G.MALAVIYA,J. - (1.) ACCUSED Lala Ram and Shoo Ratan were tried in Ses.sion Trial No. 447 of 1976 by VIII Addl. Sessions Judge, Kanpur. Whereas Shoo Ratan was acquitted of the charge u/s. 302/34, Indian Penal Code and in the alternative u/s. 302/109, Indian Penal Code, Lala Ram was convicted u/s. 302, Indian Penal Code and was awarded life imprisonment. Against the said conviction the present appeal has been filed by Lala Ram.
(2.) ACCORDING to the prosecution case there was enmity between accused Lala Ram and deceased Ram Sanehi and his family: It is alleged that on 30.1.1975 at about 9.30 a.m., when deceased Ram Sanehi was returning home from the village and arrived near the house of Devi Prasad in village Kaitna, on the exhortation of Shoo Ratan, Lala Ram rued at him with his SBBL gun which hit Ram Sanehi, who fell down. It is further alleged that one more shot was fired in the same direction. However on the alarm being raised by the witnesses, the accused persons who were at that time sitting and had fired from the plat form of Lala Ram fled away in the north east direction. When the witnesses went near Ram Sanehi they found him dead. Consequently a written First Information Report of the incident was lodged by brother of the deceased Ram Swaroop at Police Station at a distance of 11 miles at 12.25 noon on the same day naming the accused persons. The chik was prepared by P.W. 4 clerk constable Udai Bhan, Singh. Thereafter the investigation of the case was taken up by P.W. 5 Shiv Raj Singh Tyagi. The incident is alleged to have been witnessed by complainant Ram Swaroop brother of the deceased, Ishwari, uncle of the deceased as also by Pyare Lal and by one Sukhdoo. When the Investigating Officer went to the spot he found the body lying on the spot. After preparing the inquest the body was sent for the post mortem examination. The Investigating Officer also collected the blood stained - and plain earth from the spot. The Investigating Officer, before sealing the body had got the clothes on the person of the deceased comprising of a woolen jacket, a terry cot shirt, taken out from the body of the deceased which was smeared with blood. A recovery memo was prepared in the presence of the wiu1esses who signed it. The Investigating Officer searched the accused persons in their house but they were not traceable. He recorded the statement of the witness Ram Swaroop and prepared the site plan. As the accused persons were not traceable the Investigating Officer made, report under Section 82, Cr. P .C. for attachment etc. There after the said Investigating Officer Shiv Raj Singh Tyagi was transferred. The investigation was however completed by Station Officer Chhote Lal till submitting of the charge sheet in the case.
(3.) THE post mortem on the body of Ram Sanehi was conducted on 31.1.1975 by P.W. 6 Dr. S.S. Agrawal. He found one gun shot wound of entry 3 cm. X 2 cm X abdomenal cavity deep over right hypochondrium region 12 cm. below and medial to the right elbow with its edges inverted and bruised. He found another fire arm wound of exist 6 cm X 3.2 cm X abdomenal cavity deep on the right side of the back in the lower third part. He also found one abrasion of 0.5 cm. X 0.3 cm. in the abdomen about 4 cms, on the right side below injury No.1. In the internal examination the doctor found 8th and 9th ribs fractured. The small and large intestines were also found empty. According to the doctor the probable time of death was one and half day. In the opinion of the doctor the injury in the ordinary course was sufficient to cause death of the deceased.;