ANIL KUMAR SHARMA,J. - (1.) CHALLENGE in this appeal is to the judgment and order dated 21.10.2003 passed by the Sessions Judge, Kannauj in S.T. No. 151 of 2001 with S.T. No. 153 of 2001, Vimal Kishore Dubey @ Chhotey whereby the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs.3,000/- with default stipulation. However, the appellant has been acquitted under Section 25 Arms Act in S.T. No. 151 of 2001.
(2.) THE prosecution story in nutshell is that 17.3.2000 at about 11.15 A.M. Prabhu Dayal son of Sri Aangne Lal resident of village Nagla Gagin, P.S. Chhibramau, District Kannuaj submitted a written report in P.S. Chhibramau wherein he stated that on 16.3.2000 Rakesh son of Sri Ram Swaroop resident of Kathahar in the noon came in the village along with Vimal Kishore Dubey @ Chhotey son of Bharat Dubey resident of Kasawa and pointed out towards the house of Pradhan and his elder brother and thereafter they went towards Kasawa. About 15 days before a fair was held in Kasawa, arrangement whereof was with the Pradhan and presently Smt. Krishna Devi, daughter-in-law of Rati Ram is the Pradhan. In the fair Vimal Kishore Dubey @ Chhotey under intoxication was illegally extorting money from the shop keepers, which was objected by Rati Ram, the elder brother of the complainant whereupon Vimal Kishore Dubey @ Chhotey bore enmity with them. The report further stated that on 17.3.2000 the complainant along with his elder brother Rati Ram and Raghu Nandan Shakya son of Mishri Lal Shakya resident of village Bharapur had come to Chhibramau market and were returning back in private bus no. UGR 159. When the aforesaid bus reached at Atirajpur turn Vimal Kishore Dubey @ Chhotey, who was sitting in the bus in order to kill took out 'Tamncha' and fired shot in the stomach of his elder brother Rati Ram at 10.30 A.M. and the accused made his escape good. Since the condition of the injured was precarious so he took him to Government hospital, Chhibramau in the same bus where he is undergoing treatment. On the basis of this report case crime no. 83 of 2000, under Sections 307 IPC was registered at P.S. Chhibramau, investigation whereof was taken up by Inspector Ram Prakash Singh. When injured Rati Ram reached hospital, Dr. K.N. Gupta sent a memo (Ex.Ka-10) to S.O. P.S. Chhibramau for information and necessary action stating that patient Rati Ram son of Sri Angne Lal, aged about 55 years resident of village Gagin Nagla Kasawa, P.S. Chhibramau, District Kannuaj having sustained fire-arm injury has been brought by Ashok Kumar Dubey son of Sri Ram Bharose Lal Dubey resident of Mohalla Dikshitan, P.S. Chhibramau, District Kannuaj. The same day Sri P. K. Agarwal, SDM, Chhibramau recorded dying declaration of the injured at 11.30 A.M. and before recording his statement he obtained certificate from Dr. K.N. Gupta who certified that injured is conscious and is in a position to give statement. After recording dying declaration the Doctor further certified that the injured remained conscious during statement and the statement was taken in his presence. This certificate was given at 11.35 A.M. Dr. K.N. Gupta sent another memo (Ex.Ka-11) to S.O. Chhibramau stating that Rati Ram who was admitted in injured condition having sustained fire-arm injury in the hospital at 11.00 A.M. had expired during treatment in the hospital at 11.50 A.M. On the basis of this memo the case was converted into section 302 IPC vide G.D. report no. 19 dated 17.3.2000 at 12.30 P.M. The Investigating Officer after getting information regarding registration of the case through R.T. Set reached the Government Hospital Chhibramau and interrogated the complainant. Thereafter, he took him to the place of the incident and prepared site plan. The inquest on the dead body of the deceased was conducted by S.I. Ram Singh Rathore under instructions of the S.O. at 1.00 P.M. on 17.3.2000 and thereafter the dead body of the deceased was sent for post mortem examination in a sealed cover along with usual papers. The autopsy on the dead body was conducted by Dr. B.G. Tiwari on 18.2.2000 at 11.15 A.M. He found that 55-years old deceased was of average built body. His eyes were closed and mouth was slightly distended. Dry clotted blood over abdomen was found. Both iliac Fossa were in green discoloration. Rigor mortis passed from upper limb while it was present on lower limb. He found following ante-mortem injuries on his person. "3.5 x 3 cm. x abdominal cavity deep right side abdomen near umbilicus, margin inverted, lacerated echimosed. Blackening and Tattooing present in an area 6 x 4 cm. Omen tum was coming out." On internal examination it was found that the heart of the deceased was empty, peritoneum and left kidney were lacerated and the cavity was full of blood. The stomach contained pasty food matter 100 grams. Gases and fecal matters were found in small and large intestines. Gall bladder was half full. The Doctor found 14 small pellets, one wading and one tikli from the body of the deceased. In the opinion of the Doctor, the deceased suffered death due to shock and haemorrhage as a result of ante-mortem injuries. On 18.3.2000 the investigating officer interrogated the driver and conductor of the bus wherein the incident took place. The accused surrendered in the Court on 6.4.2000 and the same day he was interrogated in the lock-up, who allegedly confessing his guilt assured to get the weapon of offence recovered. Thereafter he filed an application for police custody remand of accused on 16.4.2000 and such remand was granted by the Court from 8.00 a.m. of 18.4.2000 till
(3.) 00 p.m. on 19.4.2000. On 18.4.2000 the accused in custody was lodged in lock-up of the police station at 1.45 p.m. He was again interrogated at 2.15 p.m. He confessed his guilt about having committed murder of Rati Ram and stated that he had hidden the country-made pistol near half-dry tube well of Gram Panchyat situated in east of Ramlila ground. The accused then took the investigating officer to Ramlila ground of Kasava. The investigating officer procured public witnesses Jagdish and Sia Ram and in their presence got the country made pistol recovered embedded in the earth at about 5.00 p.m. The barrel of the country made pistol contained an empty cartridge. The recovery memo was prepared at the spot and its copy was furnished to the accused. On the basis of recovery memo case crime no. 115/2000 u/s 25/27 Arms Act was registered against the accused. The investigation of this case conducted by SI S. N. Gautam PW-7. The investigation in both the cases ended in charge-sheets against the accused. The articles recovered at the instance of accused and his wearing apparels were sent for examination to Forensic Science Laboratory and its report are Ex. Ka-24 and Ka-25. 4. After committal of the case to the Court of Sessions separate charges u/s 302 IPC and 25 Arms Act were framed against the accused, who abjured his guilt and claimed trial. Both the cases were tried together by the trial Court.;