DIWAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been filed by Diwan Singh, Gyan Singh, Darshan Singh and Makhan Singh against the judgment and order dated 23.10.1978 passed by the Sessions Judge, Pilibhit, thereby convicting appellant Darshan Singh under Section 302, I.P.C. simpliciter and convicting the appellants Diwan Singh, Gyan Singh and Makhan Singh under Section 302/34, I.P.C. and sentencing each of them to imprisonment for life under the respective sections.

(2.) The charge against -the appellants was that on 27.9.1987 at about 8.30 P.M. they committed the murder of Kikkar Singh near the Jhala of Kartar Singh in Bazarghat No.2, falling within Police Station Madho Tanda, Outpost Hazara and thereby committed an offence punishable under Sections 302 and 30.2134, I.P.C.

(3.) According to the prosecution case, Diwan Singh, Gyan Singh and Darshan Singh appellants are real brothers and Makhan Singh is their cousin. Sometime ago Kikkar Singh deceased had caused a stab wound to Jeet Singh, the son of maternal uncle of Darshan Singh in which Darshan Singh was a witness. Sometime later Kikkar Singh is said to have beaten Diwan Singh with lathies. There was, therefore, enough enmity between the accused on the one hand and Kikkar Singh on the other. In the night between 27/28-9-1987 at about 8.30 P.M. Kikkar Singh deceased along Pahalwan Singh (P.W. 1) and Phuman Singh, P.W. 2, and Balbir Singh, P.W. 3 was coming towards the house of Kikkar Singh. Near the Jhala of Makhan appellants Darshan Singh and Makhan Singh armed with guns and appellants Diwan Singh and Gyan Singh armed with lathies came out from the Jhala side. Darshan Singh exhorted his companions to surround Kikkar Singh, so that he could shoot him dead. Thereupon all the four appellants ran towards. Kikkar Singh who ran towards his house raising alarm as a result of which Bakar Singh, father of the deceased, came out of the Jhala. In the meantime Darshan Singh appellant fired his gun from behind at Kikkar Singh hitting him on his back on account of which he fell down and died. Thereafter the accused ran away. The dead body of Kikkar Singh was removed to his house. Bakar Singh, father of Kikkar Singh deceased, lodged F.I.R. (Ex. Ka-4) at 10.15 P.M. at the police outpost which was about 8 kms. away from the scene of occurrence. P.W. 6 Rajcsh Singh, head constable, made G.D. entries, a copy of which is Ex-Ka-5, registering the case. P.W. 7 Raghunath Singh Tyagi, S.I. was present at the police outpost at the time of lodging the F.I.R. He took up the investigation and recorded the statement of Bakar Singh and reached the scene of occurrence at 1.40 A.M. Having found the dead body of Kikkar Singh in front of his house, he completed the inquest report on the dead body on 28.9.1977 at 7 A.M. in the presence of Panch as and prepared an inquest report Ex. Ka-6. He sent the dead body for post mortem examination through P.W. 8 Banwari Lal, and Kameshwar Prasad, constables, and the post mortem examination was conducted by P.W. 41.M. L. Mora on 29.9.1977 at 1.30 P.M. The following antemortem injuries were found on the kikkar body of Kikkar Singh: 1. Gunshot wound of entry with inverted and lacerated margin 0.6. cm. x. 6 cm. x. chest cavity on right side back of shoulder blade. 2. Gunshot wound of entry with lacerated and inverted margin, 6 cm. x 6 cm. x chest cavity 4 cms. above the injury no. 1 at 11 Oclock position. 3. Gunshot wound of entry with lacerated and inverted margin, 6 x 6 cm. x chest cavity on the left side back of chest 8 cms. outer to the mid-line, 11 th thorax vertebra.