BUDH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The appeal in question has been filed by the two accused-appellants (real brothers) against the judgment and order dated 25-5-1981, passed by Sri Jaswant Singh, the then IInd Additional Sessions Judge, Bijrior. Accuscd-Budh Singh has been convicted under S. 304, Part I and under S. 323, I.P.C. For the former offence, rigorous imprisonment for ten years and fine of Rs. 1000/- has been imposed. In default of payment of fine, he has to undergo further rigorous imprisonment for three months. Three months' rigorous imprisonment has been imposed under S. 323, I.P.C. Both the substantive sentences of imprisonment have been ordered to run concurrently. Accused-Baljeet has been convicted under S. 307, I.P.C. and sentenced to three years' rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine, he has to further undergo rigorous imprisonment for two months. He has also been convicted under S. 25 of Arms Act and sentenced to six months' rigorous imprisonment. His substantive sentences of rigorous imprisonment have also been directed to run concurrently.

(2.) The compLalnant of the incident, namely, Chhatar Singh injured has filed Criminal Revision No. 1087 of 1981 for modifying the conviction of the accused-appellants to S. 302, I.P.C. and for sentencing them accordingly. The criminal revision has been connected with this criminal appeal and both the matters have analogously been heard to be decided together.

(3.) The relevant facts may be stated. The incident took place on 7-6-1980 at about 7.30 a.m. in the jungle of village Shahbad alias Dam Nagar, P.S. Nahtaur, District Bijnor. The chaks of the parties were on both sides of chak-road. The chak of compLaln- ant-Chhatar Singh was towards west of the chak-road while that of the accused-appellants was towards the east of the said chak- road. On 5-6-1980, the accused-Budh Singh had encroached upon the chak-road and raised Mend of his chak, causing hindrance in the passing of Buggi (buffalo-cart) of the compLalnant-Chhatar Singh. On 6-6-1980, Chhatar Singh's father Lalloo Singh (deceased) demolished the Mend of the field of the accused-Budh Singh which was raised by him the previous day. In the evening of 6-6-1980, the accused-Budh Singh, who was Pradhan of the village, threatened Jhabrey Singh (uncle of the compLalnant-Chhatar Singh) that he would again raise the Mend of his field and Lalloo Singh and his sons could do anything they liked. In the early morning of 7-6-1980 at about 7 a.m. the compLalnant-Chhatar Singh and his brother Mangoo Singh were digging the field of their sugarcane crop and their father Lalloo Singh was on his tubewell. At about 7.30 a.m., accused-Budh Singh armed with a double barrel gun and accused-Baljeet Singh armed with a Tamancha (countrymade pistol) came on their field and again raised the Mend of their field towards the chak- road. The deceased-Lalloo Singh prevented them from raising the Mend but they paid no heed. In the meantime, the accused- Baljeet Singh asked his brother Budh Singh to kill Lalloo Singh. Budh Singh then fired a shot from his gun on Lalloo Singh as a result of which he died at the spot. The compLalnant-Chhatar Singh gave a Phawra (spade) blow to Budh Singh with the result his gun fell down on the ground which was taken away by Jhabrey Singh uncle of the compLalnant. Then Baljeet Singh fired a shot from his countrymade pistol on Mangoo Singh causing injury on his head. Again, the compLalnant-Chhatar Singh gave a spade blow to the accused-Baljeet Singh as a result of which his countrymade pistol also fell on the ground. Then the accused-Budh Singh took a spade and gave blows to the compLalnant-Chhatar Singh, causing injury on his shoulder. Then both the accused ran away from the spot. This incident was witnessed by three witnesses, namely, Jhabrey Singh, Pooran and Ram Charan. Thereafter, the compLalnant-Chhatar Singh took the gun of Budh Singh and countrymade pistol of Baljeet Singh and kept the same in the Kothari of his tubewell which was locked. Then leaving the dead body of his father in the field in the supervision of his family members, he went to the Police Station where he lodged the written F.I.R. of the incident on 7-6-1980 at 9.30 a.m. written by Dal Chanel Rathi. The distance of the Police Station from the place of occurrence was about five miles. A case was registered against both the accused and the injured Chhatar Singh and Mangoo Singh were sent to the State Dispensary, Nehtaur for medical exmination which was conducted by Dr. V. K. Bansal P.W. 4 at 10.30 a.m. and 10.45 a.m. respectively. The following injury was found on the person of Chhatar Singh as per Ex. Ka-3 :