Judgment

K. JAVACHANDRA REDDY, J. - This is an appeal under S. 379, Cr. P.C. read with S. 2(a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act. Suraj Pal, the appellant (original accused No. 1) along with three others namely Ram Laterey, Anokhey and Ram Saroop, was tried under S. 302/34, IPC for the offence of committing the murder of Surendra Nath, the deceased in this case. They were also tried u/S. 307/34, IPC for causing injuries to Smt. Satyawati, P.W. 2 and Jiwa Ram, P.W. 1. The trial Court acquitted all of them. The State preferred an appeal and the High Court convicted the appellant under S. 302, IPC, and sentenced him to undergo imprisonment for life. Anokhe accused was convicted under S. 324, IPC. and sentenced to undergo R.I. for three years. The acquittal of the other two accused was confirmed by the High Court. This appeal is confined to the case of Suraj Pal, A-1 only.

2. The prosecution case is as follows.

The accused, the deceased and the material witnesses belong to Village Sokha, District Etah. P.W. 1 Jiwa Ram, Raghubar Dayal and Anokhey are real brothers. The deceased and one Jagdish were the two sons of Raghobar Dayal. P.W. 1 was unmarried. P.W. 2 is the wife of youngest brother of P.W. 1. The other accused were said to be belonging to the party of the appellant. In Village Sokha only Brahmins lived and the population was only about 50 persons. There was some open land near the house of P. W. 1. The area of the land was about two Bighas. P.W. 1 and his brothers were using it for tethering their cattle and had fixed their wooden pegs in that land. The appellant and his nephews were laying claim on the said land as the land belonged to Gram Samaj. They, however, succeeded in getting a lease deed from Gram Samaj. Because of this there were misunderstandings. A few months before the occurrence, the appellant and his nephews raised a wall on a portion of the disputed land and raised thatched hut. Twenty days before the occurrence, P.W. 1 and his brothers succeeded in the litigation in respect of the said land. The Patta executed by the Gram Samaj in favour of the accused was cancelled. A day before the occurrence in the evening all the four accused came there and tried to fix the wooden pegs. P.W. 1 as well as his other brothers resisted. The accused returned disappointed but while leaving the field they advanced a threat. On 20-11-74 at about 8 a.m. all the accused came to the said field. The appellant was armed with a licensed gun of his father. Ram Laretely had a country-made pistol while the remaining two accused Anokhey and Ram Saroop had spears with them. All these four accused came in front of the house of P.W. 1. At that time, Raghubar Dayal, brother of complainant P.W. 1 and P.W. 2 were present there along with P.W. 1. The accused started abusing them. P.W. 1 and his brother Raghubar Dayal tried to pacify the accused. Just at that time the deceased Surendra Nath who was inside the house came out. P.W. 3 Radhey Shyam and P.W. 4 Subedar and one Ram Niwas also witnessed the occurrence. Ram Saroop, accused instigated the appellant to shoot the deceased who gave a threat that they would not care for the gun and would not allow them to have illegal possession. At the instigation of Ram Saroop, the appellant fired a shot towards the deceased. The deceased was injured and he fell down. Another shot fired by Ram Laretey accused with a country-made pistol caused an injury to P.W. 2. The other accused wielded their bhalas and P.W. 1. received injury on his head. P.W. 1. went and got a report drafted by P. W. 11 and presented the same in the police station at 10 a.m. on the same day. A case was registered by P.W. 8 and he held the inquest over the dead body of the deceased and P.Ws. 1 and 2 were sent for medical examination. P.W. 7, Dr. R. R. Sharma, examined P.W. 1 and found on him one incised wound 3 cm x 1 cm x scalp deep on the right side of forehead, an abrasion on the back of left fore-arm and ano