ANIL KUMAR SHARMA - (1.) CHALLENGE in this appeal is to the judgment and order dated 01.08.2009 passed by the then learned Sessions Judge, Kaushambi in S.T. Nos. 190 of 2005 and 189 of 2005 whereby the appellants have been convicted and sentenced as under : - Sl. Name of Accused Under Imprison- Fine Default No. Section ment R.I. 1 Both accused- 449 IPC 10 Yearrs' RI Rs.2,500/- 1 Year appellants 450 IPC 7 Years' RI Rs.2,000/- 1 Year 307/34 IPC 10 Years' RI Rs.2,500/- 1 Year 302/34 IPC Life Imprisonment Rs.7,000/- 3 Years 2 Accused Gulshad 25 Arms Act 3 Years' RI 500/- 6 Months All the sentences were to run concurrently.
(2.) THE facts germane to the appeal are that on 19.06.2005 at 9.30 a. m. complainant Anwar Mahmood son of Sri Mahood Hasan, resident of village Baripur, P. S. Kokhraj, Distt. Kaushambi submitted a written report in Police Station Kokhraj stating that Irshad had taken loan in the name of Ilyas, younger brother of Mohd. Ayub and since then there was tension between both the parties. On 19.06.2005 at 9.00 a.m. Irshad from his D.B.B.L. licence gun and accused Gulshad from country made pistol fired shots on Mohd. Ayub, and when his daughter Smt. Baby @ Tabassum ran to save him, fire was also shot on her. The incident took place inside the house of Mohd Ayub in which both the injured suffered serious injuries. The complainant along with both the injured went to police station Kokhraj and submitted his written report, on the basis whereof Case Crime No. 174 of 2005 was registered against both the appellants under Sections 452, 307, 504 and 506 I.P.C. Investigation of the case was entrusted to S.I. Paras Nath Yadav. He recorded the statements of the complainant and both the injured, who were sent for medical examination. Dr. B.N. Srivastava medically examined Smt. Baby @ Tabassum on 19.06.2005 at 11.30 a.m. in Swaroop Rani Hospital, Allahabad and he found following injuries on her person:- (i) Fire arm wound of entrance size 3 cm x 3 cm internal side of right thy 10 cm about right knee, margins inverted, blackening in the wound and color of abrasion present. (ii) Fire arm wound of exit of size 4 cm x 4.00 cm on the outer part of thigh, 15 cm below right GI margins inverted fresh blood present. Duration of injures was fresh and were caused by fire arm. The general condition of the patient was low and she was admitted in the hospital. X-ray of right thigh was advised. Injured Mohd. Ayub was also admitted in the Swaroop Rani Hospital, Allahabad on 19.06.2005 where he scummbed to the injuries at 11.45 a.m. The inquest on his dead body was performed on 19.06.2005 at 1.40 p. m. and it was sent in sealed cover for post mortem examination along with usual papers. Dr. Sanjiv Yadav conducted autopsy on the cadaver of the deceased on the same date at 4.30 p. m. He found that the 50-years old deceased was having good built body male of average muscularity. Rigor-mortis was present on neck and upper limb. He found the following ante-mortem injuries on his person:- (i) Entrance wound 3 x 3 c.m. x Muscle deep on left side of hip near ischium. Margin inverted. Blackening and tattooing present. Hair were partly burnt. The injury was upward and interiorly towards left region. (ii) Exit wound 7 x 4 c. m. x organ deep in left inguinal region. Margin inverted. Under neath vessels lacerated. Blood clot present. (iii) Entrance wound 2 x 2 c. m. x muscle deep on right side of back of hip. Direction medially margins blackening present inverted. (iv) Exit wound 8 x 6 c. m. on back of right side of scrotum just below to scrotum near anal canal and scrotum. Margin inverted. Blood clot present in the wound. Vessels lacerated. (v) Hospital bandage drip mark (I.V.). (vi) Mark of injection on the right elbow, fore arm. In the internal examination doctor found that both the chamber of the heart, stomach and small intestines were empty. The doctor obtained that the deceased suffered both due to shock and hemorrhage as a result of ante-mortem fire-arm injuries from a close distance.
(3.) THE Investigating Officer reached on the spot and recorded the statement of the witnesses and seized five empty cartridges 12 bore and one empty cartridge 315 bore in presence of witnesses and prepared memo Ex. K-8 on the spot. He also took the samples of plain and blood stained earth of the floor through memo Ex. Ka-9. On 24.06.2005 both accused-appellants were arrested by the police and on their interrogation they confessed their guilt and offered to get the weapons of the crime recovered. They took the police about 200 meters away from abadi of the village in northern side and inside the dense chari crop field of the Purshottam Maurya, accused Irshad took out his DBBL gun and two cartridges 12 bore, while accused Gulshad handed over a country made pistol 315 bore and two live cartridges 315 bore at;