B.N.SHUKLA,J. - (1.) THIS appeal is directed against the judgment and order dated 5.5.1982 passed by the Session Judge, Saharanpur in S.T. No. 64 of 1981 State Vs. Jaipal and two others under section 302/34 and 307/34 IPC relating to P.S. Manglore, District Saharanpur (now this police station is part of District Haridwar, Uttrakhand) whereby convicting the accused Jaipal, Rais alias Behra and Abdul Rahim under section 302 r/w section 34 and 307 r/w section 34 IPC and sentenced them to undergo imprisonment for life and R.I. for 7 years on each count respectively.
(2.) THE present appeal has been filed by accused Rais alias Behra and Abdul Rahim. Accused Jaipal has filed Criminal Appeal No. 1381 of 1982 but it is abated due to death of sole appellant Jaipal. Occurrence is said to have been taken place on 5.11.1980 at 11.00 p.m. and FIR was lodged on 6.11.1980 at 2.20 a.m. Place of occurrence is village Kunwaheri which is 8 km. away from the police station. Kishan is the complainant. In brief, it is prosecution case that prior to the occurrence accused Jaipal had molested wife of Kishan and Hargyan who was father of Kishan had checked Jaipal and rebuked him which infuriated Jaipal. On fateful night Jaipal came along with accused Rais alias Behra and Abdul Rahim and there is allegation that accused Jaipal fired shot with country made pistol which hit Hargyan who died and Rais alias Behra fired at Laxman with his country made pistol which hit Laxman who is son in law of Hargyan and then all three accused flee away with country made pistols in their hands. After the occurrence Kishan took his brother in law Laxman and father Hargyan to the hospital where Hargyan succumbed to his injuries and Laxman was admitted in hospital. Kishan lodged report at P.S. Manglore. Head constable Rajendra Kumar (P.W. 6) prepared chik report (Ext.Ka.3) and made entry in the G.D. (Ext.Ka.4). S.O. R.K. Sharma (P.W. 10) took up investigation. He prepared inquest report on dead body of Hargyan with allied papers (Ext.Ka.8 to Ka.11) and after sealing sent it for post mortem with relevant documents through constables Rajpal Singh and Om Prakash. Dr. S.S. Gahlot (P.W.7) examined the injuries of Laxman and prepared injury report (Ext.Ka.7). He found following injuries on body of Laxman: 1.Multiple lacerated wound numbering 8 on the front of the upper part of the left side of chest, below clavicle two in the line of 2nd rib at a distance of 3 cm. each, two below Ist row at a distance of 2 cm. each, 3 in third row at a distance of 3 cm. and 2.5 cm. each, oval in shape, with inverted edges, red in colour due to bleeding. No pellet seen externally, no blackening, no burning and no singing of hairs. Size of wound diameter 0.3 cm. Advised X-ray. 2.Two lacerated wound on the front of neck left side. One above other with swelling in the size of 7 x 4 cm. of the neck front aspect, no blackening, no burning, no pellet seen externally, bleeding was present. Shape of wound oval and size diameter 0.3 cm. margins were inverted. Advised X-ray. 3.One lacerated wound on the lateral aspect of neck left side diameter of wound 0.3 cm. No blackening, no burning, no pellet seen externally. Edges were inverted and bleeding present. Advised X-ray. 4.Three lacerated wounds placed at a distance of 1.25 cm. in the deltoid region left side, size diameter 0.3 cm. No pellet seen externally. No blackening but an area of 6 x 7 cm. around the wounds was seen burnt and was red due to bleeding. Advised X-ray. Doctor opined that injuries could be caused by fire arm. Dr. R.K. Tandon (P.W. 2) has done X-ray of Laxman and found radio opaque shadows. He has proved X-ray report (Ext.Ka.2). Dr. M.P. Garg (P.W.1) conducted autopsy on the dead body and prepared postmortem report (Ext.Ka.1). He opined that death was caused due to shock and haemorrhage due to injuries of spleen, left kidney, intestine and liver. S.I. R.K. Sharma (P.W.10) visited the spot prepared site plan (Ext.Ka.12), memo (Ext.Ka.13 and Ka.14), fard (Ext.Ka.5) and after investigation submitted charge-sheet (Ext.Ka.16). After committal of case to the court of Session, the Session Judge charged the accused persons Jaipal, Rais alias Behra and Abdul Rahim under section 302 r/w section 34 and 307 r/w section 34 IPC. Accused pleaded not guilty and claimed to be tried.
(3.) IN order to prove charges the prosecution examined Smt. Munni (P.W. 5) in order to prove motive. Eye witness Budh Singh (P.W.3), Laxman injured (P.W. 4), Sompal (P.W.8) and Smt. Raj Bala (P.W.9) are witnesses of fact. Rest witnesses are formal in nature. Accused persons in their statements under section 313 Cr.P.C. have denied their involvement in the occurrence and claimed that they have been falsely implicated in this case. They examined Bhopal Singh Tyagi (D.W.1) and Jhandoo Singh (D.W.2) in defence. After considering entire evidence led by the prosecution and defence the trial court recorded finding of conviction and sentenced the accused persons. ;