Amar Saran, J. - (1.) THIS criminal appeal has been filed by the appellant - Asif, Sabir, Latafat and Quddus - against the judgment and order dated 20.2.1982 passed by Sessions Judge, Shahjahanpur, in S.T. No. 482 of 1981, convicting and sentencing the appellants under Section 302, I.P.C. read with Section 34 I.P.C. to life imprisonment.
(2.) SINCE the appellants, Latafat and Quddus, have died and there is a report of the C.J.M., Shahjahanpur, after making due enquiry to this effect, the appeal on behalf of these deceased appellants abates. Now only the appeal on behalf of the appellants, Asif and Sabir, survives and is being disposed of by this judgment. Briefly, the prosecution case was that at about 8 or 8.30 p.m. at the thresher of the appellant Sabir, which was to the north-east of village Iknaura, Ram Autar, the younger brother of the informant, and Ram Kishan and his cousin brother Chet Ram were present who were getting their barley threshed. One Chhotey Kisan was standing nearby who had brought some harvested wheat for threshing. The appellant, Asif, younger brother of appellant Sabir, was present at the thresher. At that time, Chhotey Kisan accused Ram Autar and Chet Ram came for getting his wheat threshed alongwith their barely. This led to a quarrel and grappling between Chet Ram and Chhotey Kisan. When Asif objected to their quarrelling at his thresher, Chet Ram told him that that was a matter between Chhotey Kisan and himself and he had no right to intervene. Thereupon Asif also began grappling with Chet Ram who pushed Asif aside, causing him to fall down. Asif warned him that he would see them on the same day. After that all the persons went home. At about 10 p.m. Asif armed with a double-barrelled gun, Sabir armed with a country-made pistol and Latafat armed with a kanta and Quddus armed with a lathi arrived at the door of the informant. The deceased Chhattar, father of the informant, was about to have his meal when Sabir came to their door and shouted that they should come out. Chhattar came out with his lathi and protested against the abuses by the accused persons. Soon thereafter, he was followed by the informant Ram Kishun, Ram Autar and his cousin sister Buddho and Chet Ram, who were carrying torches. At that time Chhattar was assaulted with lathi and kanta. Sabir cried out that his life should not be spared. Then Chhattar ran in the eastern direction but was surrounded by the accused persons near the house of Ballan Gaddi. There all the four accused persons cried out as to what they were waiting for and that he should be killed, otherwise he would run away. At that moment Chhattar turned around with his lathi. Then Asif fired with his gun which struck Chhattar on his chest and hands and the deceased fell at the door of Ballan Gaddi and died immediately. The accused decamped in the eastern direction after assaulting the deceased. The witnesses saw this incident in the light of the moon and the torches. Ram Kishun lodged the report of this incident (Ext. Ka-1) at P. S. Kanth at I a.m. in the night of 17/18.5.1981. Head Moharrir Rafiuddin Siddiqui prepared the check report (Ext. Ka-3) and made the relevant G.D. entries.
(3.) AFTER registration of the crime, S.I., Raghu Singh (P.W. 5) commenced the investigation of the case. He left for the place of incident at 2.30 a.m. alongwith the informant. The next morning (18.5.1981) inquest was conducted on the body of the deceased at about 5.30 a.m. and the body was sent for postmortem alongwith the report and other papers through constables Pancham and Pramod Kumar. The postmortem was conducted on the dead body of Chattar on 18.5.1981 at 5 p.m. by P.W. 4, Dr. Satyapal, at District Hospital, Saharanpur. The deceased was 55 years in age and according to the postmortem report (Ext. Ka-2). He had the following ante mortem injuries : 1. Multiple gunshot wounds of entry in an area of 14 cm. x 12 cm. on the entire epigastrium and adjacent parts of umbilical region above umbilicus region. Each wound 0.4 cm. diameter peritoneal cavity deep. Direction backward and to left side. 3 pellets were palpable on the left flank under skin around 12th left rib. 2. Two gunshot wounds of entry each 0.5 cm. 0.4 cm. muscle deep on antero-lateral aspect of left cubital fossa and directed backwards and lateral, 2 cm. apart. There was no blackening or tattooing. 3. Multiple abrasions 0.8 cm. c.m. in an area of 5 c.m. 3 c.m. on left forearm upper third antero-lateral side. 4. Lacerated wound 0.6 c.m. 0.3 c.m. bone deep on right side forehead, 1 c.m. above middle of right eye-brow. 5. Abrasion 2 c.m. 2 c.m. just below left patella. Incised wound 2 cm. 0.2 cm. skin deep over left tendo-achilles middle. There were 8 pellets and 400 ml. of blood in the abdomen. The stomach was empty and there was digested food in small intestines and faecal matter in the bigger intestines. 10 pellets were found in the liver. There was no blackening or scorching around the injuries Nos. 1 and 2. The death had occurred due to shock and haemorrhage resulting from the injuries. 6. Apart from the aforesaid two formal witnesses P.W. 4, Dr. Satyapal Singh and P.W. 5, S.I. Raghu Singh, who submitted charge-sheet on 26.5.1981 after completing the investigation, the prosecution examined three eye-witnesses, P.W. 1 Ram Kishan, P.W. 2 Chet Ram and P.W. 3 Ram Swaroop.;