Ajai Kumar Singh, J. - (1.) THE instant appeal has been preferred against the judgment and order dated 19.7.1982, passed by Sessions Judge Bijnor in Sessions Trial No. 21 of 1982, State v. Sheo Pal and others, convicting the appellant Sheo Pal under Section 302, I.P.C. and sentencing him to undergo imprisonment for life and further convicting under Section 342/34, I.P.C. and sentencing to undergo rigorous imprisonment for six months and also convicting appellants Amar Pal and Samar Pal under Section 302/34, I.P.C. and under Section 342/34, I.P.C. and sentencing them to undergo imprisonment for life and rigorous imprisonment for six months respectively.
(2.) BRIEFLY stated the prosecution story as narrated in the first information report is that there was old enmity between the complainant Chandrapal Singh and his collaterals Mehar Singh, Jai Ram and Dileram and others. In the night intervening 20/21.7.1981 Sukhlal (deceased) father of the complainant Chandra Pal Singh was sleeping beneath his thatch (chhappar) in front of the kotha of his tubewell and Smt. Kalawati wife of Sukhpal and mother of the complainant was sleeping inside the kotha of which door was not closed. Suddenly at about 2.30 to 3.00 a.m. in the night Smt. Kalawati awoke on hearing the suppressed voice of Sukhlal and also on account of 'khatpat' and when Smt. Kalawati flashed torch light, she saw that accused Samar Pal and Amar Pal both s/o Mehar Singh resident of same village Hatampur Khurd were pressing the body of Sukhlal on the cot and the accused Sheo Pal had placed barrel of the gun on his right temple. When Smt. Kalawati intervened and enquried from the accused, accused Sheo Pal S/o Dileram fired shot at Sukhlal and subsequent thereto accused hurling abuses to Smt. Kalawati forcibly pushed her inside the kotha and bolted the door from outside. On hearing the sound of firing the witness Begraj Singh came running from his house with lathi and torch and he saw all the three accused persons running away on the motor cycle towards Chandpur. The accused were identified by the mother of the complainant and the witness Begraj in the light of two torches. The victim Sukhlal died on the spot due to fire arm injury. The complainant on getting information reached on the spot and report of the occurrence was lodged at the Police Station Haldaur District Bijnore on 21.7.81 at 5.15 a.m. The head Moharrir prepared the chick report (Ex. 10) and the G.D. of registration of the case the copy of which being Ex. Ka-20. The investigation of the case was entrusted to Sri Brij Mohan Sharma, the then Station Officer Police Station Haldaur. He reached at the place of occurrence and after nominating panchas prepared the inquest report Ex. Ka-11 alongwith connected papers of the dead body of deceased Sukhlal. He also took in his possession blood stained clothes from the cot on which deceased Sukhlal was lying and prepared memo Ex. Ka-16. He collected samples of blood stained and plain earth from the place of occurrence and prepared memo Ex. Ka-17. He also took in possession the golden ear rings from the ears of the deceased and bedding spread on the cot which were entrusted to complainant Chandrapal Singh vide memo Ex. Ka-15 and Ex. Ka-18 respectively. The Investigating Officer inspected the place of occurrence and prepared site plan Ex. Ka-19. The dead body was sealed by him and sent for post mortem examination. He further inspected torches of Smt. Kalawati and Begraj and found them in working order and entrusted them back to those persons vide Memo Ex. Ka-1. The autopsy of dead body was conducted by Dr. A. K. Dubey on 21.7.1981 at 3.30 p.m. and post mortem report Ex. Ka-7 was prepared and following ante-mortem injuries were found : 1. Gun shot wound of entry, oval in shape, margins lacerated and inverted, 2 cm. 2 cm. on right side face outer aspect 3- 1/2 cm. in front of the upper part of right ear. Blackening and tattooing present. Burns of surrounding skin present. Directing inwards downwards. 2. Gun shot wound of exit on left side of face 11 cm. 5 cm. from the outer end left eye brow to the left side of the chin. Margins everted piercing of bones, brain matter and muscle and tendons coming out of wound outer end of left eye also involved. In the opinion of doctor, the cause of death was shock and haemorrhage as a result of gun shot wound on vital organ, i.e., brain.
(3.) AFTER completing investigation, the Investigating Officer submitted charge-sheet Ex. Ka-21 on 27.8.1981. The case was committed to the Court of Sessions on 22.1.82 by the then Magistrate. The appellant Sheo Pal was charged for the offence punishable under Section 302, I.P.C. and under Section 342/34, I.P.C. and the appellants' accused Amar Pal and Samar Pal were charged for the offence punishable under Section 302/34, I.P.C. read with Section 342/34, I.P.C.;