R.A.MISRA,J. - (1.) THE accused appellant Lal Chand Misra has been convicted under Section 302 of Indian Penal Code and sentenced to death for having intentionally caused the death of Smt. Ishraji aged 50 years (his sister -in -law being the wife of his real brother Lalta Prasad), Akhlesh aged 17 years his nephew (being the son of Lalta Prasad) and Km. Mithlesh alias Mithoo aged about 12 years (his niece being the daughter of Lalta Prasad) in the early hours of 5th of June 1980 at about 5 A.M. in village Rampur Naddi, P.S. Mariyahot, District Jaunpur. He has further been convicted under Section 307, I P .C. and sentenced to undergo S.I. for a period of three years for having made an attempt to commit the murder of Kailash Chandra (P.W. 4) and their son of his brother Lalta Prasad in the aforesaid occurrence.
(2.) THE prosecution story briefly stated is as follows: - The accused Lal Chandra Misra, and Lalta Prasad are real brothers (being the sons of Jokhan). Smt. Ishraji deceased was the wife of Lalta Prasad. Kailash Chandra (P.W. 4) and Akhlesh deceased are the sons of Lalta Prasad and Km. Mithlesh alias Mithoo is his daughter. Lal Chand accused has four sons Rajesh Chand, Rakesh Chandra, Rajendra Kumar and Bipin Kumar. Lalta Prasad is employed as Station Master in the Railway Department and was posted at Jukhoni Railway Station in Madhya Pradesh on the date of the occurrence. The accused Lal Chand is a well educated person and was employed as a permanent Lecturer in some institution of Diesel Locomotive Works at Varanasi. Jokhim, the father of Lal Chand and Lalta Prasad, executed first will on 16th March 1979 in favour of the sons and daughters of accused Lal Chand but subsequently after a Panchayat he executed another will Exh. Ka. 3 on 7.4.1979; but the execution of these wills created a wide gulf in the families of the two brothers and their relations became strained. A Kathal grove is owned and possessed by Jokhan. It is situated towards the north of village Abadi. The prosecution story shows that on 6th of June 80 at about 5 A.M. Lal Chand accused and Jokhan both went to the aforesaid grove for plucking Kathal fruits and all the three deceased followed them and asked them not to pluck the Kathal fruits. The accused Lal Chand left the place threatening that he would be just coming back. Kailash Chand (P.W. 4) was also there. He went away for spreading manure in the nearby plot. The accused Lal Chand returned along with his Gun Exh. 1 and Cartridge Bait Exh. 2 Kailash Chand (P.W. 4) was returning back from his plot after spreading manure there. Jokhan the father exhorted Lal Chand to kill, whereupon Lal Chand fired towards Akhlesh causing fatal injuries. He fell down. Smt. Ishraji his mother rushed for his help. Lal Chand fired the second round towards her and she died instantaneously on receiving the injury. Accused Lal Chand re -loaded his gun and fired the third towards Km. Mithlesh alias Mithoo. She also fell down on receiving the injury. The accused fired fourth round towards Kailash Chand (P. W. 4) but he escaped by lying down on the ground. Tapeshwar Nath Misra (P.W.3) and Srinath (P.W.8) witnessed the occurrence. Kailash Chand (P.W 4) raised alarm. Lal Chand and Jokhan ran away. They were chased and arrested by the villagers. Kailash Chand (P.W. 4) carried the injured Km. Mithlesh alias Mithoo and Akhlesh to the District Hospital leaving the dead body of Smt. Ishraji on the spot. Akhlesh Chand was declared dead in the Hospital. Km. Mithlesh alias Mithoo was admitted in the Hospital but she succumbed to the injuries there on the same day at 1 P.M. Kailash Chand (P.W.4) submitted the written report Exh. Ka. 4 at the Police Station at 9.55 A.M. on the same day. Dalsingar Tiwari (P.W.7) prepared the first information report Exh. Ka. 5 and registered the crime in General Diary vide Exh. Ka. 6. Sri Amar Nath Gupta (P.W. 9) the then Station Officer, Police Station Mariyahon was present at the Police Station when the first information report was lodged. He reached the scene of occurrence where the villagers handed over the accused in his custody alongwith the Gun Exh. 1 and the Cartridge Belt Exh. 2. The Belt contained 12 live cartridges Exhs. 3 to 15. Two empty cartridges Exhs. 16 and 17 were recovered from the barrel of the Gun. He recovered two empty cartridges Exhs. 18 and 19 from the spot and prepared the Site Plan Exh. Ka. 12. He found blood on the spot. The Investigating Officer sent the dead bodies for Postmortem examination after preparing the inquest reports and other connected papers. Dr. Jagdamba Prasad, Singh (P.W. 10) conducted autopsy on the dead bodies of Smt. Ishraji, Akhlesh Chandra Mishra and Km. Mithoo on 6.6.19110 at 10 A.M., 11 A.M. and 12 noon and found the following Antemortem injuries on the dead body as enumerated in the Postmortem Examination reports Ka. 14, 16 and 19: 1. Smt. Ishraji "Entry gun shot wound 5 cm. x 4 cm. x chest cavity deep front left side of chest situated 7 cm. below the medial end of left clavicle. Blackening present around the wound." Death was caused due to shock and internal Haemorrhage as a result or antemortem injury." 2. Sri Akhilesh Chandra 1. œEntry gun shot wound 6 cm. x 4 cm. x abdomen cavity deep right side of front of abdomen situated 15 cm. below right nipple. 2. Entry gun shot wound 2 cm. X 4 cm. abdomen cavity deep right side of front of abdomen situated 3 cm. above injury No.1. Blackening present around the wounds. 3. Exit gun shot wound 1 cm. x 4 cm. x abdomen cavity deep right side of back situated 16 cm. below lower angle of right scapula.
(3.) EXIT gun shot wound 2 cm. x 3 cm. x abdomen cavity deep right side of back situated 4 cms. below the injury No.3.;