LOKESHWAR SINGH PANTA,J. - (1.) THIS appeal is filed by Mahendra Pratap Singh - appellant herein under S.2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the final judgment and order dated 29.07.2005 passed by the High Court of Judicature at Allahabad in Appeal No. 142 of 1981. By the impugned judgment, the High Court has set aside the order of acquittal dated 09.10.1980 of the appellant passed by the Sessions Judge, Jhansi, in Sessions Trial No. A - 135 of 1975 under S.304 Part - II, under S.307 and S.324 of the Indian Penal Code (for short the "IPC") and under S.25 of the Arms Act and as a result thereof he has been sentenced to undergo rigorous imprisonment for 10 years under S.304 Part - II, 7 years R.I. under S.307 IPC, 6 months R.I. under S.324 IPC and 2 years R.I. under S.25 of the Arms Act.
(2.) THE incident leading to the prosecution of the appellant occurred on 12.02.1975 at about 1.00 P.M. at bus stand Lalitpur. According to the prosecution case, on the day of the incident one passenger Bus No. MPR 5393 on its route from Madanpur to Jhansi was stopped by its driver Sukhnandan (CW 3) at bus stand Lalitpur. The departure time of the said bus from the bus stand Lalitpur was 1.00 P.M., but it remained parked till 1.10 P.M. beyond schedule time fixed by the Road Transport Authority. One more Bus No. USG 5519 came from Jammi Dem and reached bus stand Lalitpur at about 1.15 P.M. as per schedule time which was to proceed from Lalitpur bus stand at 1.20 P.M. for Jhansi. Matin Khan (PW 8) driver of Bus No. USG 5519 stopped the vehicle at bus stand Lalitpur at 1.00 P.M. Laxman Dass (PW 4) and his brother Prahlad Babu (PW 9) the owners of the said bus reached at bus stand Lalitpur for settlement of fare accounts with PW 8 Matin Khan - Driver. They noticed some passengers boarding Bus No. MPR 5393 in place of their bus. They asked Sukhnandan (CW 3) driver of Bus No. MPR 5393, to drive his vehicle out of the parking place in order to provide halting place for their bus. The appellant allegedly was standing behind the bus armed with a rifle and was supervising his luggage being unloaded by the conductor from the bus - roof top. PW Prahlad Babu told the appellant that he would lose his passengers and the appellant could get the luggage unloaded after the bus moved ahead of the halting place. On this, the appellant allegedly threatened to shoot PW Prahlad Babu with his rifle if such request would be repeated. PW Prahlad Babu retorted saying that like the appellant, he has seen many shooters in his lifetime. The case of the prosecution further was that the appellant raised his rifle and fired single bullet shot causing injuries to four persons, namely, PW Prahlad Babu, Dhanna Lal (CW 1), Ram Ratan Joshi (CW 2) and Devendra Singh (Deceased) who allegedly were all standing behind PW Prahlad Babu. The appellant tried to re - load the rifle, but was over - powered by the passengers present at the place of occurrence. In the melee, someone hurled a stone which hurt the head of PW Laxman Dass. The prosecution proceeded to allege that PW - Laxman Dass handed over the appellant on spot to the custody of PW Matin Khan, Vimal Kumar Tewari (PW 10) and Shikhar Chand Naik (PW 13), etc. asking them to wait at the spot till his return. PW Laxman Dass carried injured PW Prahlad Babu, CW 1 Dhanna Lal and Devendra Singh on a Thela to the adjoining District Hospital at Lalitpur. CW 2 injured Ram Ratan Joshi walked himself to the hospital. Dr. S. P. Singh (PW 3) who medically examined the injured persons between 2.00 P.M. and 3.15 P.M. requested Shri B. D. Sharma (PW 19) Sub - Divisional Magistrate of District - Lalitpur to reach at the hospital where PW 19 recorded the statements of the injured. PW Vimal Kumar Tiwari left the place of occurrence and went to the hospital to take PW Laxman Dass with him to the police station. PW Vimal Kumar Tiwari recorded the statement (Ext. Ka - 22) of PW Laxman Dass and handed over the same to the Police at Police Station; on the basis of the said statement, First Information Report came to be registered. PW Vimal Kumar Tiwari and other persons took the appellant to the Police Station. Constable Sukhram Singh (PW 15) lodged the appellant in police lock up. He sealed the rifle and four live cartridges found inside it. PW Prahlad Babu and Devendra Singh were taken to the Medical College, Jhansi, but on the way Devendra Singh died. PW Prahlad Babu remained indoor patient in the Medical College for more than three weeks.
(3.) THE investigation of the case was conducted by K. P. Singh (PW 17), Station Officer, Police Station Girwar, District Lalitpur. He recorded the statement of PW Constable Sukhram Singh. He also recorded the statement of PW Vimal Kumar Tiwari at the Police Station and then left to the scene of occurrence where statement of PW Laxman Dass was recorded and Site Plan (Ext. K - 42) of the spot was prepared. He collected blood - stained earth and plain earth from the spot and sealed them in separate packets (Exts. 16 and 17). He recorded the statements of CW Ram Ratan Joshi and CW Dhanna Lal, injured persons. On 15.02.1975, he handed over the investigation of this case to Shri Chottey Lal Tewari (PW 18) who, at the relevant time was Station Officer at Kotwali, Lalitpur.;