Anant Kumar, J. - (1.) BOTH these appeals are connected with each other and arise out of the same judgment and order and as such, they are disposed of by a common judgment. Criminal Appeal No. 4149 of 2007 under section 374(2) of the Code of Criminal Procedure has been filed by Satyabrat Rai whereas Criminal Appeal No. 5206 of 2007 has been filed by Rajeev Kumar Tiwari alias Babloo. These criminal appeals have been filed against, the judgment and order dated 16.6.2007 passed by Additional District and Sessions Judge, Court No. 10, Gorakhpur in Sessions Trial No. 142 of 1998, State v. Satyabrat Rai and others by which the appellants have been convicted and sentenced under section 302 read with section 34 IPC to undergo imprisonment for life and a fine of Rs. 25,000/ - has been imposed. They have been further convicted and sentenced under section 452 IPC to undergo rigorous imprisonment for 3 years and a fine of Rs. 2,000/ - has been imposed. In default of payment of fine, further two years additional imprisonment has been imposed. However, the accused persons have been acquitted under section 506 IPC.
(2.) ON 21.6.1997 at 22:50 P.M., complainant Mata Prasad Dwivedi had submitted a written complaint at police station Cantt. District Gorakhpur to this effect that on 21.6.1997 the complainant and his sons Ashok Kumar Dwivedi, Dan Bahadur Dwivedi, Subhash Dwivedi and neighbour Ramagya Gupta son of Suresh Gupta were sitting in front of residential house of Power House Colony where there was light of electricity. At about 9:45 P.M. a Maruti Gypsy of white colour came all of sudden and stopped there from which Anand Pandey, Shri Prakash Shukla, Satyabrat Rai son of late Dan Bahadur and Rajeev Kumar Tiwari alias Babloo came out having weapons in their hands. Seeing them, we ran away. The complainant's son Ashok Kumar Dwivedi rushed into the residential house. The accused persons chased him in the house and opened fire upon him. Other son Dan Bahadur ran behind them and he was also shot dead on the road who had died mere. Entire incident was seen by all of us. All the accused persons giving threat of life and making fires ran away in the Gypsy. It is further stated in the complaint that the complainant has taken his injured son Ashok Kumar Dwivedi to District Hospital Gorakhpur where he died. This incident was occurred due to enmity. The request was made that his report be lodged and legal action be taken. On the basis of the complaint, a chik F.I.R. was prepared at Crime No. 1311 of 1997, under sections 302, 506, 452 IPC. The investigation was handed over to Surybali Singh, Investigating Officer who visited the place of occurrence and prepared the site plan. From the spot, live and used cartridges were recovered. The Investigating Officer collected the bloodstained and plain soil from both the places i.e. the place where the deceased Ashok Kumar Dwivedi was shot fire inside the house and the place where the dead body of Dan Bahadur Dwivedi, other son of the complainant was found live and used cartridges were collected. Inquest report of both the deceased persons was prepared and the dead bodies of both the deceased persons were sent for postmortem. The post -mortem examination of both the dead bodies of Ashok Kumar Dwivedi and Dan Bahadur Dwivedi was done by Dr. O.N. Gupta on 22.6.1997.
(3.) THE doctor found the following ante -mortem injuries on the dead body of the deceased Ashok Kumar Dwivedi: - - (1) Fire arm wound of entrance 1 c.m. x 1 c.m. x chest cavity deep on the left side chest 6 c.m. below left nipple at 6 O'clock position, margins inverted. Blackening and charring around the wound, margins present directed. (2) Fire arm wound of entrance 1/2 c.m. x 1/2 on the right side lower jaw back, margins inverted, blackening and charring around the wound margins present. (3) Fire arm wound of exit 3/4 c.m. x 3/4 c.m. on the middle of left side neck margins averted, corresponding with injury No. 2. (4) Fire arm wound of entrance 1/2 c.m. x 1/2 c.m. on the back of left forearm back lower 3rd margins inverted. Blackening and charring around the wound margins present. (5) Fire arm wound of exit 3/4 c.m. x 3/4 c.m. margins averted sidelong on the back of left arm corresponding to injury No. 4.;