C.D.Parekh, J. - (1.) These two connected appeals, viz. Government Appeal No. 2654 of 1965 filed by the State and Criminal Appeal No. 2008 of 1965 filed by Trijugi Narain, arise out of the same judgment and order dated September 18, 1965 passed by Sri S. C. Tyagi, Civil and Sessions Judge, Kanpur-Etawah at Kanpur. By the said order Trijugi Narain has been convicted under Section 25 (1) (a) of the Indian Arms Act as also under Section 302 I.P.C. and has been sentenced to undergo rigorous imprisonment for one year on the first count and to imprisonment for life on the second count, while Ram Nath, Shri Kishan, Goreylal and Prabhu Dayal have been acquitted of the charges under Sections 147, 148 and 302 read with Section 149 I.P.C.. In Criminal Appeal No. 2008 of 1965 Trijugi Narain has challenged his convictions and sentences, while the State has preferred the Government Appeal against the acquittal of the aforesaid four respondents. As common arguments have been advanced in both of the appeals, we would dispose of these two appeals by a common judgment.
(2.) The allegations which led to the prosecution of Trijugi Narain appellant and the respondents in the Government Appeal were as follows. Ramnath, Shri Kishan and one Sheo Balak (since dead) belonged to the same family and were cousins. The daughter of the maternal uncle of Goreylal was married to Prabhu Dayal. Trijugi Narain is said to be of the family of Goreylal. Ramnath, Shri Kishan and Sheo Balak had some joint agricultural holdings including plot No. 360, Sheo Balak, undersome private arrangement between the co-sharers, was given exclusive possession of plot No. 360 besides other plots and it is stated that he cultivated the same, although the Khata remained joint. After the death of Sheo Balak his sister Smt. Shanti Devi as his heir came into exclusive cultivatory possession of all those plots which had been in the exclusive possession of Sheo Balak, including pot No. 360. Smt. Shanti Devi sold her ⅓rd share in the joint Khata to one Rama Kant P.W. 7 ( a resident of Nonari Bahadurpur) and Manni Lal alias Maniya (father of Rajaram (P.W. 1), a resident of Kurmi Newada) by means of a sale deed (Ex. Ka-40) dated June 29, 1964. As she was in actual physical possession of plot No. 360 she handed over possession to the vendees aforesaid on the execution of the sale deed and thus the vendees came into possession of plot No. 360 besides other plots. Thereafter, it is stated, the vendees cultivated plot No. 360 and raised a paddy crop in it. Ramnath and Shri Kishan, being the joint Khata holders of the land, it appears, did not like this transaction and they filed a suit in the court of the Munsif and obtained an ex parte injunction against the vendees restraining them from disturbing their possession. The injunction order was served on the vendees on November 15, 1964. Mutation proceedings had also been taken up on the basis of the sale deed in the revenue court and November 17, 1.964 was the date fixed in that case at Sheoli, the tahsil headquarters. On the night of November 17, 1964 at about 9 p.m., when Rajaram P.W. 1, the son Manilal (vendee), was returning to his village from Nanori Bahadurpur, P.W. 14 Dulla met him on the way and informed him that the paddy crop of his field (which was almost ripe by that time) was being cut by some thieves. Raja Ram at once went to the nearby village Baragaon and contacted its Pradhan Kirat Singh P.W. 3, who advised him to collect some men and then to go to the field concerned. Rajaram, therefore, collected Mohanlal P.W. 11, Jeet Bahadur Singh and Manna Faqir (not examined) from village Baragaon and proceeded towards the field. They reached village Nanori Bahadurpur which fell in their way and from there Rajaram took along with him Ramnath P.W. 4 and Vijai Bahadur Singh (the victim of this case). When this party came out of the village Abadi they met Jagdish and Sheoram (not examined) and they were also taken along by Rajaram. Reaching the canal culvert, Rajaram also met P.W. 9 Madholal and Ram Swarup (not examined) and these two also joined Raja Ram and his party. All these persons reached plot No. 360 and there they saw that 20 to 25 persons were cutting the paddy crop. Rajaram and Vijai Bahadur Singh shouted and asked who were committing the theft of the crop. Hearing this shout Ramnath and Shri Kishan (armed with lathis), Prabhu Dayal (armed with a Kanta), Goreylal (armed with a spear) and Trijugi Narain (armed with a pistol) proceeded towards Rajaram and his party. When they were at some distance Rajaram asked them why they were committing the theft. In reply Trijugi Narain told Rajaram and his party to run away from the place or else they would be killed. Vijai Bahadur Singh thereupon retorted that they were committing theft and in addition were brazen-facedly threatening to kill them. Ramnath, Shri Kishan, Prabhu Dayal and Goreylal then exclaimed 'Maro Sale Ko, Jis se goli aarpaar ho jai'. At this Trijugi Narain aimed his pistol at Vijai Bahadur Singh and fired, hitting him in in the chest. Vijai Bahadur Singh fell down and died. Two more shots were fired by Trijugi Narain, on which Rajaram and his party fled away. On reaching his house Rajaram wrote out the report Ex. K,-4 but did not proceed to the police station on account of fear of the miscreants in the night. He went to the police station next morning (November 18, 1964) and lodged the first information report there at 7.30 a.m. The Station Officer S. 1. Chandresh Singh P.W. 26 took up the investigation. He reached the scene of occurrence at about 9.30 .am. on November 18, 1964. He found the dead body of Vijai Bahadur Singh lying to the west of plot No. 360. He despatched the dead body for post mortem examination after completing the usual formalities. Blood was found on the ground beneath the dead body. Two empty cartridges marked Ex. 6 and a Kanta Ex. 5 were also found near the dead body of Vijai Bahadur Singh. Four sickles Ex. 2, one spear Ex. 3, 7 lathis Ex. 4,3 logs of wood, some threshed paddy and 4 gunny bags were also found and were taken possession of by the police. Malkhey Ram, father of Trijugi Narain was contacted and from his possession his licenced pistol Ex. 1 and 6 live cartridges, together with his licence, were also seized by the police. Ramnath, Trijugi Narain, Shri Kishan and Prabhu Dayal were arrested at about 3-30 p.m. on November 18, 1964 in the village.
(3.) Dr. B.C. Jain, P.W. 2 performed the post mortem examination of the dead body of Vijai Bahadur Singh at 12.15 p.m. on November 19, 1964. He found the following ante mortem injuries on the body of Vijai Bahadur Singh: (1) Gunshot wound of entry 1/4" x 1/4" over the sternum between the second and the third ribs, about 1/4" to the left of the medial line. The bullet had pierced through the lungs, pleura, pericardium and the left atrium. (2) Gunshot wound of exit 3/10" X 3/10" on the back left side in the 6th intercostal space near the vertebral end. The 7th rib was broken. No tattooing, blackening or scorching was detected on the margins of these wounds. The death in the opinion of the doctor was due to shock and haemorrhage resulting from the aforesaidn injuries. The doctor further opined that the injuries could be caused by the pistol being fired from a distance of about 10 to 15 steps; that in any case the shot in this case was fired from more than six feet; and that these injuries were sufficient to cause instantaneous death.;