K.D.SHAHI, J. - (1.) This Government Appeal has been preferred against the judgment and order dated 13/06/1980 passed by Shri R. N. Sharma, the then Ist Additional Sessions Judge,Nainital, whereby the learned Sessions Judge acquitted accused Kulwant Singh and Pappu alias Komal Singh of the charges under Section 307/34 IPC and accused Bhagat Singh of the charge under Section 307 IPC.
(2.) In brief the facts of the case are that Jogendra Singh, the complainant lodged First Information Report at police station Jaspur, district Nainital on 20/07/1978 at 16.00 p.m. with the allegations that he and his brother Mahendra Singh are resident of village Khalipar and they have taken the land of Sardar Jag Singh son of Sadhu Singh on Theka. Jag Singh is in military force. Accused Bhagat Singh is real brother of Jag Singh. Bhagat Singh has two sons, namely, Kulwant Singh and Pappu. The accused bore enmity due to taking of land of Jag Singh on Theka by the complainant and they used to damage the crops of the complainant. On 20/07/1978 at about 1.00 p.m., the cattle of Bhagat Singh were damaging the crops standing on the land of Theka. At that time Mahendra Singh came and took out the cattle and started to take the cattle to Kanji house. After about one hour when the complainant and Mahendra Singh reached near Khalia Pul, accused Bhagat Singh and his two sons Kulwant Singh and Pappu came and started to snatch the cattle. Bhagat Singh was armed with rifle, Pappu was armed with unlicensed weapon and Kulwant Singh was armed with Lathi. Bhagat Singh exhorted and told "you have got so courage to take the cattle to "Kanji House" and fired at Mahendra Singh, which hit at his chest and Mahendra Singh fell down. The complainant wanted to help Mahendra Singh then Bhagat Singh again fired which hit below the knee of the complainant. On the hue and cry of the complainant, Surendra Singh son of Sarwar Singh, Kashmir Singh son of Bakshi Singh, Malkeet Singh son of Preetam Singh and Baba Singh son of Tara Singh came, who were working in their land, and saw the occurrence. Accused Kulwant Singh and Pappu thought that both the victim, namely, Jogendra Singh and Mahendra Singh have died, there may be a murder case and to make defence, they started to beat their father by Lathi. The rifle of Bhagat Singh was broken by them and was thrown on the ground. Kashmir Singh and Baba Singh took Jogendra Singh at the police station and lodged the FIR. On the basis of the written FIR Exb.ka-7, a chick report was prepared at the police station, which is Exb.ka-13. A case was registered in the G.D. at Rapat No. 18 on 20/07/1978. Copy of the G.D. is Exb.ka-14.
(3.) The victim Jogendra Singh was examined by Dr. A. K. Dube (P.W.1) at primary health centre Jaspur district Nainital on 20/07/1978 at 4.30 p.m. The doctor has found the following injuries on his body :- 1. Gun shot wound of entry 2 cm x 2 cm on the inner and upper part of left leg just below the left knee joint-directed downwards, forwards and but wards. No tattooing of charring of surrounding skin is present. Margins inverted, fresh bleeding present. 2. Lacerated wound 4 cm x 2-1/2 cm on the inner and posterior part of left knee joint, fresh bleeding present. 3. Gun shot wound of exit 8 cm x 3-1/2 cm on the outer and posterior part of left leg 21 cm above the left lateral mellows of left ankle joint. Margins inverted underlying muscles lacerated and protruding out of the wound. A blunt probe can be passed from injury No. 1 to injury No. 3 fresh bleeding and dark clotted blood present, surrounded by swelling in the area of 25 cm x 20 cm.;