Surendra Vikram Singh Rathore, J. - (1.) UNDER challenge in the instant Criminal Appeal is the judgment and order dated 28.10.2005 passed by Additional Sessions Judge, Court No. 17, Allahabad, in Special Sessions Trial No. 590 of 2003, arising out of Case Crime No. 261 of 2002, Police Station Phoolpur, District Allahabad, whereby appellant Santosh Kumar Yadav was convicted for the offence under Section 302 IPC and the remaining appellants Ram Awadh and Ram Babu were convicted for the offence under Section 302 IPC read with Section 34 IPC. For the offence under Section 302 IPC, appellant Santosh Kumar Yadav and for the offence under Section 302 IPC read with Section 34 IPC, appellants Ram Awadh and Ram Babu were sentenced to undergo rigorous imprisonment for life and also with fine of Rs. 3,000/ - each with default stipulation of six months' additional rigorous imprisonment. Appellant Santosh Kumar Yadav was further convicted for the offence under Section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year and also with fine of Rs. 1,000/ -. Both the sentences were directed to run concurrently.
(2.) ABRIDGED facts, necessary for the disposal of the instant appeal, are that complainant Krishna Chandra Yadav lodged a first information report at Police Station Phoolpur on 01.09.2002 at 11.45 AM alleging therein that in village Amolwa, he has been allotted a residential plot area one biswa ten ghoor and the possession of the same was handed over to him by the Naib Tehsildar. Regarding this land, a case was going on with Ram Awadh (appellant), which was decided in his favour. On 01.09.2002, his son Pramod Kumar along with Kalloo son of Heera Lal Dhobi had gone to make arrangement of labourers. When they were coming back and reached in Harijan Basti in front of the house of Bajrangi then appellants Ram Awadh and Santosh Kumar, who were the residents of village Mahjudwa, and appellant Ram Babu, who was resident of his village, challenged his son and when his son turned back to see then on the exhortation of appellants Ram Awadh and Ram Babu, appellant Santosh Kumar @ Pappu fired with his country made pistol. His son, leaving his cycle, ran away and because of gun shot injury, he fell down and died. Kalloo, who was accompanying the deceased at that time, raised alarm. This incident is alleged to have been witnessed by Amar Bahadur, Harish Chanra Yadav, Bhim and other persons, who also raised alarm but the accused persons were successful in making good their escape. This incident is alleged to have taken place on 01.09.2002 at 11.00 AM. The complainant went to the police station along with Kalloo and lodged the first information report which was registered only after 45 minutes of the occurrence. During course of investigation, with the permission of the court, the statement of appellant Santosh Kumar Yadav was recorded by the Investigating Officer wherein he offered to get the weapon of offence recovered. So he was taken on police remand by the Investigating Officer and on 10.09.2002, on his pointing out, the weapon of offence which was a country made pistol of 12 bore was recovered along with empty cartridge which was found wrapped in a Gamchha.
(3.) AFTER registration of the first information report, inquest proceedings were conducted and the dead body of the deceased was sent for postmortem which was conducted on the body of the deceased on 02.09.2002 at 03.30 PM. According to the postmortem report, the time since death was about one day. Age of the victim was about 18 years and the following ante -mortem injuries were found on his person: - - "i) A firearm wound of entrance about 4 cm x 4 cm into chest cavity deep on left scapular region on back of chest direction of wound is obliquely towards medial side and anterior side. Margins are inverted. Blackening and tattooing is present. Pleura, larynx, pericardium and heart were lacerated. One wedding and 44 small pellets were recovered from the body of the deceased and after sealing the dead body, it was sent to Senior Superintendent of Police, Allahabad. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of ante -mortem firearm injury.";