- (1.) IMTIYAZ Murtaza, J. The present appeal has been filed against the judgment and order dated 19-2-1982 passed by the then Sessions Judge, Mirzapur in Sessions Trial No. 117 of 1981 whereby the appellant Vijay Shankar alias Lal Babu has been convicted under Section 302/307 IPC and sentenced to undergo rigorous imprisonment for life and 5 years respectively and appellants Rama Shankar alias Chhotey has been convicted under Sections 302/34 and 307/34 IPC and sentenced to undergo rigorous imprisonment for life and 5 years respectively. The sentences of both the appellants have been directed to run concurrently.
(2.) THE brief facts mentioned in the F. I. R. lodged by Ashok Kumar Misra is that about 15 days back Vijay Shankar alias Lal Babu and Chhote Shukla came to his house and asked him to marry his sister Deepak Kumari with Vijay Kumar alias Lal Babu. He replied that marriage of his sister is settled in village Tedui District Varanasi and 3rd June is fixed. He would not marry his sister with Vijay Kumar because he is not fit for her. Vijay Kumar and Chhote threatened him and told that neither he nor the person with whom the marriage has been settled would be left alive. In the night of 14/15-5-1981 after taking dinner he and his guest Vishwanath Upadhyay were sleeping out side the door. At about 2. 00 a. m. he heard the sound of gun shot and saw that Vijay Shankar alias Lal Babu shot Vishwanath Upadhyay. THEreafter he was caught hold be Chhote alias Rama Shankar by leg and Vijay Shankar shot him on the right side. On hearing alarm and sound of gun shot his sister Deepak Kumar came out of the house and his neighbour Raja Ram also reached there. THE assailants Vijay Shankar alias Lal Babu and Rama Shankar alias Chhote ran away towards the northern side. His guest Vishwanath Upadhyay died on the spot and he received serious injury. THE report was lodged at the police station on 15-5-1981 at 5. 30 a. m. THE distance of the police station from the place of occurrence is 5 miles. After the registration of the case SI Kamta Singh started the investigation. He recorded the statement of Amar Nath Singh and thereafter reached at the place of the occurrence at 6. 30 a. m. Injured Ashok Kumar was lying on a cot infront of the door and several persons collected there. He recorded the statement of injured and prepared Chitthi Majroobi (Ext. Ka-10) and sent him through constable Billar Ram for medical examination. He prepared the site plan (Ext. Ka-11 ). The dead body of Vishwanath Upadhaya was lying on a cot. He collected plain and blood stained earth and a piece of bed and prepared its recovery memo (Ext. Ka-12 ). Thereafter he prepared inquest report (Ext. Ka-13 ). He also prepared photo lash, challan lash (Ext. Ka-14 to Ka-16 ). The dead body was sent for the post-mortem examination through constable Yusuf Khan and home guard Bhola. Thereafter he recorded the statements of Deepak Kumari, Kunjan and witnesses of inquest reports. On 16-5-1981 he recorded statement of Raja Ram. On 22-6- 1981 after conclusion of investigation he submitted charge-sheet (Ext. Ka-17 ). The post-mortem of the deceased Vishwanath Upadhyay was conducted by Assistant Medical Officer District Jail Mirzapur. He noted the following ante-mortem injury: "gun shot wound in an area of 12 cm x 2 cm x bone deep on the top head 10 cm above the root of left ear. Brain matter came out. Blackening present. "
(3.) ACCORDING to the opinion of doctor the cause of death was due to shock and haemorrhage as a result of ante-mortem injury. Dr. G. D. Dubey medically examined the injured Ashok Kumar on 16-5-1981 and he noted the following injuries: (1) Four Gun shot wounds of entrance in an area of 6 cm x 5 cm on right side lateral surface of chest 6 cm below Rt. Axilla size of each varying from 1. 5 cm x 1 cm to 1 cm x 1 cm. Dept could not be ascertained as probing is not advisable. Tattooing is present around the wound. Margins lacerated and inverted. Injury K. U. O. Adv. X Ray Chest. (2) Abrasion 6 cm x 1 cm on right side chest just near Injury No. 1. (3) Gun shot wound of entrance lacerated and inverted margins size 1 cm x 1 cm x 2 cm on left arm anterio medical surface 4 cm above left Elbow. Injury K. U. O. Adv. X-ray.;