MANOJ MISRA,J. - (1.) This appeal had been presented on behalf of three appellants, namely, Ahalkar Singh; Durgpal Singh; and Soorajpal Singh, against the judgment and order dated 29. 03. 1991 passed by the 1st Additional Sessions Judge, Budaun in S. T. No. 148 of 1987 by which the appellant no. 1 - Ahalkar Singh was convicted under Section 302 IPC and awarded life sentence whereas the appellant no. 2 - Durgpal Singh and appellant no. 3 - Soorajpal Singh were convicted under Section 302 read with Section 34 IPC with life sentence. In addition to above, the appellant no. 2 - Durgpal Singh was also convicted under Section 324 IPC with two years rigorous imprisonment. All sentences to run concurrently.
(2.) During the pendency of the appeal, the appellants 1 and 3, namely, Ahalkar Singh and Soorajpal Singh, died. Consequently, the appeal of Ahalkar Singh was abated vide order dated 13. 12. 2017 and the appeal of Soorajpal Singh was abated vide order dated 19. 09. 2019. This appeal therefore survives qua the appellant no. 2, namely, Durgpal Singh. In brief the factual matrix of the case is as under: A first information report (for short FIR) (Ex. Ka1) was lodged on 25. 08. 1986 by Narain Das (PW-1), at about 19. 40 hours (7. 40 pm), at P. S. Civil Lines, District Budaun giving rise to Case Crime No. 357 of 1986, under Section 307 IPC. The allegations in the FIR were that informant's brother (Netram) and Pappu had a tractor repair shop at Bareilly Road near Hapur Mill. In the evening of 25. 08. 1986, while the informant (PW1), his brother Netram (the deceased), Pappu, Kausar (PW-2) and Asharfi (not examined) were at the shop and talking with each other, Hansraj (PW-3) (Chowkidar of Eicher Company) came and told them that in the night, two days before, Ahalkar Singh (appellant no. 1); Durgpal Singh (appellant no. 2); and Soorajpal Singh (appellant no. 3) had assaulted him after having liquor. While PW-3 was complaining about that incident, Ahalkar Singh arrived at the shop. On his arrival, the deceased questioned him as to why he had to assault an old man. Upon which, Ahalkar Singh got annoyed and in an abusive manner told the deceased that he has no business to reprimand him. On this, the deceased told Ahalkar Singh to leave. Upon which, Ahalkar Singh left the shop abusing the deceased and PW3. Soon thereafter, at about 7 P. M. , Ahalkar Singh, Durgpal Singh with pistols; Soorajpal with lathi; and Bhagirath with knife arrived at the shop and started abusing the deceased and said as to how dare he could reprimand him when nobody could even lift an eye at him. After saying that, he proclaimed that he would teach him a lesson by finishing him off. Upon which, PW2 tried to intervene, at that moment, Soorajpal exhorted Ahalkar to finish them off. Immediately thereafter Ahalkar and Durgpal fired from their pistols. A shot hit the deceased and the other shot hit PW2. On witnessing the incident and hearing gun shots, people arrived. They chased, captured and assaulted both Ahalkar and Durgpal though Soorajpal and Bhagirath escaped. In the meantime, informant's brother Kamta also arrived who took Netram (the deceased) to the hospital whereas the apprehended accused were handed over to Nawada Chowki. The informant along with Kausar went to the police station to lodge the FIR.
(3.) After investigation, charge sheet was laid against Ahalkar; Durgpal; Soorajpal; and Bhagirath and the case was committed to the court of session for trial. During the course of trial, the accused Bhagirath died. Case against him therefore abated. The prosecution examined six witnesses, namely, Narain Das (informant-PW-1); Kausar (the injured - PW-2); Hansraj (PW-3); Romvir Singh (PW-4); Dr. S. P. Bahel (PW-5); and Somvir Singh (PW-6). The defense examined a solitary witness, namely, Dr. T. N. Sharma (DW-1). Their testimony, in brief, is as under: ;