Anil Kumar Sharma, J. - (1.) IN both the appeals, the appellants have challenged the judgment and order dated 3.11.2006 in S.T. No. 886 of 2002, State v. Shivpujan Singh and two others, whereby they have been convicted under Section 302 read with Section 34, I.P.C. and each of them has been sentenced to imprisonment for life and fine of Rs. 3,000, with default imprisonment for two years. However, both the accused have been acquitted under Section 506. I.P.C. Ravindra Yadav was also charged under Section 3/25 of Arms Act but found not guilty on this charge. The facts in brief as stated in the written report of Markandey Singh on 19.7.2002 and as narrated in the Court by the prosecution is that there was old criminal litigation and dispute over rasta between the complainant and co -accused Shiv Poojan Singh, and on this score he and his family bore enmity with the family of the complainant. It was alleged that in the night of 18/19.7.2002, the complainant's son Anil Singh, aged about 28 years after taking meals was sleeping at the door of the house. Nearby Tej Bahadur Singh son of Tapeshwar Singh, Sanjai Singh son of complainant and others were also sleeping on different cots. At about 1.00 a.m. in the night due to barking of dogs and whispers of human movement they woke up and found that Shiv Poojan Singh alongwith his son Subhash Singh and Ravindra Yadav son of late Ram Awadh, r/o Village -Baidauli, P.S. Barhalganj, District -Gorakhpur, suddenly came at the door of the complainant's house. Shiv Poojan Singh pointed out towards Anil Singh saying that he should not be left today as he is the enemy and on his exhortation Ravindra Yadav in order to kill, fired shot from his country made pistol and sustaining injury on the temporal region. Anil Singh died on the spot. Hearing the sound of fire, neighbours Ramesh Yadav, Pappu Yadav and others carrying torches rushed over towards scene of occurrence and then making fire from his country made pistol Subhash Singh threatened them to kill. Thereafter, the accused persons made their escape -good towards western side. The report of this incident was submitted by the complainant at police station -Barhalganj, District -Gorakhpur on 19.7.2002 at 6.30 a.m., which was registered at Crime No. 212 of 2002 under Section 302, I.P.C., investigation whereof was entrusted to S.I. Chandra Dev Chaudhary. He rushed at the spot and conducted inquest upon the dead body of the deceased same day at 8.30 a.m. and alongwith usual papers sent the same in sealed condition for post -mortem. Dr. Brijesh Kumar on 19.7.2002 at 4.20 p.m. conducted autopsy. He found that 28 years deceased was an average built. He found following ante -mortem injuries on his person. 1. Gun shot wound of entry 4 cm. x 3 cm. x brain deep on left side ear, margin inverted blackening and charring present around the wound, underlying temporal bone fractured, wound is directed left to right upward. Brain membranes lacerated. There is two pieces of log wedding and 35 metallic pellets were recovered. Singing of scalp hair present. In the opinion of the doctor, the deceased suffered death about one day before due to coma as a result of ante -mortem injury.
(2.) THE Investigating Officer recovered simple and blood stained earth from the spot as also a blood stained cover of mattress and a kathari on which the deceased was sleeping and prepared memo. He interrogated the witnesses and prepared site -plan. The same day the Investigating Officer searched for accused Ravindra Yadav from his house, but he was not available. However, a D.B.B.L. gun 12 bore alongwith 5 live cartridges 12 bore and gun licence of Radhey Shyam were seized. On 20.7.2002, on information of the informer accused Ravindra Yadav was arrested by the Investigating Officer at 12.15 a.m. and he got a country made pistol 12 bore recovered near a pond of village -Baidauli at 1.30 a.m. in presence of the public witnesses Deena Nath and Jagdish Tiwari. A recovery memo was prepared and its copy was furnished to the accused. On 21.7.2002, the Investigating Officer interrogated witnesses Sanjay Singh, Tej Bahadur. S.I. Bhaiya Lal Yadav, and Head Constable Veer Bahadur Yadav. He also visited the spot of recovery of firearm at the instance of the accused Ravindra Yadav and prepared site -plan. Later on investigation of the case was conducted by S.I. R.P. Tiwari, who obtained sanction from the District Magistrate for prosecution of accused, Ravindra Yadav under Section 3/25, Arms Act and sent the case property for examination to Forensic Science Laboratory. Lucknow, and after completing the investigation submitted charge -sheet against the accused persons. After committal of the case to the Court of Session, charge for offences punishable under Sections 323/34 and 506, I.P.C. were framed against the accused persons. A charge under Section 3/25. Arms Act was also framed against accused, Ravindra Yadav. All three accused persons pleaded not guilty and claimed trial.
(3.) IN order to prove its case, the prosecution has examined complainant Markandey Singh, P.W. 1, Sanjay Singh, P.W. 2, Pappu Lal Yadav, P.W. 3, constable Ram Dulare Rai, P.W. 4, Dr. Brijesh Kumar, P.W. 5, Deena Nath, P.W. 6. S.I. Rajendra Prasad Tiwari, P.W. 7 and S.I. Chandra Dev Chaudhary. P.W. 8.;