- (1.) HEARD Sri R.B. Sahai, learned counsel for the appellant, Sri Vikas Singh, learned counsel for the complainant and Sri Akhilesh Singh, Learned Government Advocate assisted by Sri Anand Tiwari, learned AGA for the State.
(2.) THE accused appellant was put to trial by the Sessions Judge, Fathepur in Sessions Trial No. 508 of 1983 for an offence under Section 302 IPC. He was found guilty and was convicted and sentence to imprisonment for life under Section 302 IPC by the Sessions Judge, Fatehpur vide judgment and order dated 17.10.1984.
(3.) THE prosecution case was that on 29.10.2013 at about 8 P.M., the informant alongwith Jai Karan, son of Banshidhar were returning home after easing themselves. The father of the informant was coming out of his house through the main door and simultaneously, accused Santosh Kumar came out of the house of his aunt Ram Kali. The accused was carrying a gun and a 'mala'(garland) of cartridges. By that time, the informant and Jai Karan reached in front of the house of the victim. The accused Santosh Kumar fired two shots one after the other at the father of the informant. The fire struck at the chest of the victim Rameshwar. They witnessed the incident in the light of torch and a lantern which was kept on the chabutra of the house of the informant. It was stated in the FIR that there was a dispute between his father Rameshwar and neighbour Ram Kali over the water of the 'Nabdan' of the house of Ramkali flowing towards the land of Rameshwar. His father Rameshwar warned Ram Kali on several occasions that the water of 'Nabdan' should not flow through his land but the accused and his aunt did not pay heed to him, rather they stated that the land belonged to them. Two -three days prior to the incident, accused Santosh Kumar threatened Rameshwar deceased with dire consequences. The accused ran away after firing two shots at the deceased carrying his gun and 'mala' of cartridges. Indrapal PW -1 and Jai Karan PW -2 were examined who narrated the eye witness account of the incident occurred on 29.10.1983. Indrapal PW -1 in his deposition narrated the incident and affirmed the version of the FIR. In his examination -in -chief he has categorically deposed that the dispute was with regard to water of 'Nabdan' flowing over the land of informant and his father. After the accused had left, he reached near his father and found him dead. Blood was oozing from the injuries sustained by the victim and the clothes and the ground near the dead body were stained with blood. The deceased was wearing a coat and also had an 'angauccha' on his shoulders. He was also wearing a 'Bandi' and a shirt under the coat and an underwear under 'Dhoti'. He wrote the FIR inside his house and went to the police station Kalyanpur to lodge the same. He further stated that after the Investigating Officer came to the spot, he had shown the torch and the lantern burning at the chabutra. The torch and the lantern were handed over to the Investigating Officer. The informant further stated that accused Santosh Kumar was living with his aunt Ram Kali after the partition and the father of accused Santosh Kumar was living in the house adjacent to the house of Ram Kali. Infact till 1975, Ram Pal, father of the accused and Ram Kali lived together in the same house. Later on, a partition had taken place and the house was divided by raising a wall. Now, from 1975, Ram Pal, father of accused and Ram Kali aunt of accused were living separately. PW -2 Jai Karan has given eye witness account of the occurrence in support of the prosecution. He has affirmed his presence on the spot of the incident and has stated that he was going to the house of informant to borrow a plough from the deceased Rameshwar. The incident was witnessed by him, informant Indrapal, Sukhdin and neighbours. PW -3 Dr. Abdul Rehman conducted the postmortem examination on 31.10.1983 at 4:40 P.M. He found the following ante mortem injuries on the dead body of Rameshwar 1) Multiple firearm wounds of entry in an area of 19 cm x 15 cm lower part of front of neck, upper sternal area and right pectoral region each wound measuring 3/4 cm x 3/4 cm. No blackening and tattooing were present. 2) Multiple firearm wounds of entry on right side of abdomen -back(Lumber region and right flank) each wound measuring 1 - 1/2 cm x 1 cm to 3/4 cm x 3/4 cm. On opening the dead body, he found the right lung lacerated, The thyroid cartilage was punctured. The small intestine and the Omentun (mesentery) were also lacerated. Dr. Rahman recovered one large pellet of pea size and 3 small pellets from the above mentioned two ante -mortem injuries, Right pleura was lacerated. About one litre of fluid blood was present in the right chest cavity. About 1/2 litre of blood was present in the abdominal cavity. About 3 oz. of digested food was present in the stomach. The small intestine and the large intestine were empty. The cause of death was shock and hemorrhage on account of ante mortem injuries. It is further stated by Dr. Rehman that firearm injuries to the victim could have been caused by any firearm or a gun. He also stated that two firearm injuries were the result of two separate gun shots and were sufficient to cause death in the ordinary course of nature. He, however, denied the suggestion of the defence that the second injury was caused by two shots not one. PW -4 Head Constable Shiv Nandan Prasad was posted as Head Moharrir at Police Station Kalyanpur. He deposed that the written report was handed over by the informant Indrapal at the police station on 29.10.1983 at about 21:45 hours. The check FIR was prepared on the basis of said report and concurrent entries were made in the GD at serial No. 33. A case was registered against the accused Santosh Kumar under Section 302 IPC. The check report bears his signatures and the signature of SI Jagjivan Singh who was present at the police station at that time. The investigation was entrusted to SI Jagjivan Singh. The Investigating Officer SI Jagjivan Singh was examined as PW -5. He deposed that the case was registered in his presence at the police station on 29.1.1983 at 21:45 hours. He commenced the investigation immediately and recorded the statement of Head Moharrir Shiv Karan Prasad Dubey and then the statement of complainant at the police station. He alongwith other police officers reached the place of incident at about 11 P.M. He has conducted inquest of the dead body of Rameshwar on the next day as it was dark. He deputed constables at the place of occurrence for safety of the dead body and left alongwith other constables and Sub -inspectors in search of the accused. He arrested accused Santosh Kumar on 30.10.1983 at about 3:30 A.M. from the bridge of Ram Ganga canal. The accused was carrying with him a SBBL gun and a 'mala' of cartridges. The gun and 'mala' of cartridges were taken into possession and memo was prepared. Thereafter the statement of accused was recorded by the Investigating Officer and he alongwith accused Santosh Kumar with the recovered material came to the spot. Thereafter the inquest was prepared and the dead body was sent for postmortem examination.;