- (1.) J. C. Gupta and S. K. Agarwal, JJ. Appellant Mahipal Singh has filed this appeal against the judgment and order dated 16-8-1980 passed by Sri N. N. Sharma, the then Session Judge, Aligarh con victing the appellant under Section 302, I. P. C. and sentencing him to imprisonment for life.
(2.) APPELLANT Mahipal Singh and co-accuse Surajpal Singh were tried together for committing the murder of Smt. Jaywanti at about 6. 30 a. m. on 22-4-1979. The First Information Report of the said incident was lodged by P. W.-2 Tota Ram, the husband of the deceased, at the police station on the same morning at 7. 30 a. m. The case as set up in the First Informa tion Report was that co-accused Surajpal Singh had taken possession of a portion of the Chak of the complainant and had in cluded the same in his Chak. A litigation was going on between the parties in that connection. On the fateful morning both the accused persons started digging the said land with spade for erection of a "burji". The wife of the First Informant with her son Mohan Lal objected to this act of the accused persons whereupon Surajpal Singh started abusing them. Hearing the abuses, First Informant Tola Ram, P. W.-2 Chandrapal Singh P. W.-5 and Amar Singh P. W.-4 also reached there. It is further stated that Surajpal accused then asked his son Mahipal Singh appellant to bring gun and kill the aforesaid persons so that litigation could be finished forever. Mahipal Singh accused then entered into the "kothari" of his tube-well and brought licenced gun and then opened fire towards Total Ram, however, Jaywanti came in be tween and the shot hit her and she fell down on the ground. It is further alleged that Mahipal Singh then fired a second shot but the same did not hit anyone. It is then claimed that Amar Singh and Chandrapal witnesses came forward and grappled with Mohan Lal and succeeded in snatching gun from Mahipal Singh after giving him a beating with Lathi and Sankhi. The First Informant after leaving the snatched gun at his house got First Information Report Ex. Ka-2 scribed by Amar Singh and lodged the same at the police station at 7. 30a. m. Sri Indrajit Sharma P. W.-9who was posted as station officer Atrauli was present at the police station when the F. I. R. was lodged. He took up the inves tigation and interrogated Tota Ram and Mohan Lal at the police station itself and then went to the spot, where after inspec tion he prepared site plan Ex. Ka- 10. Sub-Inspector Shivpal Singh completed the in quest proceedings under the order of the station officer. Blood stained earth and plain earth Ex.-l and Ex.-2 were also taken in possession of by- the investigating of ficer through Memo Ex. Ka-3. One Dhoti was also found on the spot which was taken into custody vide Memo Ex. Ka-3. The investigating officer thereafter recorded statements of other witnesses and after completing investigation sub mitted charge-sheet against both the ac cused namely; appellant Mahipal Singh and his father Surajpal Singh. Dr. Sushil Kumar Suri P. W.-6 con ducted autopsy on the dead body of Smt. Jaywanti on 23-4-1979 at 3. 15 p. m. and only one ante-mortem injury; Le. a gun shot wound of entry on the forehead left side 3" x 1-3/4 x Brain cavity deep, with brain matter coming out was found, which had blackening. In the internal examina tion fracture of frontal bone on left side was found. Membranes were also ruptured on left side and the portion of brain was coming out from the wound. Twenty shots and one wadding piece were recovered from brain matter. Post-mortem report Ex. Ka-7 was prepared by the said doctor.
(3.) INJURIES of Mohan Lal were ex amined on 22-4-1979 at 10. 00 a. m. and following injury was found Abrasion 7. 5 cm. x 2 cm. on the Anterio medial aspect of right upper arm placed obiquely, 8 cm. below the right shoulder joint. Serum & blood oozing was present. In the opinion of the doctor the injury was simple caused by friction of some hard object. The defence of the accused persons was that the prosecution version was not correct. Accused Surajpal stated before the Court in his statement under Section 313, Cr. P. C. that Tota Ram, Mohan Lal, Shri Ram, Kailashi came there armed with Lathi, Pharsa and Ballam and started as saulting him and Mahipal and snatched the gun which in the course of scuffle went off.;