S. K. Agarwal, J. - (1.) -Nine appellants who have been convicted and sentenced to life imprisonment under Section 302/149, I.P.C. and six years, R.I. under Section 307/149, I.P.C. The first eight appellants have further been sentenced to two years' R.I. under Section 148, I.P.C. while appellant Ram Chand has been sentenced one years' R.I. by the then IIIrd Additional Sessions Judge, Aligarh by his order dated 14.10.1980.
(2.) AT the very outset, it may be mentioned that out of the aforesaid nine appellants, Appellant No. 2 Bhup Singh, Appellant No. 4 Prem Pal and Appellant No. 5 Mahendra Singh have died during pendency of this appeal, hence their appeals stand abated. According to the F.I.R. at 4.00 a.m. in the morning, the villagers of Battisa were engaged in laying soil on the road from Komari Canal to their village. It is alleged that as soon as laying of soil started on the road from the side of canal, ten persons arrived at the canal. At a distance of 50-60 yards the brother of the informant was present along with Hardaksh Singh, Jaipal Singh, Rajpal Singh, Rajveer Singh, Kunwar Pal Singh. The laying of soil was initiated at the first instance by one Ghamandi and thereafter by the aforesaid persons. The rest of the villagers were continuing with laying the soil on the pathway towards the village. This pathway was going from canal up to the village. In the meantime, miscreants who had come to the canal moved ahead to the field of Malkhan Singh and stationed on the merh (divider), one of them flashed torch. When Ghamandi challenged and called "who is he", one of them belonging to village Battisa gave out "I am Udaiveer Singh" and opened fire from his gun upon him (Ghamandi), brother of the informant. Ghamandi fell down on the ground immediately on receipt of the gunshot and rest of the villagers started running towards the village raising alarm. According to the informant, it was moonlit night. The informant was asleep at his house. Hearing the shouts as well as the gunshot report, the informant along with his nephew Bachchu Singh (P.W. 4), Jaipal Singh (P.W. 2) and Kunwar Pal Singh (P.W. 3) started moving towards the place of occurrence. They challenged the miscreants. He stated that along with the villagers, he took shelter in the field of the school and opened fire on miscreants. His gun went out of order after discharging a shot. When he tried to reload his gun, he was fired upon. The fire had caused injuries on his neck, hand, buttock and foot. It indicates that he had also sustained injuries while trying to run away as appears from the injury on his buttock. The assailants thereafter turned towards south stating that Ghamandi was taught a lesson for deposing against Udaiveer Singh and they will see the informant later on. This clearly indicates that they could not identify Ghamandi in the absence of light.
(3.) THE informant Gajraj Singh claims to have identified Udaiveer Singh S/o Narain Singh Jat, resident of his own village, Bhup Singh R/o village Komari, Radhey R/o village Ninmai, Ramchandra Pradhan R/o Ninmai, Mahesh S/o Ramswaroop R/o Nagla Pitam. Ramji Lal R/o Nagla Battisa, Prem Pal R/o village Komari, Mahendra R/o village Champa, Komari and Munna R/o village Ninmai in the moonlight amongst the assailants. THEse persons were known to him from before. Om Prakash of village Komari, who was ploughing his field at the moment, had also seen the miscreants passing by and also identified them. According to F.I.R., Udaiveer, Radhey and Bhup Singh were armed with gun. Mahesh, and Babulal were armed with country made pistols. Rest of the assailants were armed with lathi, spear and farsa. It is further stated at the fag end of the F.I.R. that his brother was shot again from a close range by Udaiveer Singh whereafter he fell down on the ground and breathed his last.;