- (1.) K. N. Ojha, J. This appeal has been preferred against the order of conviction and sentence dated 26-11-1999 passed by learned VIth Additional Sessions Judge Azamgarh in Session Trial No. 57 of 1993 by which appellant Jagarnath has been convicted under Section 302 read with Section 34 IPC, Section 307 read with Section 34 IPC and Section 452 IPC and has been sentenced to life imprisonment and also a fine of Rs. 10,000 under Section 302 IPC read with Section 34 IPC and in case of non deposit of fine to further undergo rigorous imprisonment of 3 years. He has been sentenced to undergo life imprisonment under Section 307 IPC read with Section 34 IPC and also fine of Rs. 5,000 and in case of non deposit of fine to further undergo rigorous imprisonment of 2 years. Under Section 452 IPC he has been sentenced to rigorous imprisonment of 5 years alongwith a fine of Rs. 2,000 and in case of non deposit of fine to further undergo rigorous imprisonment of one year.
(2.) LEARNED Counsel Sri Ram Babu Sharma, amicus curiae for the appellant and Sri A. K. Varma, learned Additional Government Advocate have advanced arguments and we have gone through the record. According to prosecution, murder of Ramjanam Chauhan, his wife Smt. Kanti Devi and his son Raju aged about 6 or 7 years, resident of village Dilshadpur, P. S. Jeanpur, District Azamgarh was committed by appellant and his two brothers Baijnath and Shanker, who are cousins of Ramjanam Chauhan, in the night of 6/7-8-1992 at about 3 a. m. FIR of which was lodged by Ramjanam Chauhan under Sections 302, 307 and 324 IPC at Police Station Jeanpur which is at the distance of 9 Km. from the place of occurrence. The FIR was lodged by Ramjanam Chauhan because by that time he was alive while his wife and son died on the spot. In FIR it was written that Ramjanam Chauhan, his wife Smt. Kanti Devi and his son Raju were sleeping in their house after taking night meal. His two sons, Raju aged about 6 or 7 years and Suresh aged about one year were sleeping with their mother Smt. Kanti Devi in the fateful night. He was the only son of his father. Therefore, appellant and his two brothers, (his cousins) wanted to usurp his property and with this motive Baijnath armed with country made pistol, Shanker with gadansa and Jagarnath with Hansua came inside his house, light of glowing lantern was there inside their house. The assailants started to cause injuries to them. On the alarm of his wife and children, Ramjanam Chauhan ran outside the house. Then witnesses Rajaee Pradhan, Chandrika, Jagaee and others reached the spot with lathis and torches. Ramjanam fell down near the house of Jagaee. He was told that his wife was killed. One of his son had concealed himself at some place and he escaped unhurt. But later Ramjanam Chauhan and his son Raju who had sustained serious injuries also died. Injuries of Ramjanam Chauhan were examined by Senior Medical Officer, District Hospital, Azamgarh on 7-8-1992 at 10 a. m. and following injuries were found on his body : (1) Incised wound 2. 5 cm. x 0. 5 cm. x cavity deep. Right side Ant. aspect of neck 4. 5 cm. above from medial end of right clavicle, margin clean cuts. (2) Incised wound 1 cm. x 0. 5 cm. x muscle deep Ant. aspect of right side neck 2. 5 cm. above from right clavicle, margin irreg. bleeding present. (3) Incised wound 4. 2 cm. x 0. 5 cm. x muscle deep 2 cm. lateral to Injury No. 2 bleeding present. (4) Incised wound 1 cm. x 0. 5 cm. x muscle deep over right shoulder 2 cm. above and lateral to Injury No. 4. (5) Fire-arm wound of entry (multiple) in area of 17 cm. x 7 cm. on right side face and nose size 0. 2 cm. small and 0. 3 cm big. No blackening. (6) Incised wound 3 cm. x 1. 5 cm. post aspect of right shoulder joint and small multiple wound all around the wound. 7 cm. x. 7 cm. in area. No blackening. (7) Incised wound 2. 5 cm. x 2 cm. x muscle deep on left middle finger on distal phalanx. His son Raju aged about 6 or 7 years was also medically examined by the same doctor on 7-8-1992 at 10. 50 a. m. and following injuries were found on his body : (1) Incised wound 7 cm. x 5 cm. x muscle deep left side head 7 cm. above from left ear. Margin clean cut. (2) Incised wound 8 cm. x 1 cm. x muscle deep post aspect of left shoulder. Margins clean cut. Bleeding present. (3) Incised wound 5. 5 cm. x 2 cm. x bone deep left scapular region 3 cm. below from Injury No. 2. Margin clean cut. Bleeding present. (4) Incised wound 5. 5 cm. x 1. 5 cm. x bone deep left side back 5. 5 cm. below from left shoulder joint. Margin clean cut. Bleeding present.
(3.) BUT since the condition of Ramjanam Chauhan was serious, his dying declaration was recorded in District Hospital Azamgarh in surgical ward on Bed No. 10 on 7-8-1992 at 10 p. m. The statement was recorded by Bahadur Prasad, Nyaik Magistrate/tehsildar and certificate that Ramjanam Chauhan was sound enough to make statement was given by Dr. R. K. Chitranshi, who was then posted in District Hospital Azamgarh. Later on Ramjanam Chauhan died. Post-mortem of his dead body was done on 12-8-1992 at 4 p. m. in mortuary of District Hospital Azamgarh. Rigor mortis was present and following ante-mortem injuries were found on his body: (1) Septic wound 3 cm. x 1 cm. x margins. Pus present on right side of neck. (2) Healed wound 1 cm. x 0. 5 cm. on left side of neck. (3) Healed wound 4 cm. x 1 cm. , 2 cm. latter to Injury No. 2. (4) Healed wound 1 cm. x 0. 5 cm. on right shoulder joint. (5) Injury on right side of chest. (6) Septic wound 4 cm. x 2 cm. on right scapula.;