Vijay Kumar Verma, J. - (1.) -This appeal under Section 374 (2) of the Code of Criminal Procedure (in short 'the Cr. P.C.'), has been preferred against the judgment and order dated 10.12.1982, passed by the Special Judge/Additional Sessions Judge, Fatehpur in S.T. No. 130 of 1982, whereby the appellants Ram Kumar Singh, Danki Singh and Kallu Singh (hereinafter referred to as 'the accused') have been convicted and sentenced to imprisonment for life under Section 302 read with Section 34 of Indian Penal Code (in short 'the I.P.C.').
(2.) DURING pendency of the appeal, the appellant Danki Singh has died and hence the appeal has been abated against him. The incident resulting in the death of Ram Saran, son of the complainant Chandra Pal Singh r/o village Kusumbhi, P. S. Asothar, District Fatehpur, occurred on 26.8.1981 at about 6.00 p.m. The case of the prosecution, as appearing from the first information report Ext. Ka-1, and statement of the complainant Chandra Pal Singh (P.W. 1), in brief, is that prior to the incident of murder of Ram Saran, the accused Ram Kumar Singh and Danki Singh had caused obstruction in the chak road situated behind the house of complainant in the month of falgun by placing jhankhar and bricks thereon, due to which the ingress and egress of complainant's family members and their cattle in the chak road was closed. When the complainant and his son Ram Saran were removing the jhankhar and bricks from the chak road, the accused Ram Kumar and Danki armed with lathis came there. In the meantime, Ram Saran also brought a lathi and gave one lathi blow to Ram Kumar Singh. The village people intervened in that dispute. The accused Ram Kumar Singh, however, felt annoyed and insulted and vowed to take revenge of his being beaten by Ram Saran and he decided to grow his beard to get it shaved only after he took revenge from Ram Saran. Further case of the prosecution is that when on 26.8.1981 the complainant, his wife Smt. Bhagwana Devi (P.W. 3) and his son Ram Saran were cutting fodder in their khajuriya field, at about 6.00 p.m. prior to the sunset, the accused Ram Kumar Singh armed with gun and accused Danki Singh and Kallu Ahir both armed with tamancha came there from eastern side of the plot and making exhortation, the accused Ram Kumar fired shot from his gun on Ram Saran which hit at his mouth. When Ram Saran tried to run away, the accused Danki Singh ran after him and fired on his back from close range from tamancha. Ram Saran fell down there in the field and shortly thereafter succumbed to the injuries. Chandra Pal Singh and his wife raised hue and cry, which attracted Babu Singh, Kapoor Singh and other persons, who challenged the accused, on which they fled away towards northern side carrying their respective weapons. Chandra Pal Singh remained with the dead body of his son Ram Saran in the night and in the morning of 27.8.1981 he went to P. S. Asothar situated at a distance of about 10 kms. from the place of occurrence. He lodged verbal report at the police station, on the basis of which, the then constable moharrir Ram Autar Singh Bhadauria prepared chik F.I.R. Ext. Ka-1 at 8.30 a.m. and registered a case under Section 302/34, I.P.C. at Crime No. 111/81 against Ram Kumar, Danki and Kallu Ahir and made entry in G.D. at serial No. 11 vide G. D. Extract Ext. Ka-3.
(3.) S.I. R. K. Shukla (P.W. 5) was posted as Station Officer at P. S. Asothar. The case was registered in his presence. He himself took up the investigation and after recording the statement of constable moharrir Ram Autar Singh Bhadauria and complainant Chandra Pal Singh at the police station itself, proceeded to the place of incident accompanied by S.I. R. N. Yadav, constables Pancham Giri, Shiv Shankar Tiwari and Shiv Narayan Tiwari. After reaching the place of incident, inquest proceeding on the dead body of Ram Saran was conducted on 27.8.1981 in between 11.45 a.m. to 1.30 p.m., during which inquest report Ext. Ka-4, and connected papers Ext. Ka-5 to Ext. Ka-9 were prepared by him (P.W. 5) and thereafter the dead body in sealed condition was sent for post mortem examination through the constable Shyam Narain Tiwari and village chaukidar Nabbu Singh. The post mortem examination on the dead body was conducted by Dr. S. C. Srivastava (P.W. 4) on 28.8.1981 at 3.00 p.m. According to the post-mortem report Ext. Ka-2, the following ante-mortem injuries were found on the person of deceased : 1.Lacerated wound 1" 1/4" scalp deep over the left parietal region, 5" above the tragus of the left ear. 2.Lacerated wound 1/2" 1/4" scalp deep over the top of the head, 2" away and towards right to injury No. 1. 3.Lacerated wound 1/4" 1/4" scalp deep over the right parietal region, 2" above the right eye brow. 4.Lacerated wound 1/4" 1/4" bone deep over the bridge of the nose. 5.Abrasion 1/4" 1/4" over the right side of the nose 1" below injury No. 5. 6.Abrasion 1/2" 1/2" over the left cheek 2-1/2" medial to the left tragus of the ear. 7. Lacerated wound 1/2" 1/2" muscle deep over the upper lip in the middle. 8.Abrasion 1/2" 1/2" over the left fore arm in the lateral aspect. 1-1/2" above the right wrist. 9.Abrasion 1" 1" over the back of left lower limb 2" below the back of knee joint. 10.Abrasion 3" 1-1/2" over the back of left thigh, 4" above the back of left knee joint. 11.Five fire arm wounds of entry each measuring 1/4" 1/2" chest cavity deep, in an area of 1-1/2" 1-1/2" over the vertebral column in the thoracic region, 8" above the back of root of neck. The margins of each fire arm wounds are lacerated and inverted, with no blackening and tattooing. The direction of the pellets are from backwards then forwards and interior, fracture of T-6 vertebra. In internal examination, nasal bone was found fractured. Brain was liquified. There was fracture of T-6 vertebra. Right side lung and right pleura were lacerated. Pericardium and heart were also perforated and lacerated. According to Dr. Srivastava, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries.;