Giridhar Malaviya, J. - (1.) THIS appeal has been preferred by Shakir1 who has been convicted by Sessions Judge, Mirzapur in Sessions Trial No. 85 of 1978 under sections 302/301 Indian Penal Code and has been awarded imprisonment for life. As per the case of the prosecution disclosed in the First Information Report lodged by one Mishri Lal is that on 21-2-1978 he was sitting at his parchoon shop in village Bijaipur. At about 8 p.m. Shakir appellant went to his shop and asked for a bidi and match box. At that time Babboo Mali, Munni Lal and Panna Lal of his village as also his wife Patti Devi, daughters Km. Ranno and Km. Mallo along with his brother Nanku were present on their shop. Shortly thereafter Asgar went to his shop and wanted to purchase gram for his horse. Shakir accused asked Asgar to lend him Rs. 2/-. Asgar told Shakir that he had no money to give him. There was some altercation whereafter Shakir appellant took out a country made pistol from his right pocket and fired at Asgar with a view to kill him The shot fired by him hit his daughter Ranno aged about 9 years who fell down. He rushed and caught hold of Shakir, but Shakir gave him a push and fled away. Shortly thereafter Km. Ranno died on account of the gun shot injuries. All the persons present on the shop had seen the incident in the light of electric bulb in the shop. THIS report was written by Sheo Pujan Shukla on the dictation of Mishri Lal and lodged at the police station Vindhyachal at a distance of about 12 miles on the same day at 10 p.m,
(2.) THE report was entered in the general diary by Head Constable Kamla Yadav PW 5 in the presence of Investigating Officer Phool Chandra Rai PW 6. THE Investigating Officer immediately proceeded to the place of incident where he reached at about 11 p.m. He prepared an inquest on the body of Km. Ranno and sent the same for post mortem examination through constables Ram Manohar Tewari and Dhananjay which was conducted on 22-2-1978 at 1 P.M. by Dr. G. D. Barnwal who found the following ante mortem injuries on the person of the deceased : 1. Lacerated wound 15 cm x tissue deep on the back of left arm upper part of skin, margin inverted and blackened (wound of entrance) 2. Lacerated wound 2 x 1.5 cm on back of left arm upper and inner part (wound of exit). Both wounds has a direct track. 3.Lacerated wound 2 x 1.5 cm x skin deep on upper and outer side of left chest and exilla in front of injury no. 2. THE Investigating Officer thereafter recorded the statement of the complainant and other witnesses, searched the accused persons who were not traceable. THEn he took into possession the blood stained gunny bag on which the dead body of Km. Ranno was lying, prepared memo, got it signed by the witnesses and also prepared the site plan on 27-2-1978. He recorded the statement of one Panna Lal. THE accused surrendered and the Investigating Officer recorded his statement in jail on 28-2-1978 whereafter the charge sheet was submitted. After the appellant had been committed to the Court of Sessions he was tried by the learned Sessions Judge. At the trial the prosecution examined Mishri Lal, Km. Mallo PW 2, Asgar PW 3 and Munni Lal PW 4 as witnesses of fact. Although Asgar and Munni Lal did not support the prosecution case in full but they did corroborate the evidence of the other witnesses and had also accepted the part of the prosecution story. On an assessment of evidence- the learned Sessions Judge found the prosecution case against the appellant proved and consequently convicted him as has been mentioned above. We have heard Sri V. C. Katiyar learned counsel for the appellant and Sri S. P. Singh learned Govt. Advocate.
(3.) PW 1 Mishri Lal in his deposition categorically gave out the prosecution case and stated that the shop occupied by him is in the outer portion of his residence in which he resides. On the day of the incident at about 8 p.m. Shakir had come to his shop for purchasing bidi. Shortly thereafter Asgar alias Karia who drives an ekka also came to purchase gram. Shakir asked Asgar to lend him some money. Asgar said that he had no money and he was purchasing gram of the entire money which he had possessed. Thereafter there was an altercation amongst the two. Asgar threw away Rs. 2/- in the shop. His daughter Ranno was lifting the money when Shakir. fired from his weapon. He rushed to catch hold of Shakir but he fled away. His daughter died thereafter in a shortwhile. The incident, apart from him, was witnessed by Babboo, Mallu, Munni Lal and Nanku. When the incident took place an electric light was burning in his shop. The blood had fallen down at the place where her daughter had been shot. In the cross examination the witness said that he or his family had absolutely no enmity with Shakir. He also said apart from other facts that after the shot had been fired Nanku, Babboo, Munni Lal and Panna had once fled away but had returned after about 10 or 15 minutes. There is nothing material elicited in the cross examination of this witness which could discredit his testimony. Mallo PW 2 was aged about 12 years at the time of her examination in the court. After putting some question to this witness the learned Sessions Judge was satisfied that she was aware of the sanctity of oath. Consequently oath was administered to her. She said that about 13 or 14 months prior to her making statement she was sitting in her shop along with Ranno. Her father Mishri Lal was sitting at platform where Babboo, Nanku, Munni Lal and Panna Lal were also present. Shakir Came to the shop and asked his father for bidi and match box. At the same time Asgar who drives Ekka came there. Asgar wanted gram for Rs. 2/- to feed his horse. Shakir as ked Asgar to pay him Rs. 2/- Asgar said that he had no money to be given to Shakir. Shakir said whether he was ready to give him Rs. 2/- or not as otherwise he would kill him whereupon Shakir took out a pistol from his right pocket and fired it towards Asgar. The shot fired by Shakir hit her sister Ranno who was standing near Asgar. Ranno fell down and died after sometime. The blood had also come down at the place where she had fallen. An Electric light was burning in the shop. Shakir resided in her village whom she knew from before. In the cross-examination all that could be elicited from her was that her father had left the place of incident after about an hour or two and the Investigating Officer had reached the place of incident at about 11 p.m. Thus the evidence of this witness is otherwise fully reliable.;