LAKSHMAN URAON,J. - (1.) APPELLANTS Radha Singh alias Ragho Singh (Cr. Appeal No. 139 of 1991) and Sudama Mistry (Cr. Appeal No. 131 of 1991) have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The other appellant, namely, Lalji Singh, Ram Prasad Singh and Rajendra Mistry (Cr. Appeal No. 131 of 1991) have been convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. All the appellants have further been convicted under Sections 452 and 148 of the Indian Penal Code but no separate sentence has been awarded under these counts. Similarly Lalji Singh has further been convicted under Section 380 of the Indian Penal Code whereas others have been convicted under Section 380/149 of the Indian Penal Code but no separate sentence has been passed under those Sections.
(2.) THE prosecution case, as per the statement (Ext.4) of the informant Radhika Singh (PW 7) recorded on 26.7.1987 at 7.15 a.m. is that on 25.7.1987 in the night at about 9.00 p.m. he was sitting on the Dhaba along with his Fyfe Nihora Singh, Fufu Bulki Devi (PW 6), mother Pushpa Devi (PW 4). grand -mother Bouran Devi, Grand -father Harihar Singh, sister Dilamati Kumari, brother Girja Singh and little children. Dilawati Kumari was cooking the food. At that time the door was opened. Appellants Radha Singh alias Ragho Singh Lillie Singh, Ram Ram Prasad Singh, Sudama Mistry, Rajendra Mistry, along with two unknown persons, armed with small pistols and torches, reached there. The unknown two criminals had big guns in their hands. Lantern was burning in the room and Dhibri was burning in the Dhaba. Radha Singh alias Ragho Singh enquired from the informant Radhika Singh as to whether Mohan Singh, who is in service, had come to home or not and slapped him twice. When he did not reply then Sudama Mistry went to Harihar Singh and assaulted him and asked as to where his son Mohan had gone. In the Dhaba Ram Prasad Singh and Rajendra Mistry (appellants) remained near the informant and others. Radha Singh alias Ragho Singh tied their hands with rope from behind. Thereafter, Radha Singh alias Ragho Singh entered into the room in search of Mohan Singh, asking that he is in service and maintaining the family members otherwise the family members would have died of hunger. He also asked the other associates to search Mohan Singh and to kill him. When Mohan Singh was not found, then Radha Singh alias Ragho Singh threatened Harihar Singh on the point of country made pistol to cause his murder only because he is Ojha and fired at him. Lalji Singh appellant took away utensils i.e. Ful Thali -5, Lata -4 and Batua -4. Thereafter he handed over those utensils to his associates. They also threatened the inmates of the family that if they would raise any Hulla, they will cause their murder also. In course of leaving the home of the informant, they locked the door. The informant saw that his grand -father Harihar Singh had sustained injury by the side of his nose and had died. The alleged occurrence took place only because the appellants were saying Harihar Singh to be an Ojha. In the year, 1984 also appellants Radha Singh, Ram Prasad Singh and Lalji Singh had assaulted Mohan Singh. They had also threatened Harihar Singh and Mohan Singh to cause their murders. The appellants had entered with an intention to cause the murder of Mohan Singh. On search when Mohan Singh was not found in the home, as he had not returned from his service place at Daltonganj, then they caused murder of Harihar Singh. From the space of northern side of Dhaba he came out and unlocked the chain of the door. As it was night hence out of fear he did not go anywhere. In the morning he went to Daltonganj to inform his uncle Mohan Singh and thereafter, they went to the police station and informed the police. His statement was recorded on which he signed (Ext.2) and it was also signed by Mohan Singh (Ext. 2/1 ). In the present case the prosecution has examined altogether 12 witnesses to prove its case. As it was night at 9.00 p.m., the informant (P.W. 7) Radhika Singh along with all the family members was at home and his Fufu Bulki Devi (PW 6), Fufa Nihora Singh, grand -mother, grand -father, sister and other children were also there. His parents were on the western side of the Dhaba. At that time all the appellants, namely, Radha Singh alias Ragho Singh, Lalji Singh, Ram Prasad Singh, Sudama Mistry, Rajendra Mistry and two unknown persons reached there. Each of the appellants had pistols and torches in their hands whereas the unknown persons had big guns and torches. In the Dhaba a Dhibri was burning and in the room a lantern was burning. The informant claimed to have identified the appellants in the light of Dhibri and lantern. All the appellants are of the same village. Appellant Radha Singh alias Ragho Singh enquired from this witness (informant) about Mohan Singh. When he informed that Mohan was at Daltonganj and had not returned home on that day, then he (informant) was slapped by Radha Singh. Appellant Sudama Mistry asked Harihar Singh as to where his son Mohan was and when he also replied that Mohan Singh had not come home then appellant Sudama Mistry and Radha Singh alias Ragho Singh dragged Harihar Singh from the Dhaba and took him inside the room in search of Mohan Singh. Appellant Rajendra Mistry and Ram Prasad Singh scattered the grains and wheat on the floor which was kept in sacks. Lalji Singh ordered to kill Harihar Singh. Then Radha Singh alias Ragho Singh with his pistol fired, causing injury on the right side of cheek of Harihar Singh. Appellant Sudama Mistry fired with pistol and caused injury on the auxiliary region. Harihar Singh on being injured died instantaneously. Thereafter, Lalji took four Batua, 5 Ful Thali, 6 Lota, ornaments and some cash amount. While leaving the home of the informant, they threatened not to raise any Hulla and bolted the chain of the door from outside. They murdered Harihar Singh saying that he was Ojha. The informant along with Jago Singh went to Daltonganj and informed Mohan Singh about the alleged occurrence. The dead body of Harihar Singh was kept in Dhaba. They went to Chainpur Police Station where the statement of the informant was recorded, on which he signed (Ext. 2). The Investigating Officer after recording the First Information Report, went to the P.O. village and saw the dead body of Harihar Singh. The alleged occurrence took place only due to enmity as in the year, 1984 also there was Marpit resulting institution of case against Mohan Singh and others in which they were acquitted and due to that criminal case, they have caused the murder. They had intention to cause murder of Mohan Singh but when he was not met, then Harihar Singh was murdered. At night it was raining heavily and hence none of the villagers went to the house of the informant. In the morning when the informant was likely to go to Daltonganj then Jago Singh and Balgovind Singh reached his house. The informant informed only Mohan Singh about the alleged occurrence and none else. He has stated before the Investigating Officer that Harihar Singh, his grand -father, was shot by Sudama Mistry near the auxiliary region with pistol whereas Radha Singh alias Ragho Singh fired with pistol causing injury on the right cheek. In the First Information Report, the informant Radhika Singh has not stated anything regarding opening of fire with pistol by Sudama Mistry, causing injury to Harihar Singh on his right auxiliary region.
(3.) DR . Krishna Murari Sah (PW 1) on 26.7.1987 at 3.45 p.m. conducted the postmortem examination on the dead body of Harihar Singh and found (i) lacerated wound on right auxiliary region 4" x 2 1/2" x inverted margin. Tattooing was present with scattered pellets. There was no wound of exit, (ii) lacerated wound on the right side of the face extending from mid of the nose up to chin. Margin was inverted: Tattooing was present with scattered pellets. There was no wound of exit. On dissection (i) Large haematoma on the auxiliary area and major auxiliary arteries were distorted. Wades three in number were lying beneath the wound and (ii) Large laceration of the facial vessels with multiple haematoma were present. Wades three in number and pellets four in number were sealed and handed over to the Hawildar. This witness has opined that the injuries were inflicted by fire arm caused by two different shots. The cause of death was due to shock and haemorrhage resulting from the abovementioned injuries. The time elapsed since death was 6 to 48 hours since the post mortem examination. Injury no.1 was sufficient in ordinary course of nature to cause death. This witness in his pen and signature prepared the post -mortem report (Ext.1). In his cross -examination the doctor (PW 1) has deposed that he did not find blackening and charring in any of the two injuries. Both the injuries were possible by two shots by one man with the same gun. The injuries were also possible by pistols. He could not say about the type of fire arm used in the alleged murder. The injuries might have been caused from a distance of about 4 ft. He could not differentiate the injuries caused by gun and a pistol. He is even not aware of the Modi's Jurisprudence that pistol and gun shot injuries would have different effect.;