H.C. Mittal, J. - (1.) Param Hans has preferred this appeal against his conviction and sentence under Sections 302 and 324 both read with Section 34, I.P.C. to life imprisonment and two years rigorous imprisonment each. He has further been convicted and sentenced under Section 323, I.P.C. to six months rigorous imprisonment.
(2.) The prosecution case in brief is that about 13-14 years prior to the occurrence of this case Harbansh brother of this appellant had been murdered and for that murder deceased Rajdhari along with two others was convicted and sentenced to life imprisonment. Deceased Rajdhari after undergoing that sentence returned to his village Kund Bawari, P. S. Barhalganj, District Gorakhpur. However, the appellant and his other brothers Ram Shanker and Harbansh were out to take revenge. It is alleged that on 14-8-1977 at about 7 p. m. in the evening when the deceased was in his house and talking to one Ram Naresh, his wife Smt. Mewati (P.W. 1), daughter Smt. Israwati (deceased) and P. W. 2 Km. Rambhawati were also there, appellant Param Hans armed with an axe along with two other unknown persons armed with country-made pistols reached there and attacked the deceased Rajdhari. In the melee when Smt. Israwati, Ram Naresh and Smt. Mewati who had intervened also received injuries, the appellant along with his companion there after made good his escape. Rajdhari and his daughter Smt. Israwati both died on the spot in the house One Ram Naresh Dubey on hearing gun shots had informed at Police Station Barhalganj at 9-10 p. m. about the hearing of the gun shots in the village, on the basis of which an entry was made in the G. D. and the Investigating Officer left for the village. Thereafter written report (Ex. Ka-1) of the occurrence dictated on behalf of Smt. Mewati was tendered at the police station at 10-15 p. m., on the basis of which case was registered and papers for investigation were sent to the S. O., S. P. Dharni, who had already left earlier on receipt of information at 9.10 p.m The Investigating officer prepared inquest report of the deceased Rajdhari and Smt. Israwati and sent the dead-bodies for postmortem and also sent the injured Smt. Mewati, Ram Naresh and Km. Rambhawati for their medical examination. P. W. 4 Dr. P. S. Agrawal had examined their injuries on 15-8-77 and noted as follows : Injuries of Ram Naresh, vide injury report Ex Ka-4 : 1. Multiple gun shot injury on the left arm in the area of 6 cm above the elbow joint and 2 cm below the elbow joint about 15 in number, rounded in shape with blackening of margins. 2. Multiple shot injury on the left lateral side of abdomen at the level of T12, LI, L2, L4 vertebrae in the area of 8 cm. 6 cm. round in shape. No blackening seen. 3. Abrasion on the right leg anteriorily about 6 cm x 3 cm x skin deep 10 cm below the knee joint. Injuries of Smt. Mewati, vide injury report Ex. Ka-5 : 1. Lacerated wound on the left breast on the lower part about 1 cm x 5 cm x 5 cm. 2. Multiple gun shot injuries on the right fore-arm in an area of 4 cm x 4 cm with rounded margins. 3. incised wound on the scalp on left side 10 cm above and 5 cm lateral to left eye-brow about 5 cm x 1 cm x bone deep. 4. Abrasion on the forehead right side 3 cm above the right eyebrow about 2 cm x 5 cm x skin deep. Injuries of Km. Rambhawati, vide injury report Ex. Ka-6 : 1. Complained of pain in the right side of face. No visible injury seen. 2. Contused swelling on the right side of neck about 10 cm x 5 cm. in the opinion of Dr. Agrawal all the injuries could be caused on 14-8-1977 at about 7 p. m. 3. P. W. 3 Dr. I. P. Singh had done the autopsy on the dead-body of Rajdhari and Smt. Israwati on 16-8-77 on 4 p. m. and noted as follows . Post-mortem report of Rajdhari : Deceased was about 65 years of age, rigor months have passed off from the extremities. Foul smell was coming out. Ante-mortem Injuries 1. Lacerated wound 4 cm x 2 cm x cavity deep on the right head 8 cm above the right ear with brain matter coming out. 2. Incised wound 6 cm x .4 cm x muscle deep on the top of left shoulder joint. 3. Incised wound 4 cm x 1 cm x bone deep on the forehead just above the right eye brow. 4. One gun shot wound 1 cm x 1 cm x muscle deep on the chest 12 cm above the right nipple cock wadding coming out from it. 5. Five gun shot wounds in an area of 61/2 cm x 3 cm of dimension 1 cm x 1 cm x muscle deep on the chest just above the injury No. 4. 6. Four gun shot wounds 1 cm x 1/2 cm x muscle deep on the back of right shoulder joint with cock wadding coming from one of the wounds. 7. Incised wound 3 cm x 2 cm x muscle deep on the outer aspect of left arm middle. 8. Incised wound 4 cm x 3 cm x muscle deep on the left arm 5 cm below and outer to injury No. 7. 9. Incised wound 3 cm x 11/2 cm x muscle deep on the back of left thumb and index finger. 10. Incised wound 21/2 cm x 1/2 cm x cartridge deep on the pinny of the left ear. 11. Three incised wounds 6 cm x 11/2 cm x bone deep 3 cm x 1/2cm x bone deep and 1 cm x 1/2cm x bone deep on the head 8 cm above the left ear. On internal examination there were fracture of frontal and right parietal bone under injury No. 1. Brain was fractured and lacerated. Right lung was lacerated. Eight ounces digested food material was present in the stomach. Postmortem report of Smt. Israwati (Ex. Ka-3) The deceased was about 25 years of age. Tongue was protruding. Rigor mortis passed off. Decomposition started skin had started pealing off. Blisters were present. Ante-mortem Injuries : 1. Gun shot wound 1/2 cm x 1/2 cm x cavity deep on the chest 3 cm inner to left breast. 2. 5 gun shot wounds 1/2cm x 1/2cm x cavity deep on the left lower axilla 8 cm outer to left breast. On internal examination sternum was fractured. Lower part of left lung was lacerated. Pericardium and heart were punctured.
(3.) In the opinion of Dr. Singh injuries of both would have been caused at about 7 p. m. on 14-8-77 and on account of injuries on their person which were sufficient in the ordinary course of nature to cause their death.;