B.S.Chauhan, J. - (1.) THIS is an appeal against the judgment and order dated 22.2.1979 passed by the Ilnd Additional Sessions Judge, Moradabrd passed in sessions trial No. 335 of 1978 where in the appellants have been convicted under Section 302,1.P.C. and awarded the imprisonment for life, under Section 323/34,1.P.C. R.I. for six months and under Section 307/34,1.P.C. R.I. for four years. However, all the sentences have been directed to run concurrently.
(2.) ACCORDING to the prosecution, the case is that on 20/21.12.77 at about midnight the appellants along with two other co-accused namely, Rajendra Singh and Badam Singh all armed with single barrel guns entered the house of injured complainant, Ali Mohammad, P.W. 2 where the complainant was sleeping along with his father Niadar Bukhsh, deceased, aged about 75 years and his son, Zaheer Ahmad. The said three persons were sleeping on the sugar cane leaves and there was sufficient light of the lantern (Ext. 2) inside the above said premises at that time. All the said three persons belonging to the complainant side were lying covered with separate quilts. After hearing the noise of the foot- steps of the above said accused persons, complainant Ali Mohammad, P.W. 2 had awaken. Appellant No. 2 Mahendra Singh fired a shot on the person of the deceased Niadar Bukhsh hitting him in his abdomen leaving a clear mark on the quilt which the deceased had put on. Ali Mohammad, P.W. 2 immediately rushed towards Mahendra Singh, appellant No. 2 and caught hold of him by the cloths. Accused, Mahendra Singh dragged the complainant Ali Mohammad, P.W. 2 and took him out of the said part of the premises causing him injuries on the knees. At the instigation of co-accused, Sadam Singh, appellant, Diwan Singh fired a shot on complainant, Ali Mohammad, P.W. 2. However, the said shot missed its target and hit the wall of the said premises. Appellant Mahendra Singh got himself released from the complainant. After hearing the cries of the complainant, Ali Mohammad and his son Zaheer Ahmad, witnesses Sharif Ahmad, P.W. 4 Sukhan, P.W. 5 and other persons reached the place of occurrence and on being challenged by the said witnesses the accused persons fired their guns in the air and escaped from that place. Deceased Niadar Bukhsh had died spontaneously by the gunshot wounds caused by the appellant, Mahendra Singh. A written report was scribed by Sharif Ahmad P.W. 4 of the said incident on the dictation of the complainant, Ali Mohammad, P.W. 2 which was handed over by the said complainant to Har Dayal Singh, Head Muharrir, P.W. 3 at police station Didauli on 20/21.12.77 at 3.20 a.m. Har Dayal Singh, P.W. 3 also found the injuries on the person of the complainant, Ali Mohammad which was duly noted in the general diary. The complainant was referred to Dr. B. C. Khanna, P.W. 9 who examined the said complainant on 21.12.77 at about 1 p.m. and found the following injuries on his person : 1. Abrasion 2 cm. x 1 cm. on the inner aspect of front of left knee just inner to upper inner end of left pattela bone, reddish brown scap present, which do not bleed after scabbing, surrounding margins are red. No tailing present. No mud particles are attached or embedded. 2. Multiple abrasions in an area of 2.5 cm. x 2.5 cm. on the antero medial aspect of upper part of left leg just inner side of tibial tubercle, reddish brown surface-scab present. No bleeding no scabbing. No mud particles embedded heaped up surface present on lower side of abrasions. In the opinion of Dr. Khanna, P.W. 9 the above side two injuries of the complainant were simple in nature and caused by friction against some hard object and were about half a day old at the time of his medical examination. According to Dr. Khanna, P.W. 9, the said injuries could have been received by the complainant on the night between 20th and 21st of December, 1977 at about 12 O'clock in the night.
(3.) THE dead body was recovered by the Investigating Officer, K. P. Gupta, S.I. who could not be examined by the prosecution, because of his death at the time of trial, conducted the preliminary investigation of the case, took the dead body of the deceased Niadar Bukhsh in his custody and sent it for post mortem examination in a sealed cover. Dr. B. K. Sinha, P.W. 12 conducted the post mortem examination of the dead body of the deceased Niadar Bukhsh on 21.12.1977 at about 4 p.m. and found the following ante mortem injuries on the person of the deceased Niadar Bukhsh : 1. Gun shot wound of entrance 1 cm. x 6 cm. in epigastric region, 4 cm. about umblicus margins inverted blackening-and scorching present omentum and loops of intestines coming. 2. Gun shot wounds of exit six in number 0.3 cm. x 0.3 cm. each in an area of 4 cm. x 3 cm. on the right side of abdomen just above umblicus- margins everted-no blackening or scorching present. Direction upwards to downwards, slightly backwards on front. On the internal examination of the said dead body Dr. Sinha P.W. 12 found the rectum muscle lacerated up to pubic symphysis, peritonium was found lacerated under the injury. The interior wall of the stomach was lacerated. Small intestine was lacerated at multiple places. Liver under Injury No. 1 was also lacerated. Gall bladder was also lacerated. Twenty small gunshots (Ext. 14) were recovered from rectum muscle and peritonial cavity. Six small gunshots (Ext. 14) were taken out of the small intestine. One cap and 3 wadding (Ext. 15) were taken out from the liver. Bladder was lacerated and 8 small shots (Ext. 16) were taken out of the same.;