S. I. Jafri, J. - (1.) APPELLANT Ganesh and Nandni alias Nand Lal have filed their appeal against the order of conviction under Section 302/34 IPC and sentence of life imprisonment, recorded by Sri B. N. Mohiley, III Addl. Sessions Judge, Mirzapur, by his judgment and order dated 3-5-76. The appellant Ganesh had filed Criminal Appeal No. 1013 of 1977 against the aforesaid conviction and sentence whereas Nandni alias Nand Lal appellant had filed his appeal no. 1196 of 1977. Both the appeals were connected by the Court.
(2.) THE case of the prosecution is that Shitalu deceased alongwith Banarsi PW 5 and Babu Lal, PW 7 had gone to deposit the electric dues in the Hydel Office situated in Mohalla Beltar near Dankeen Ganj, Mirzapur, on 24-7-74 at about 10 a. m. Babu Lal had deposited dues in the aforesaid Hydel Office which was in the name of his father and on the persuation of Babu Lal, his friends Shitalu and Banarsi had accompanied him. Alter the money was deposited in the Hydel Office, Babu L.al departed the company of Shitalu and Banarsi and left for his house, while Shitalu deceased and Banarsi were returning from the Hydel Office and when they had reached near Shiv Temple at about 10.30 a. m., the appellants met them. An alteration ensued between them and some grappling also took place between them. During that grappling, appellant Ganesh exhorted Nandni appellant to finish Shitalu, whereupon, Nandni alias Nand Lal, wipped out a country made pistol and fired at the deceased Shitalu. On receiving the shot, Shitalu fell down on the spot and the two appellants made good their escape. People were attracted to the scene of occurrence. Banarsi PW 5 took the injured Shitalu to Civil Hospital, Mirzapur where he was medically examined at 11. a. m. THEreafter, Banarsi went to the Police Station Katra and lodged the first information report of the occurrence, Ex. ka-2, naming the appellants as accused persons. Takeshwar Rai, Constable Clerk prepared the chick report at 11.50 a. m. (copy of the same is Ex. ka-5). On the basis of the aforesaid written report filed by Banarsi PW 4, he also registered a case in the General Diary under Section 307 IPC against the appellant. The injured was admitted in the Hospital and his dying declaration was recorded at 12.10 p. m. by Sri Rama Kant Dubey, Magistrate PW 1.0. The injured Shitalu was later on shifted to Shiva Prasad Civil Hospital, Varanasi, and there he remained under the treatment of the doctor for about a month or so and when his condition did not improve, he was brought back to Mirzapur by his relations where he succumbed to his injuries the next day of his arrival i. e.,on 17-11-1974. On the death of the injured Shitalu the police converted the aforesaid case from under section 307 IPC to under section 302 IPC, The S. I. concerned conducted the inquest on the dead body of Shitalu and sent the dead body for post mortem examination through constables in a sealed condition. The injuries of Shitalu before the death were first examined at about 11 a. m. on 24-7-74 by Dr. S. R. Bhattacharya, PW 3, in the District Hospital Mirzapur. Dr. Bhattacharya found the following injuries on the person of the injured :- Lacerated wound 5 cm x 1 1/2 cm at the back in the middle on the spine. A plastic cap was present on the wound. Blackening and tatooing was present, no pellets were seen from outside. No wound of exit was also seen. The injury was directed from backward to down-wards and inwards. He had advised X-ray of spine and abdomen. According to the opinion of the doctor the duration of the injury was fresh and the cause was fire-arm shot.
(3.) DR. G. D. Varanwal, conducted the autopsy on the dead body of the deceased on 18-11-1974 at 1.30 p. m. The doctor found the following ante- mortem injuries :- 1. Septic wound 5 cm x bone deep on back side over first, second and third lumber vertebrae. 2. Septic wound 13 cm x 21 cm x Bone deep over the back of hip and sacral region. 3. Septic wound 4 cm x 3 cm x muscle deep on the back of right hip joint. On internal examination the first and the second lumber vertabraes were fractured and an irregular type cavity had been formed in the two vertabraes, and out of them four gun shots were recovered. Spinal cord was also severed at the leval of L 1 and L 2. One gun shot was also recovered which was lying at the level of 8th left cosutal cartilage 5 cm. left to midline. The doctor scaled five gun shots recovered from the dead body and returned it to the Police Superintendent.;