemorrhage caused by the injuries. According to the F.I.R., four witnesses were there who had allegedly seen the incident. They were called during trial as P.Ws. 1 to 4. P.W. 1 Chhatrapal is a cousin of the complainant and a nephew of the deceased. He supported the incident to certain extent to say that on 26.8.1979 at about 7.30 a.m., he along with Harpal and Raj Bahadur and Daya Ram had been engaged in their fields for cutting fodder. Raghubir Singh was also engaged in his field in cutting fodder. Ismail came there with a lathi, Jibrael with a gun, and Lajid and Majid with tamanchas. This witness was at some distance. He did not hear if anything was spoken by them. He came near the field of Raghubir only on the sound of gun-shot. When he came near the spot, he kept himself concealed behind a tree due to fear. He heard two further sounds of gunshot. He did not see the actual firing. When the accused persons left the place, he went near Raghubir Singh and found him dead. On the field of Raghubir, at the time of shooting, only the four accused persons, who were all identified in Court, were present. This witness could not say as to which of the accused had used what weapon. He wrote out the F.I.R. at the field itself on the dictation of Raj Bahadur and the F.I.R. was proved by him. This witness was declared hostile and was permitted to be cross-examined by the prosecution. He was confronted with his statement under Section 161, Cr. P.C. and he denied to have made any statement that he had heard Ismail exhorting and had seen Jibrael, Lajid and Majid shooting at Raghubir. He had also denied to have made any statement regarding threats given out to him and others. This Chhatra Pal was aged about 20 years on the date of his examination (8.2.80). It has been elicited in his cross-examination by defence that his grand-father and father were killed in an incident and Ismail and Jibrael were : tried as accused for that murder. He could not say if there had been a cross-case. His cross-examination further indicates that Harpal was about 10 to 15 steps away from him at the time of the incident and Raj Bahadur was 20 steps away. Daya Ram was in his land 15 to 20 steps from a garden which was about 100 steps from Raghubir's field. His cross-examination further indicates that when the assailants approached Raghubir, the witnesses Raj Bahadur, Harpal and Daya Ram had come within 10 to 12 steps from Raghubir.
(3.) P.W. 2 is Harpal Singh. He supported the prosecution story as given in the F.I.R. The fields, where these persons had gone for cutting fodder, were in village Sujawalpur but were near the border of village Bhutaiya Khera. Harpal and Raghubir were at a northern field while Raj Bahadur, Chhatra Pal and Daya Ram were in a field west to that of Raghubir. He described how the accused persons came and how the incident started. According to him, the exhortation was given by Ismail and it was Jibrael who gave the first shot after Raghubir could proceed 4 to 6 steps in his bid to run away. Raghubir screamed and shrieked but went on running when Lajid and Majid shot at him and then Raghubir fell down. Then, Lajid shot near his ear from a close distance and Majid also fired for the second time. Raghubir, on receipt of these injuries, died at the spot. When this witness and others shouted at the assailants, they threatened them as well and fled away towards Bhutaiya Khera. He spoke about, the past incident of 1959 about killing of Surat Singh and Pratap Singh by Ismail and by the father of Lajid and Majid. Even in the year before the incident, Ismail's brother, Ibrahim, was killed in a police encounter and Ismail suspected the hands of Raghubir Singh in this encounter. Cross-examination of Harpal Singh was made in details. It came out in the cross-examination that concerning the death of Pratap Singh and Surat Singh, a cross-case was started against Harpal also. Raghubir and Angad (father of the complainant) were also accused in the cross-case. Both the cases had ended in acquittal. According to this witness, Raghubir was killed at a place about 70 steps away from the western ridge of the field of this witness. His further cross-examination indicates that at the time of murder of Raghubir, this witness was in his own field which ways lying east of Raghubir's land. He further accepted that the places where he was sitting and where Raghubir was sitting were 70 steps apart. He claimed to have indicated the place where he was sitting but the site-plan does not locate this situation. He could not explain why the Investigating Officer had not shown the place from where he had seen the incident. He was confronted with his 161, Cr. P.C. statements. These statements could have been used for the purpose of contradicting this witness subject to the proof thereof through the Investigating Officer. But the investigation officer, however, was asked about three statements of this witness that he had seen the incident from an eastern field and that he had not stated that the deceased ran first towards the south and then turn towards west and that he had not state further that Lajid opened fire near the ear from a close distance. The witness may not, therefore, be contradicted by any other statement than these. It was taken from him in cross-examination that his term of taking water from the canal fell on Saturdays from 2 a.m. upto 6 a.m. However, they had not gone for taking water from the canal on the date of occurrence. His character was sought to be impeached by showing his involvement in criminal cases and criminal acts which he denied. A suggestion was made to him that Raghubir Singh was killed in some dispute over taking water from the canal during night by some unknown person and only due to old enmities, the old enemies were involved. P.W. 3 is Daya Ram. He too was declared hostile. It has come in his evidence that on the date of incident at about 7.30 a.m. there was some firing but he did not see anything nor did he come to the place of firing. He went on cutting fodder from his own field. Only after about 1-1/2 years, he could know that Raghubir Singh had been killed. The prosecution asked him about his previous statement made before the police and he denied to have made any claim to have seen the firing. He admitted that Raghubir Singh's dead body was lying in his field of Tilli and Urd and this witness was 150 yards from that place towards north-west. He admitted that when he heard the sound of firing from tamanchas it was 7.30 in the morning. His cross-examination indicates that firing took place after 1-1/2 hours of his reaching his field. He usually went for cutting fodder early in the morning. He stated that the sun rose about 1-1/2 hours after his arrival.;