- (1.) M. P. Mathur, J. This appeal is directed against the judgment and order passed on 6-9-1978 by Sri P. K. Jain, the then VII Additional Sessions Judge, Farrukhabad in Sessions Trial No. 433 of 1977. The learned Judge convicted the two appellants Ram Dev under Section 302, I. P. C. and under Sections 307/34, I. P. C. and Subhakar under Section 302/34, I. P. C. and Section 307, I. P. C. simpliciter. Under Section 302 I. P. C. and 302/34, I. P. C. the two were sentenced to imprisonment for life and on the second count, each one was sentenced to five years' rigorous imprisonment and the sentences were made concurrent.
(2.) THE occurrence allegedly took place in the night between 12/13-6-1977 at about 10 or 10-30 P. M. in the court-yard of the house of the deceased Ramchandra in village-Gudera, which lies within the area of out- Post-Amritpur, Distt. Farrukhabad. At a distance of eight miles from the place of occurrence, the first information report was lodged by Ram Saran who claims to be an injured witness (PW 1) at 6-30 A. M. on 13-6-1977. It has now been ascertained that it was a dark night. THE moon rise in Allahabad was at 137 A. M. and it has set the next morning at 13. 46 hours. THErefore, it is now the common case of the parties that the occurrence took place when there was no moon light available, but, it is said that a burning lantern was present on the wall of the Kitchen which was shedding sufficient light on the spot. The prosecution story is that the first informant Ram Saran had three other brothers, namely, Ram Chandra (deceased), Ram Bharose and Raksha Pal. They all used to live in the same house with a common sahan but in different kothas. The Police Station is Rajepur, but since there is a reporting chauki also closer to the village at Amritpur, hence the first information report was lodged there. Towards the west of the house in front of their door, there is a piece of open land which these brothers were using a sahan land for tethering their cattle and keeping fodder etc. A platform was also in existence there since long and was used by them for sitting purposes. Ramdev and Subhakar (Sudhakar) also have their houses not very far away towards the south-west and they wanted to possess this land forcibly and this was the immediate cause for this occurrence. One day before this incident, Ramdev and Subhakar started dismantling this platform. Ramchandra (deceased) was present and asked them to desist. They stopped, further operations, but there was an exchange of abuses and the two appellants went away after threatening Ramchandra with dire consequences. It is contended that after that, these two persons assembled at the house of Ram Mohan and entered into a con spiracy. It is contended that with Ram Mohan. These four brothers were having enmity since very long, because some members of the family of Ram Mohan were involved in the murder of the father of the first informant and atleast one of them had been convicted and sentenced; and the sentence and conviction had even been upheld by the Supreme Court. This occurrence took place in the night between 12/1-6-19/7 at about 10 or 10 30 P. M. , when the first informant alongwith his two brothers Rara Bharose and Raksha Pal was sitting on a charpoy towards the cast on his Rasoi inside the sahan and the deceased Ramchandra was sitting a few paces away towards the further South-East on the ground where he had spread a guilt (Razai;. A lighted lantern was present on the wall of the Rasoi. The accused-appellants Ram Dev and Subhakar (Sudhakar) alongwith Rabudi and Ram Mohan entered from the Western door of the sahan. It may be mentioned here that this door has no door planks, but only chauktiat. Rabudi is the brother in law of Ramdev. It is said that Ramdev and Subhakar were armed with guns, while Rabudi and Ram Mohan were possessed of country made pistols. A challenge was thrown by Ramdev that Ramchandra should be put to death and should not be allowed to escape. Simultaneously he fired fro n his gun at Ramchandra causing his injuries, as a result of which Ramchandra died on the spot. Crying to attract the witnesses on the spot, the other three brothers ran to save themselves. Ram Saran tried to reach the protection of the walls of his kitchen, but in the meant Subhakar fired from his and towards him and caused him injuries. The other brothers could manage to go behind the protection of the walls of the rasoi of Rambharosa and although Ram Mohan and Rabudi fired towards them, they could not be injured On the alarm raised by the first informant and his brothers, the witnesses of the vicinity, namely, Ram Swarup, Brij Bhushan (P. W. 5) and Ram Naresh etc. reached on the spot flashing their torches. When they challenged the accused-appellants and their associates, they managed to escape through the Northern, dislapidated- wall of the sahan.
(3.) IN the night due to fear, the first informant could not dare go to the out-post Amritpur. Therefore, he started the next morning and in the way had the report drawn out by Narnandan Lal and presented it at the out-post where the case was registered. Investigation was started by Bharatlal Sharma, Station Officer Rajeypur, who reached the scene of occurrence the same day and prepared inquest memo of the dead body. Then after inspecting the scene of occurrence he prepared site-plan Ext. K. a-15 and recovered from the Sahan tiklis and four pellets, vide, memo Ext. Ka-13. The blood stained razai on which the deceased was sitting at the time of the occurrence and where he died, as well as one Chadar were taken into custody, vide Ext. Ka- 14. An attempt was made to apprehend the appellants and others but they were not in the village and hence processes under Sections 82 and 83, Cr. P. C. were obtained and execut ed on 22-6-1977.;