BAREY LALLA Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Kaplan Singh, Dularey and Malhey against their conviction and sentence to death under Section 302, I. P. C. , so far as Kaptan Singh is concerned, and Section 302/149, I. P. C. , so far as Dularey and Malhey are concerned, with the aid of Section 303, I. P. C. Kaptan Singh and Da-larey have also appealed against their conviction and sentence to undergo two years' R. I. each under Section 148, I. P. C. There is also a usual reference in respect of these three accused for confirmation of death sentence by the learned Sessions Judge. Appeals by Sukkha, Ram Dayal, Bisrara, Lankush Shankar and Barey Lalla have also been filed against their sentence and conviction to undergo life imprisonment under Section 302/149, I. P. C. each for murder of Vijai Bahadur Singh and Smt. Beti, Shanker has also appealed against his sentence and conviction to undergo two years' R. I. under Section 148, I. P. C. , while remaining accused noted above have come up in appeal against their sentence and conviction to undergo one year's R. I. each under Section 147, I. P. C. Accused Balbir has come up in appeal against his sentence and conviction to life imprisonment under Section 302, I. P. C. for having committed murder of Smt. Beti as well as for sentence and conviction under Section 302/149, I. P. C. for the commission of the murder of Vijai Bahadur Singh. He has also come up in appeal against his sentence and conviction to undergo two years' R. I. under Section 148, I. P. C. The sentences of all these accused on various counts were ordered to run concurrently. All these appeals and the reference as noted above were heard together and these shall be disposed of by one judgment.

(2.) ACCUSED Kaptan Singh and Balbir Singh are real brothers. They live in one house in village Gauriya. Accused Dularev and Malhey alias Phool Singh are also real brothers and they are uncles of Kaptan Singh and Balbir Singh. Accused Bisram is son of accused Dularey. They also live in this very village. Accused Shanker is mausara bhai of accused Kap-tan Singh and Balbir Singh. Accused Sukkha is sarhu of accused Dularey. Accused Lankush is cousin of accused Sukkha. Accused Ram Dayal is nephew of accused Kaptan Singh. All these accused also reside in village Gauriya, Accused Barey Lalla is a resident of village Gau-hana. Ham Krishna Singh and Vijai Bahadur Singh, who is now dead, were real brothers, and they also resided in one house in this village Gauriya along with their mother. Smt. Beti deceased. The house of Ram Krishna lies to the extreme north of the village. The prosecution story is that there is a long standing enmity between the family of Ram Krishna Singh, on one hand, and the family of Kaptan Singh, on the other, in this way that in the year 1955 Ram Prasad, father of accused Kaptan Singh, was murdered, Vijai Bahadur deceased, his brother Ram Krishna Singh, his uncle Bhuri Singh and four others were implicated in that murder as accused, but were acquitted on trial. After about 2 or 3 months of the aforesaid murder, one Badnu, uncle of Vijai Bahadur deceased, was murdered. Hardeo, who was brother of accused Kaptan Singh and who was also made an accused in this case, but he having died earlier to the trial had escaped sentence and conviction, had been implicated as an accused along with others, but had secured an acquittal. In the year 1958, Bhuri Singh was murdered. In that murder case Kaptan Singh, Hardeo Singh, Dularey, Malhey and others were implicated and they were sentenced to life imprisonment. Their appeal was also dismissed by the High Court. Kaptan Singh, Malhey and Dularey were released in 1967 on probation. In the year 1970 Ranbir, another torother of Kaptan Singh, was murdered and in that murder case Vijai Bahadur deceased along with Ram Krishna Singh and others were implicated. That case was said to be still pending when this occurrence took place. It may be noted here that later on, that case ended in acquittal. Apart from these murders of one or the other of the members of either family there were two cases fought out in between these families under Sections 107/117, Cr. P. C. in which one party consisted of accused Kaptan Singh, Hardeo deceased and others, while the other party consisted of deceased Vijai Bahadur and others, it was further alleged that 5 or 6 days before this incident, Ram Krishna Singh had helped police in an encounter that took place between the police, on one hand, and the gang of Gulshera and Shamshera, on the other, in which Babu, brother of Gulshera and Shamshera, along with two others was apprehended. This incident is said to have closely brought together the gang of Gulshera and Shamshera and the group of Kaptan Singh which group was already friendly with this gang of Gulshera and Shamshera.

(3.) THE prosecution story now reads in this way that on 23-3-1973, at about 9 A. M. , Ram Krishna Singh was going towards his well, which was situate in front of his house, with the object of taking bath. At that very time, his brother Vijai Bahadur deceased was engaged in giving fodder to his cattle which were tied at the charni which was also situate in front of his house under a Neem tree. At that very occasion, Ram Krishna Singh saw a group of 14 persons, which included Gulshera, Girish and Kaptan Singh, armed with rifles, Balbir, Dularey, Shanker and Shamshera, armed with guns, Hardeo, armed with a spear, Sukkha, Ram Dayal, Bisram, Malhey, Lankush and Barey Lalla, armed with lathis, approaching from the northern direction. Seeing this group, both these brothers raising an alarm started running towards their house. They reached their barotha where their mother, Smt. Beti, was sitting. These assailants, however, managed to reach the door and when they tried to enter, Smt. Beti attempted to close the door with the result that Balbir accused was said to have shot at Smt. Beti on account of which she fell down dead. In the meantime, both the brothers had come inside their courtyard. In the courtyard were present Smt. Kamla Devi, wife of Vijai Bahadur, along with her son, Jagbir Singh, and other ladies and children who had however, in the meantime managed to escape inside the southern kothari. Entering the house, Hardeo is said to have aimed a bhala blow at Vijai Bahadur, Vijai Bahadur however, caught the bhala and threw it down. Kaptan Singh accused thereupon fired at Vijai Bahadur on account of which he fell down dead. In the meantime, several people including Sunder Singh, Shri Krishna, Sheo Ratan and Baldeo are said to have come upon the roof of the house of one Prithviraj and from there they had managed to see the occurrence. Ram Krishna Singh, although he was shot several times, however, managed to escape by going inside the aforesaid kothari which faces east and had closed the door from inside. Smt. Kamla Devi, however, picked up the spear that had been thrown by her husband and gave a blow upon accused Kaptan Singh on account of which he received injuries. In the meantime, 6 or 7 shots were fired and some of the pellets are said to have injured Jagbir Singh. Thereafter, all these accused and their companions managed to make good their escape. After the departure of the assailants, Ram Krishna Singh came out of the house and dictated F. I. R. Ext. Ka-7 to Narbir Singh and taking this F. I. R. with him, he went to P. S. Harpalpur which lay at a distance of about 10 miles, where he handed over this F. I. R, on the same date at about 11-15 a. m. Sri T. P. Singh, who was posted as Second Officer P. S. Harpalpur, took up investigation. He interrogated Ram Krishna Singh at the police station and then left for village Gauriya where he reached at about 2-30 p. m. He prepared inquest reports relating to the dead bodies of Smt. Beti and Vijai Bahadur. He found Jagbir Singh in an injured condition. The two dead bodies in a sealed condition along with Jagbir Singh were despatched to District Hospital Fa-tehgarh. The investigating Officer took possession over blood-stained and plain earth which he sealed in separate containers. He also found 4 fired cartridges, 2 of which bore the mark P. O. F. (Pakistan Ordnance Factory) while the remaining bore the mark K. F. He also found fired cartridges of 12 bore, three L. G. pellets, one piece of lethal and bullet of 300 bore rifle. These were properly sealed.