- (1.) N. S. Gupta, J. Seven accused per sons, namely, Puttu (A-l), Har Pal (A-2), Maiku (A-3), Budhi (A-4), Kalktor (A-5), Raj Pal (A-6) and Bankey (A-7) who were convicted under Sees. 302/149,1. P. C. and accused appellants Puttu, Har Pal, Maiku, Kalktor and Rajpal were convicted under Section 148 and Budhi and Bankey under Sec. 147,1. P. C. and were sentenced to un dergo life imprisonment under the first count and two years' R. I. and one year's R. I. respectively under the second count, as per judgment and order dated 31st March, 1980 passed by Sri Daya Shankar, the then VII Additional Sessions Judge, Shahjahanpur, have come up in appeal before this Court.
(2.) THE prosecution story, briefly stated is as follows: Accused appellants Puttu and Harpal are real brothers. Similarly Maiku, Budhi and Kalktor are real brothers. THEse five accused appellants were resi dent of village Barai hamlet of village Bans Khera P. S, Paraur District Shahjahanpur. Accused appellants Rajpal and Bankey were related as uncle and nephew respec tively. THEy belonged to village Bhuria P. S. Paraur District Shahjahanpur. Com plainant Bahar Singh P. W. 1, Dharma Singh P. W. 2 and the deceased Nawab were resident of village Bhuria P. S. Paraur Dis trict Shahjahanpur. Natthu P. W. 3 was resi dent of a nearby village Phena. THEy had their cultivation in village Bhuria. THE prosecution claimed that the fields of vil lage Bhuria were situated towards north and south of river Bhagel. To the south of this river beyond the field area, there was the Abadi of village Bhuria. Towards north of this river Bhagel beyond the fields, there was the Abadi of village Bans Khera. To the north of the river Bhagel, there was belt of land over which Patel was standing in several furlongs on the northern bank of the river. Just towards north of this Patel, there was filed of the complainant Bahar Singh P. W. 1 and his brother Nawab deceased. THE fields of Dharma Singh P. W. 2 lay nearby the fields of the complainant. The incident of this case took place on 17-10-78 at about 9. a. m. in the fields of village Bhuria. The prosecution claimed that the complainant Bahar Singh P. W. 1 and his brother Nawab deceased were ploughing their fields. P. W. 2 Dhartna Singh was also ploughing his own field and at some distance from his field Nathu P. W. 3 was ploughing his own fields. At about 9 a. m. , the accused appellants Har Pal, Maiku and Raj Pal carrying Bhala in their hands, accused Kalktor carrying a Kanta and accused Budhi and Bankey carrying lathis suddenly emerged from the Patel crop standing near the Nawab's field. They all challenged Nawab. Nawab left his plough and ran towards west. He reached near the field of Pyare, accused appellant Puttu emerged from the belt of Patel with a gun in his hand and he opened fire on Nawab and caused injuries in the left leg with the result that Nawab fell down, in the field of Pyare. The remaining appellants, namely, Har Pa4, Maiku, Budhi Kalktor, Rajpal and Bankey assaulted the deceased by means of their respective weapons, namely, Bhala, Kama, and Lathis and in flicted a number of injuries on the person of the deceased. When the complainant Bahar Singh P. W. 1, his uncle Jaswant, P. W. 2 Dharma Singh and Natthu P. W. 3 cried and ran for the rescue of the deceased, the accused appellants ran away towards the Abadi of the village. The complainant's brother Mahendra brought a bullock-cart on the spot and then putting the injured Nawab in the said cart, the complainant and his brother went to the police station Paraur which lay at a distance of about 6 miles and lodged an oral report there at about 1. 20 p. m. On the basis of the first information report, case crime No. 142 under Sees. 147/148/307, I. P. C. was registered against the accused appellants. It appears that Nawab succumbed to his injuries after about 20 minutes when he was being taken to the hospital right in the campus of the police station. The case against the accused appellant was there after converted into one punishable under Sees. 147/148/302/149, I. P. C. by head con stable Mahendra Nath P. W 5 as per G. D. report Ex. Ka-4. S. I. Shyam Lal P. W. 6, who was then working as Sub-Inspector of Police imme diately took up the investigation of the case in his hand. He prepared inquest report in respect of the dead body of the deceased right at the police station and sent the dead body of the deceased after preparing the necessary papers through constable Mohd. Yamin and village Chaukidar to the mortuary at Shahjahan- pur, which was situate at a distance of about 65 KMS from the police station. S. I. Shyam Lal P. W 6 thereafter recorded the statement of the complainant. He proceeded to the scene of occurrence in village Bhura and tried to search out the accused appellants but they were not avail able. On the next day, he inspected the scene of occurrence and prepared site plan Ex. Ka-10. He recovered blood stained earth and simple earth from the scene of occurrence and prepared recover memo Ex. Ka-11 about the same. Further inves tigation into the matter was taken up by S. I. Roop Singh P. W. 7, who recorded the statement of Dharma Singh P. W. 2 on 20-10-1978 and after surrender of the accused appellants before the Court and complet ing his investigation, he submitted charge-sheet against the accused appel lants. After committal of the case, the Court of Sessions, the then IIIrd Addition al District and Sessions Judge framed charges under Sees. , 148/302/149, I. P. C. as against the accused appellants Puttu, Har Pal, Maiku, Rajpal and Kalktor. The charge under Sees. , 147/302/149, I. P. C. were framed against Budhi and Bankey. Accused appellants pleaded 'not guilty' to the charges framed against them. They denied their participation in the occur rence in question and maintained that they were falsely implicated into this case due to enmity.
(3.) PUTTU appellant further main tained that Dharma Singh P. W. 2 was the cousin brother of complainant Bahar Singh P. W. 1. He stated that Jaswant Singh and the complainant Bahar Singh P. W. 1 had assaulted him, about which he had lodged a report against Jaswant Singh, in which Jaswant Singh was sentenced. He pleaded that Natthu P. W. 3 was the son-in-lawof Jaswant Singh. Har Pal accused appellants pleaded to have been falsely implicated into this case, due to enmity stated by his brother.;