SHRI KANT TRIPATHI,J. - (1.) THE appellants, Khushi Ram and Satpal Singh have preferred this appeal against the judgment and order dated 18.6.1981 rendered by Sri Jaswant Singh, IInd Additional Sessions Judge, Bijnor in S.T. No. 12 of 1981, State of U.P. Vs. Khushi Ram and another, whereby the learned Additional Sessions Judge, Bijnor convicted and sentenced the appellant No.1 Khushi Ram under section 323 I.P.C. to undergo imprisonment till rising of the court and also to pay a fine of Rs. 500 and in default of payment of fine to undergo further rigorous imprisonment of three months and also convicted and sentenced the appellant No.2 Satpal Singh under section 304 part II I.P.C. to undergo three years rigorous imprisonment and also to pay a fine of Rs. 2000 and in default of payment of fine to undergo a further rigorous imprisonment of six months.
(2.) THE prosecution story leading to this appeal is that the complainant Babu Ram, the deceased Gopal and both the appellants Khushi Ram and Satpal Singh are the real brothers. A partition had taken place amongst them about few months before the occurrence, according to which both the appellants started to live together and the deceased Gopal and the complainant P.W. 5 Babu Ram, on the other hand, continued to live jointly but separated from the appellants. All the properties were also partitioned except one Buggi, (hereinafter referred to as the cart) which was kept joint and was valued to the extent of Rs. 2500 and it was settled that the complainant and the deceased Gopal would pay Rs. 1250/- to the appellants on the occasion of Ganga Isnan (Kartik Purnima) and the Cart would then become the sole property of the complainant and the deceased. It was also settled that the Cart would continue to be the joint property of the complainant, the deceased and both the appellants till the payment of Rs. 1250/- to be made by the deceased and P.W. 5, Babu Ram (the complainant) to the appellants but they could not do so within the time limit. It is further alleged that on 25.11.1980 P.W. 5, Babu Ram, took out the Cart for transporting his sugar-cane from his field to a Kanta of the Mill but the appellants asked him not to use the Cart without making the payment of the settled amount of Rs. 1250/-. The complainant, however, replied that he would make payment in the evening but both the appellants did not accede to the request. It is further alleged that the complainant anyhow took the Cart to his sugar-cane field and also took one more Cart belonging to one Mukhram. The complainant's wife, P.W. 4, Murti Devi, daughter P.W. 3 Brijesh Kumari and son Trivesh Kumar and the deceased's wife P.W. 6 Tizia also came to the sugar-cane field on the cart for loading sugar-cane. The deceased Gopal, who had already gone to plough a field also came to the sugar-cane field to assist the complainant in loading the sugar-cane. The appellants, Khushi Ram and Satpal Singh, also arrived there at about 10 A.M. At that time the appellant No.1, Khushi Ram had a lathi and the appellant No.2, Satpal Singh had a Gun. The appellant No.2, Satpal Singh, started hurling abuses to the complainant Babu Ram but when the deceased Gopal Singh asked the appellant No. 2, Satpal Singh, not to hurl abuses, he made two successive fire at the deceased Gopal Singh with his licensed Gun, consequently, the deceased Gopal Singh died instantaneously. When the complainant's daughter P.W. 3 Brijesh Kumari and wife P.W.4 Murti Devi came to the rescue, the appellant No.1, Khushi Ram assaulted them with a lathi. It is further alleged that the appellant No.1, Satpal Singh made another fire on the complainant's son Trivesh Kumar but he anyhow managed his escape.
(3.) THE complainant Babu Ram lodged the first information report, Exhibit Ka-3, on the same day at 12.45 P.M. at the police station Seohara, consequently, the police registered the case and proceeded to make the investigation.;