- (1.) CHALLENGE in this appeal is to the judgment and order dated 12.9.2011 passed by Sri Lukqman -ul -Haq, Addl. Sessions Judge/Special Judge (E.C.Act), Gorakhpur in S. T. no. 36/08 [State Vs. Rama Kant Yadav and 2 -others] arising out of Crime no. 174/07 P.S. Badhalganj District Gorakhpur whereby appellant no. 1 has been found guilty for the offence punishable u/s 307/34, 323/34 IPC and appellants no. 2 and 3 have been convicted u/s 307/34, 323/34 and 452 IPC. Each appellant had been sentenced to undergo ten years' imprisonment and fine of Rs. 2,000 with default stipulation u/s 307/34 IPC and three months' imprisonment u/s 323/34 IPC. Appellants no. 2 and 3 have been further sentenced to two years' imprisonment and fine of Rs. 1,000 u/s 452 IPC. All the sentences were directed to run concurrently.
(2.) FACTS germane to the appeal are that complainant Anand Kumar Yadav s/o Ram Ashish Yadav r/o Agilgauwa @ Bihuwa, P. S. Badhalganj, District Gorakhpur submitted a written report in P. S. Badhalganj on 14.3.2007 at 12.40 p.m. alleging that today at about 6.00 a.m. his mother Kailashi Devi was returning after throwing cow -dung accused Rama Kant started beating her with lathi. On hearing her shrieks when he came out of the house Swami Nath fired shot from country made pistol causing injury in his arm. Thereafter Lalji and Guddu s/o Rama Kant carrying gun and country made pistol barged into the house and in order to kill fired shots injuring his sister Mala and bhabhi Rinku Devi. The accused then made their escape good. This incident was witnessed by Rama Shanker s/o Sampati and several others, who intervened. On the basis of the written report case at crime no. 174/07 u/s 307, 323, 506 and 452 IPC was registered at the police station, investigation whereof was entrusted to SI Mithilesh Kumar Mishra. Ere that the accused persons got themselves medically examined at CHC, Badhalganj and following injuries were found on their person: Injured Anand Yadav, aged 19 -years - 11.40 A.M. 1. Lacerated wound 2 cm x 2 cm x 2cm deep on anterior aspect of left upper arm 13 cm above elbow joint. Oozing of blood present. Advised x -ray left upper arm AP and lateral view. Injury was kept under observation and duration was fresh. Patient was referred to District Hospital, Gorakhpur for x -ray and expert opinion Smt. Kailashi Devi, aged 48 -years - 11.50 A.M. 1. Contused swelling 7 cm x 3.5 cm on right shoulder region. Just above clavicle Red. Advised x -ray of right shoulder AP and lateral view. 2. Complain of pain on right wrist but no mark of external injury seen. 3. Complain of pain on left hip, but no mark of external injury seen. Injury no. 1 was kept under observation. Referred to District Hospital, GKP for x -ray. Injury were caused by blunt and hard object. Duration fresh. Smt. Rinku Devi, aged -25 years - 12.00 noon 1. Small round abrasions cm x cm, 4 in number on face dispersal in area of 13 cm. Red. Advised x -ray face. AP and lateral view. 2. Small round abrasion cm x cm, 4 in number on posterior aspect of left fore arm dispersal in area of 19 cm. Red. Advised x -ray left forearm AP and lateral view. Injuries no. 1 and 2 were kept under observation. Referred to District Hospital, GKP for x -ray and expert opinion. Duration fresh. Injuries were simple in nature. Km. Mala, aged -16 years - 12.10 P.M. 1. Small round abrasions cm x cm in the area of 13 cm dispersal on face and neck. Red Advised x -ray face and neck. Injuries was kept under observation. Referred to District Hospital, GKP for x -ray and expert opinion. Duration fresh. Injuries were simple in nature. The x -ray examination of the injured was conducted in Netaji Subhash Chandra Bose District Hospital, Gorakhpur on 15.3.2007. In the x -ray of left arm of Anand Yadav, two round radio opaque shadow of metallic density were seen in soft tissue over lateral aspect of mid arm. No abnormality was detected in the x -ray of Smt. Kailashi Devi. In the face x -ray of Smt. Rinku Devi Multiple round (six in number) radio opaque density shadows were seen in soft tissue over face region. No bony injury was found. In x -ray of left forearm no abnormality was detected. In the head and neck x -ray of Km. Mala two round radio opaque shadow of metallic density were seen in soft tissue on right side face. No bony injury was found. The investigating officer during investigation interrogated the witnesses and after visiting the place of occurrence prepared site plan. His investigation ended in charge -sheet against the accused persons.
(3.) AFTER committal of the case to the Court of Session charges for the offences punishable u/s 307/34, 323/34, 452, and 506 IPC were framed against all the accused, who abjured their guilt and claimed trial. The case against non -appellant accused Guddu Yadav was referred to Juvenile Justice Board, as he was a delinquent juvenile. In order to prove the charges, the prosecution had examined Smt. Kailashi PW -1, Complainant Anand Yadav PW -2, Smt. Rinju Devi PW -3, SI Mithilesh Kumar Mishra PW -4, Dr. S. K. Pandey PW -5, Km. Mala PW -6, Dr. T. N. Jha, PW -7, Constable Ram Pyare Gauram PW -8 and S.O. Mritunjay Kumar Pathak PW -9.;