(1.) Malkhan has preferred this appeal against his conviction under Sections 307 and 302, I.P.C. and sentence of 7 years R.I. and imprisonment for life by the judgment and order dated 26-10-1979 by IXth Addl. Sessions Judge, Bareilly in S.T. No. 283 of 1978. Rampal was also prosecuted along with the appellant in S.T. No. 9 of 1979. He was convicted under Section 323, I.P.C. and was sentenced to the period already undergone. He has however not preferred any appeal against his conviction.
(2.) The case of prosecution, in brief, is that a quarrel took place between the children of the appellant-Malkhan and the deceased Khunnu in which the appellant gave abuses to the deceased and his parents. The deceased wanted to lodge a F.I.R. but on account of intervention by the village people he did not do so though the appellant had held out a threat. At about 4.00 P.M. on the date of incident i.e. 12-2-1978 Km. Mania daughter of the appellant and co-accused Rampal plucked peas from the field of the deceased. The deceased lodged a protest about it to Malkhan. On this Malkhan and his cousin Rampal started abusing Beni (father of Khunnu-deceased). Beni objected to the abuses on which Rampal assaulted him with a lathi. Smt. Ramkali w/o Beni rushed to save her husband. Malkhan then climbed over the roof of his "Khaprail" and fired from there twice from his gun which hit Khunnu and Smt. Ramkali. Some persons of the village who had arrived on the scene reprimanded Malkhan who then went inside the house. Khunnu then carried his mother Smt. Ramkali on a tonga to P. S. Faridpur which is 6 Km. from the place of occurrence and lodged an oral report of 8.00 p.m.
(3.) Khunnu and Smt. Ramkali were sent to P.H.C. Faridpur along with Constable Chandrapal where they were medically examined by Dr. R. P. Goel who found gun shot injuries on the body of both the injured. Beni was also examined at P.H.C. Faridpur on the next day and a lacerated wound was found on his person. The case was initially investigated by Suraj Singh S.I. and after his transfer the investigation was taken over by Bhagwati Prasad Misra, S.O. of P. S. Faridpur. Suraj Singh went to village Bikku Nagla in the night and collected plain and blood stained earth from the spot and prepared its recovery memo. Khunnu was admitted in the district hospital. He succumbed to his injuries on 4-3-1978. After his death, the case which had been initially registered under Sections 323/307, I.P.C. was converted into S. 302, I.P.C. Bhagwati Prasad Mistra, S.O. of P. S. Faridpur, after completing investigation, submitted charge-sheet against appellant Malkhan and Rampal on 10-9-1978.