ANIL KUMAR SHARMA - (1.) IN all the aforesaid appeals, the appellants have challenged the judgment and order dated 06.10.2004 passed by Additional Sessions Judge, Court No.1, Gorakhpur in S.T. No. 297/2002, under sections 302/34 IPC (Crime No. 194/2002, P.S. Cantt. District Gorakhpur), whereby the appellants have been convicted for the offence punishable under section 302 read with section 34 IPC and each had been sentenced to undergo imprisonment for life and fine of Rs. 5,000.00 with default stipulation.
(2.) BRIEFLY stated the facts of the case are that deceased Dharmendra Singh s/o Prahlad Singh r/o Village Khanimpur P.S. Sahajanwa District Gorakhpur and all the accused-appellants were jointly working as contractors in construction and operation of Sulabh Shauchalaya in Gorakhpur. On 30.03.2002 at 2.30 P.M. accused Bhola Singh resident of village Khanimpur, P.S. Sahjanwa, District Gorakhpur along with Sangram Pal, resident of Aam Kol Belwa Babu, P.S. Chauri Chaura, District Gorakhpur came on Yamaha motorcycle of accused Guddu @ Gyam Prakash, resident of Indira Nagar, Gorakhpur at the residence of Dharmendra Singh and told him that he had been called by Gyan Prakash @ Guddu for accounting to Gorakhpur. Dharmendra Singh on his new Bullet motorcycle accompanied them to Gorakhpur but when he did not return till evening his elder brother Amar Singh (complainant) was worried and along with his relative Jitendra Singh, he left for Gorakhpur in search of his younger brother Dharmendra Singh. On reaching Sulabh Shauchalaya of Sadar Hospital they came to know that all of them have left short while ago for the house of Guddu @ Gyan Prakash. The complainant while going to the house of Guddu @ Gyan Prakash in Mohalla Indira Nagar at about 7.30 P.M. saw his brother Dharmendra Singh near Goplapur village coming on Bullet motorcycle from Indira Nagar side and Guddu @ Gyan Prakash, Bhola Singh and Sangram Pal riding on Yamaha motorcycle. Bhola Singh fired shot by his country made pistol on Dharmendra Singh from behind after stopping his Bullet motorcycle. Leaving the Bullet motorcycle Dharmendra Singh ran but fell down at some distance. Thereafter Sangram Pal fired shot from his country made pistol on his neck from close range. The complainant and his relative Jitendra Singh challenged them and on commotion all the three accused waving country made pistol in the air made their escape good on Yamaha motorcycle. The complainant chased them for some distance but returned back at the spot and found his brother Dhnarmendra Singh dead. Leaving the dead body and Bullet motorcycle at the spot complainant Amar Singh penned down the written report and submitted the same in P.S. Cantt. at 8.40 P.M. on 30.03.2002. On the basis of this report case crime no. 194/2002 was registered, investigation whereof was entrusted to S.I. Pawan Kumar Chaubey. After interrogating the complainant he reached at the spot at about 9.20 P.M. but on account of night the inquest proceedings were postponed. In the morning of 31.03.2002 the investigating officer reached at the spot, took samples of plain and blood stained earth and also the leather Chappal of the deceased and new Bullet motorcycle bearing chassis no. 2B-601883B and engine no. 2B-601883B through recovery memo. Blood stains were found on the seat and silencer of the motorcycle. The inquest on the cadaver of the deceased was performed and along with usual papers it was sent for post mortem examination in sealed cover. Dr. R. N. Shahi conducted autopsy on 31.03.2002 at 3.00 P.M. and he found that 25-years old deceased was having average built body, his eyes and mouth were closed, rigor mortis was present on all limbs. He found the following ante mortem injuries on his person: 1. Fire arm wound of entry 3.0 cm x 3.0 cm x bone deep on the upper part right side neck. 3.0 cm below the right mandible. Margin black and inverted on cervical vertebra C-3 (3rd), one long metallic bullet is recovered from vertebra. 2. Fire arm wound of entry 3.0 cm x 3.0 cm x through x through on left side chest. 5 cm above the left nipple at 3 O' clock position. Margins inverted and black. 3. Fire arm wound of exit size 3.5 cm x 3.5 cm x through x through related to injury no.2 on the left side back of the chest 6 cm below inferior angle of scapula margins averted. On opening the wound, left lung and heart are punctured through x through about 1.5 litre blood present in chest cavity. The third rib on left side fractured. 4. Abrasion 3 cm x 3 cm x 1 cm on the left leg of lower part 8 cm below the knee joint. 5. Abrasion 2 cm x 1 cm on front of right patella. On internal examination the doctor found pleura, left lung, pericardium and heart punctured while buccal cavity was lacerated. In the opinion of the doctor the deceased suffered death about a day before due to hemorrhage and shock as a result of ante mortem injuries.
(3.) ERE that the Investigating Officer prepared site-plan and had taken out golden chain, spectacles, chain of Rudhraksh and Sphetic and four golden rings from the corpse of the deceased and were given in the supurdagi of his brother Amar Singh through memo Ex. Ka-4. Thereafter he interrogated the witnesses. On 31.3.2002 accused Gyan Prakash @ Guddu was arrested. On;