IMTIYAZ MURTAZA, J. - (1.) ABOVE appeals have been filed against the judgment and order dated 6 -1 -2004 passed by Sessions Judge, Kanpur Nagar, in Sessions Trial No. 527 of 2002 whereby appellants Ashok Kumar Singh alias Gappu Bhadauriya, Arun Singh alias Raje Bhadauriya and Ajit Singh alias Guddu Bhadauriya have been convicted under Section 302 read with 34 I.P.C. and sentenced to death. In Sessions Trial No. 528 of 2002 Bauwa alias Rajesh Kumar Pandey has been convicted under Section 302/34 I.P.C. and sentenced to death. He is further convicted under Section 25/27 Arms Act but no separate sentence was awarded for the said charge.
(2.) CRIMINAL Reference No. 23 of 2004 is for confirmation of death sentence of these appellants. Brief facts of the case are that a report was lodged against the appellants by Manish Awasthi at police station Nazirabad as case crime No. 195 of 2001 alleging therein that he is a resident of A/179D Ram Bagh, police station Bazariya, Kanpur. His brother Chakresh Awasthi had purchased house No. 111/443 from Amul Hitkari and obtained a power of attorney also from him. He was also handed over possession of the said house by the landlord. It is further stated that Ashok Singh Bhadauriya alias Gappu wanted to have forcible possession of this house. It was opposed by his brother. On account of this Ashok Singh Bhadauriya became inimical with his brother. On account of this enmity at about 7 p.m. on 30 -10 -2001 when informant, his brother Chakresh Awasthi and his friend Ashu Nigam were sitting in the verandah on the first floor and were busy in some conversation with each other. At the said time informant, Amit Nigam, brother of Ashu Nigam and Rewant Mishra were standing in the verandah. There was electric light in the verandah. Ashok Singh alias Gappu Bhadauriya, his brother Arun Singh alias Raje Bhadauriya, Ajit Singh alias Guddan Bhadauriya and their servant Bauwa Pandey armed with Rifle, Gun, Country made pistol and Revolver came there and challenged Chakresh Awasthi saying that they will teach him a lesson for purchasing the house. They all started firing at Chakresh Awasthi. They had raised alarm attracting several persons from the neighborhood. Everybody was shocked and started running away due to indiscriminate firing. The shot fired by them caused serious injuries to Chakresh Awasthi and his friend Ashu Nigam. They fell down on the floor. They had also fired in the air to create terror in the vicinity. All the shops were closed and traffic on the road was disrupted completely. They had left the place presuming them dead. Ashok Singh was armed with a D.B.B.L. Gun, Arun Singh was armed with a Revolver, Ajit Singh was armed with a Rifle and Bauwa Pandey was armed with a country made pistol. After the assailants left the scenario they brought Chakresh Awasthi and Ashu Nigam to Regency Hospital. His brother Chakresh Awasthi was declared dead and Ashu Nigam was admitted in the Hospital for treatment. The report was lodged at the police station at 9.50 p.m. The distance of police station from the place of occurrence is one and half kms.
(3.) POST -mortem of deceased Chakresh Awasthi was conducted by Dr. S.B. Mishra on 31 -10 -2001 at 3.30 a.m. on the order by A.D.M. City, Kanpur Nagar and C.M.O. Kanpur Nagar. Following ante mortem injuries on the person of the deceased were found : (1) Fire -arm wound of entry 2 cm. x 2 cm. x abdominal cavity deep, present on the lateral side of the right lower abdomen, just above iliac crest, margins inverted, tattooing is present in an area of 11 cm. x 10 cm. all around the wound, margins are 2 scorched. (2) Fire -arm wound of exit 3 cm. x 2.5 cm. x abdominal cavity deep, present on the lateral side of the left lower chest 17 cm. below the left Axilla, margins everted, communicative of injury No. 1, small intestine is lacerated and coming out of injury No. 2. (3) Fire -arm wound of entry 1 cm. x 1 cm. x abdominal cavity deep, present on the lateral side of the left abdomen 9 cm. lateral to the umbilicus, margins inverted, charring is present around the wound. (4) Fire -arm wound of entry 1 cm. x 1 cm. x bone deep present on the outer side of the left upper arm 12 cm. below the top of the shoulder, margins inverted charring present around the wound. (5) Fire -arm wound of exit 12 cm. x 10 cm. x bone deep present on the inner side of the left upper arm, 5 cm. below left axilla margins everted, communicative of injury No. 4. ;