- (1.) ONKARESHWAR Bhatt, J. Three accused appellants were tried and convicted under Sections 302/34, I. P. C. and sentenced to imprisonment for life. The judgment with order was passed in Sessions Trial No. 96 of 1981 by the then V Additional Sessions Judge, Fatehpur on 28-9-1981.
(2.) SRI P. N. Misra learned Senior Advocate for the appellant and SRI S. K. Pal learned A. G. A. for the State have been heard and the record of the case has been carefully perused. During pendency of the appeal appellant Ram Kishore died and by order dated 30-10-2003 the appeal was ordered to abate so far he was concerned. The appeal survives on behalf of Ashok Kumar and Audhesh Kumar alias Dhunnu. According to the prosecution case deceased Sumer Singh was residing in village Paina Kalan, Police Station Ghazipur, District Fatehpur. The three appellants also resided in the same village. Appellant Ram Kishore (since dead) was highly inimical with one Rajendra Yadav of the village. Deceased Sumer Singh was associated with Rajendra Singh, hence Ram Kishore bore enmity with the deceased. On several occasions, appellant Ram Kishore had challenged the deceased for committing his murder. Appellant Ashok is the son of deceased Ram Kishore. On 9-11-1980 sometimes after the sunset the deceased was talking to Suraj Prasad Teli of his village. In the meantime appellant Ashok who was near the Panchayat house called the deceased by gesture. The deceased reached near the appellant Ashok and both of them proceeded towards Kanal Patri and covered a distance of more than one furlong. Both of them reached the mango grove. Appellant Ram Kishore armed with licensed gun and appellant Dhunnu alias Audhesh who was also having a gun came out from the mango grove. Appellant Ashok had a country made pistol. All the three appellants fired at the deceased thrice or four times. On sustaining injuries the deceased cried and fell down in the field of Desh Raj Singh and died. Informant Puttan Singh, who is uncle of the deceased and Smt. Phool Dulari mother of the deceased who were near the place of occurrence and had gone to ease themselves came to the place of occurrence. Puttan Singh came to his house and got a written report scribed through Mewa Lal. The report was lodged at police station Gazipur on 9-11-1980 at 6. 30 p. m. The case was investigated by S. I. Jai Karan Singh, P. W. 11 who reached at the place of occurrence on 9-11-1980 itself. However, in the absence of proper light formalities of investigation were taken by him on 10-11-1980 i. e. on the following day of the occurrence. At the place of occurrence the Investigating Officer recovered three empty cartridges and prepared its memo. On 10-11-1980 he arrested appellant Ram Kishore alongwith his gun and six cartridges and prepared a memo in that regard. He also prepared inquest report of the dead body of the deceased and sent the same for post- mortem examination. The post-mortem was done by Dr. S. K. Singh P. W. 9 on 11-11-1980 at 4 p. m. The doctor found following ante mortem injuries on the person of the deceased: (1) Lacerated wound right ear upper part Pinna 1/4" x 1". Through and through Pinna. (2) Lacerated wound at parietal area 1" x 1/2" x scalp deep 2" above right ear. (3) Lacerated wound occipital area 1-1/2" x 1/2" x scalp deep 2" behind injury No. 2 in midline. (4) Gun shot wound of entry on back in midline in interscapular area over thoracic vertebra. 2" x 2" x 3- 1/4". Blackening and tatooing present. Direction posterior to anterior communicating to injury No. 5. (5) Gun shot wound of exit 1 1/2" x 1" x 3-1/4" on left side of neck 1/2" above the left clavicle 3" medial to tip of left shoulder communicating to injury No. 4. (6) Gun shot wound of entry upper part of left shoulder on anterior surface 1" x 1" x bone and chest cavity deep 2" lateral to acromion process of scapula. Blackening and tatooing present underlying humerous bone fractured. Direction above downward obliquely medially from left to right. (7) Abraded contusion 1/2" x 1/4" on front of left side of chest at 1 O'clock position 5" above the left nipple. (8) Abrasion left side of abdomen 2" x 1", 1/2" above the left iliac crest in lumber area. (9) Abrasion over zygomatic process of left side of cheek 1-1/2" x 1/2". 39 small mettalic pellets and one wadding piece were recovered from the body and were sent in sealed cover to S. P. Fatehpur.
(3.) ACCORDING to doctor duration of death was about two days from the time of post-mortem examination. The prosecution examined Puttan Singh P. W. 1, Phool Dulari P. W. 2 and Chhatrapal alias Rajola P. W. 3, Ram Ashre P. W. 4, Ram Sajivan P. W. 5 and Virendra P. W. 6 as eye witnesses. However, all of them excepting Puttan Singh P. W. 1, did not support the prosecution case and turned hostile. P. W. 2 Phool Dulari, mother of the deceased has stated that she had gone to ease and when she was near the Mahuwa grove she heard three shots. She, however, could not see the assailants because it had become dark after the sunset. According to the prosecution case the deceased was talking with the one Suraj Prasad Teli when appellant Ashok had called him and with whom the deceased had proceeded towards canal patri. P. W. 2 Phool Dulari, mother of the deceased, however, does not corroborate this fact. She has stated that stomach of the deceased was upset and for easing he had gone towards canal side and she had also proceeded in that direction for easing.;