ASHOK KUMAR MATHUR, J. - (1.) THE appeal is directed against the judgment of the learned Additional Sessions Judge, Sri Ganganagar dated July 28, 1976, by which the appellants Najarsingh and Jagroopsingh were convicted under Sections 302, 307 and 148, I.P.C. and Section 27 of the Arms Act, and accused Jeetsingh, Madasingh s/o Kartarsingh, Nichatarsingh and Madasingh s/o Surjansingh under Sections 148, 302/149 and 307, I.P.C. Each of them was sentenced to various terms, the highest being that of imprisonment for life under Section 302 or 302/149, I.P.C. The accused have come -up in appeal and challenge their conviction.
(2.) PW 14 Gilasingh is the brother and PW 18 Hakamsingh is the father of the deceased -victim Neelasingh. They and the appellants are residents of 5 -KK P.S. Gamurwali district Sri Ganganagar. Hakamsingh (PW 18), Kartarsingh, Mukhtiyarsingh and the appellant Najarsingh are urine brothers. Hakamsingh (PW 18) and the appellant Najarsingh had a common father Keharsingh by name. Keharsingh, in his life -time, made a partition of his agricultural lands in three lots. He gave one lot to PW 18 Kakamsingh, one lot to the appellant Najarsingh and kept one lot with himself. Later on, Kehar Singh gave the lot he had kept with himself to the deceased Neelasingh. This irked and annoyed Kartarsingh, Mukhtiyarsingh and the appellant Najarsingh. They started picking up quarrels with PW 18 Hakam Singh. Hakamsingh decided to sell his lands and shift to some other village. He made an agreement to sale his land to Jaswantsingh (PW 7) of 7 -KK. This further fanned the fire. The appellant Najarsingh filed civil suits and obtained injunction orders restraining Hakamsingh from selling his lands. In the evening of November 22, 1973, there was exchange of gun -shots between the members of the appellants families and Hakamsingh (PW 18). The appellants reported the matter to police. Hakamsingh went to 7 -KK to meet Jaswantsingh (PW 7) in the early morning of November 23. 1973. At about 8.30 a.m. on November 23, 1973, PW 14 Gilasingh and his brother Neelasingh (sons of PW 11 Hakamsingh) went together to their thrashing floor shown by mark 'i' in site plan Ex.P 13. The thrashing floor of appellant Najarsingh is situate contiguous in the North of the thrashing floor of Hakamsingh. While the two brothers were working in the thrashing floor, the appellants accompanied by Babasingh, Kartarsingh and Madasingh s/o Surjansingh came there, in the thrashing floor. Accused Madasingh s/o Surjan Singh had a Kassi, Babasingh had a 12 -bore gun and the rest had pistols. They started firing shots at Neelasingh, which hit him on his. back. Gilasing got frightened and ran away towards the village Abadi. Neelasingh ran towards the flour mill of PW 9 Baintsingh, situated in the South of the thrashing floor. The appellants ran after Gilasingh and fired shots at him which, however, could not hit him. Gilasingh (PW 14) reached his house and narrated the incident to his mother Nihar Kaur (PW 8). From there, he went to 7 -KK, where his father had gone to see Jaswantsingh. From 7 -KK, Hakamsingh Jaswantsingh and Gilasingh went to Police Station, Gamurwali, where Gila Singh verbally lodged report Ex.P 19 of the occurrence at about 11.30 a.m. on the same day. The police registered a case and proceeded with investigation The Station House Officer Umed Khan (PW 19) arrived on the spot and inspected the site. He found the dead body of Neelasingh lying on a cot outside the flour mill of PW 9 Baintsingh. He noticed the gun -shot injuries on the victim's dead body and prepared the inquest report. He also inspected the thrashing floor and found a turban lying there. Some pellets were found infested in the shutters of a room of the flour mill and a pellet on the flour Some wads were also found there. Four iron -bars of a window of the flour mill were found bent and moved to facilitate the passage for the intruders. The post -mortem examination of the victim's dead body was conducted at about 3.00 p.m. by PW 6 Dr. Pooniya the then Medical Officer Incharge. Primary Centre, Gamurwali. The doctor noticed the following ante -mortem wounds on the dead body: (1) Nine wounds of entry 0.7 c.m. in diameter each scattered in area of about 5 1/2 c.m. x 6 c.m. right lumber region posterio laterally; (2) Wound of exit with intestines and omentum coming out of wound to c.m. x 2 -1/2 c.m. on right hypochondrim just below coastal margin near mid line; (3) Wound of entry 1 c.m. x 1/2 c.m. on upper margin of right iliac crest 7 c.m. away from vertebrally column (4) Entry wound 1 c.m. x 6 c.m. left lumber region posteriorly 4 cm. below costal margin; (5) Exit wound with intestines coming out of wound and congested with fracture of 10th and 11th ribs at there free ends 3 c.m. x 2 c.m. on left hypochondrium in nipple line just below the costal margin; (6) Wound of entrance laceration of upper parts of pinna of right ear with brain matter coming out of the wound with multiple fracture of scalp bones, right parietal, temporal, occipital, frontal and left parietal (at parietal eminence) and left to occipital bone 3 -3/4 cm. x 2 -3/4 c.m. on scalp just above the pinna of right ear superiorly; (7) Lacerated wound with fracture of two central incisors and one left lateral incisor, teeth left half upper lip and gums. He also found four pellets (pea size) and one bullet deformed in shape in the abdomen and skull of the dead body. These pellets and bullet were seized and sealed. The doctor was of the opinion that the victim had died on account of severe haemorrhage and shock due to fire -arm injuries. The post -mortem report prepared by him is Ex.P 17. The blood -stained clothes of the victim were also seized and sealed. The miscreants were rounded -up and in consequence of their informations, pistols, gun, life and fired cartridges etc. were recovered. It transpired during investigation that the accused Mukhtiyar Singh and Modasingh were in judicial custody in the days preceding November 23, 1973. Neelasingh was done to death in the conspiracy hatched by them and the appellants. During investigation, Babasingh passed away. On the completion of investigation, the police filed a crime -sheet against nine accused persons, viz. Najarsingh, Jagroopsingh, Jeetsingh, Madasingh s/o Kartarsingh, Madasingh s/o Surjansingh, Nichatarsingh Mukhtiyarsingh, Kattarsingh and Modasingh, in the Court of Judicial Magistrate, Karanpur, who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge. He framed charges Under Sections 302, 302/149, 307, 307/149, 148 and 120B, I.P.C. against all of them. Additional charges under Section 27 of the Arms Act were framed against accused Najarsingh and Jagroopsingh. The accused pleaded not guilty and faced the trial. They denounced the whole prosecution story as a fabricated piece of concoction and claimed absolute innocence. In support of its case, the prosecution examined twenty witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of the trial, the learned Sessions Judge found no incriminating material against accused Mukhtiyarsingh, Kartarsingh and Modasingh. They were consequently acquitted of the offence they were charged with. The prosecution story was taken substantially true and the charges duly proved against the remaining six appellants. They were consequently convicted and sentenced, as mentioned at the very out -set. They were, however, acquitted of the charge of conspiracy punishable under Section 120B of the Penal Code. Aggrieved against their conviction, the appellants have taken this appeal.
(3.) DURING the pendency of appeal, the appellants Najarsingh and Madasingh s/o Surjansingh passed away. As such, the appeal filed by them stands abated to that extent.;