V. P. Mathur, J. - (1.) MR. Y. P. Singh, the then First Additional Sessions Judge, Agra while disposing of Sessions Trial No. 66 of 1977 convicted Pooran under section 302 of the IPC and section 25 (1) (a) of the Arms Act and sentenced him to imprisonment for life on the first count and imprisonment for one year on the second, making the two sentences concurrent. He also convicted Murari under section 302 read with 34 of the IPC and sentenced him to imprisonment for life. Against this Order passed on 18-9-1978 the present appeal has been preferred.
(2.) AT the time of the occurrence, id is contended, that Pooran was armed with a country made pistol, with which he fired, fatally injuring Babu Ram; and Murari was armed with a lathi which he did not at all use on the spot. We may start with a small pedigree. There were four real brothers namely Parmatma, Pokhi, Tej Singh and Tundey. Nothing is known about Parmatma, but, it appears that Pokhi and his wife both died and one Savitri is their daughter. Pokhi had agricultural land in village Pura Jhoriyan, which is hamlet of Raipar Danda within the Sub-Division of Bab, district Agra. Tundey's sons were Hari Narain PW 1 and the deceased Babu Rani. Tej Singh had two sons i.e. Pooran and Murari who are both the appellants before this court. It has come in the evidence of Hari Narain, and there is no controversion of that fact, that Savitri had made some arrangement about the land left to her by her parents and the arrangement was that the land had to be cultivated and sown by Hari Narian, Baboo, Murari and Pooran. The arrangement was that the crops will be sown and grown by turns. It is in evidence that in the previous season, prior to this occurrence, the crops had been taken by Murari and Pooran, and naturally the standing crops at the time of the occurrence were to be taken by Babu Ram and Hari Narain. But it is said that two days prior to this occurrence, Murari came to the house of Hari Narain and Babu Ram and insisted upon getting the standing crops also, which was resented to by the deceased Babu Ram. There was some little "marpit" between Babu Ram and Murari and then Murari went away after threatening Babu Ram with dire consequences within two days. This is said to be the motive for the present occurrence. This occurrence took place on 1.7-11-1976 at 2.45 P. M. in the vicinity of the shop which Hari Narain was running in village Poora Jhorian, which lies within the police station Inahat, of district Agra. Hari Narain PW 1, Babu Ram (deceased), Lachoo PW 2, Kedar PW 3, Basanta and Subba were sitting at the shop of Hari Narain and gossiping. The two appellants Murari armed with a lathi and Pooran with a country made pistol suddenly came there, and according to the first information report, challenged Babu Ram telling him that he had given him a beating because be was all alone two days back and now if he has any courage, he should come down. It is contended that upon this Babu Ram came down from the shop and there was an exchange of hot words between the appellant and Babu Ram. About ten paxes to the north of the shop on the village rasta which runs East-West Pooran shot with his pistol at Babu Ram causing him fatal injuries, as a result of which Babu Ram fell down and died on the spot. The witness and some other persons, who had come on the spot, gave a chase to the culprits who tried to run a few paces towards the east, but were apprehended on the spot. The lathi (Ext. 3) from Murari and the Tamancha (Ext. 1) from Pooran were taken by the witnesses. There was an empty cartridge inside the Tamancha which is (Ext. 2). Then Hari Narain took the dead body on a tractor to police station Pinahat which is four miles away from the scene of occurrence and lodged the First Information Report at 3.30 P. M. which is Ext. Ka-1. The investigation was taken up by PW 4 Rampal Singh Station Officer who visited the scene of occurrence the same day and prepared necessary papers, the next morning he obtained the blood stained and simple earth from the scene of occurrence and sealed it and on 1-12-1976 after completing the investigation, he submitted charge sheet (Ext. Ka-10) Hinder section 302 IPC against Pooran and Murari; and the next day the second charge-sheet under section 25 Arms Act was submitted against Pooran which was (Ext. Ka-11), after the sanction of the District Magistrate was obtained, vide, (Ext. Ka-12).
(3.) THE post mortem examination on the dead body of Babu Ram was conducted by Dr. Rama Kant Sharma PW 5 who was Medical Officer in the District Hospital, Agra at 3.00 P. M. on tl 8-11-1976 and the following injuries were found on the dead body : "Gun shot wound of entry 4" x 2/10)" x chest cavity deep on outer side of left chest 5" away from left nipple. Margins were chymosed. No blackening seen. On probe direction was oblique. On internal examination left side of pleura was perforated. One metalic shot was recovered from left pleura. Upper lobe of right lung was perforated. Both chambers of the heart were empty. About 6 ozs. blood mixed with food material was found in the abdomen. THE cause of death, according to the doctor, was shock and haemorrhage as a result of gun shot injury." Prosecution examined as witnesses of fact three persons namely Hari Narain as PW 1, Lachcho as PW 2 and Kedar as PW 3. One witness was examined by the court as court witness. He is Sri B. Rai, Ballastic Expert. It appears that the court at its own instance sent the bullet which was found in the body of the deceased and was taken out by the doctor at the time of the post mortem examination, the empty cartridge which was found inside the barrel of the tamancha taken from Pooran and the country made pistol itself to the Ballastic Expert for examination and report. Sri B. Rai submitted the report which is Ext. Ka-15, and he found that the cartridge was discharged from the barrel of the fire-arm, which he had examined and which had been taken from Pooran. He also found that the bullet winch was recovered from the dead-body of Babu Ram was fired by this fire-arm.;