- (1.) G. Malaviya, J. has been preferred by Daya Shankar alias Bhola and Criminal Appeal No. 3830/1981 has been preferred by Ashok Kumar against their conviction and sentence in Sessions Trial No. 667/1980 by the judgment and order dated 21-10-1981 passed by the Hnd. Additional Sessions Judge, Fatehpur. Both the appel lants were convicted under Sections 302/34, Indian Penal Code and were given life imprisonment. However one Rajjan was also tried along with the appellants but was acquitted by the Sessions Judge.
(2.) ACCORDING to a written First Infor mation Report lodged at Police Station Khaga on 9-8-1990 at 8. 30 p. m. by PW-1 Uma Shankar, he as also his uncle's son Daya Shankar used to reside in village Majhalia, Police Station Khaga in adjacent houses. Uma Shankar had a cultivatory plot of 15 or 16 bighas in Kadihar towards south of the village where Dayay Shankar had also his field, Uma Shankar had sown Urd and Moong in some portion of the said plot. Appellant Ashok Kumar s/o Daya Shankar accused had cut the mend of his plot with the result that the rain water had entered the crop sown by Uma Shankar. When Uma Shankar's son Ram Babu went to the fields in the morning at about 8 a. m. and saw the fields flooded with water he complined to Ashok Kumar as to why he was ruining his crop? An altercation ensued between Ram Babu and Ashok Kumar appellant. Hearing their altercation Uma Shankar went to that place from his tube well and after pacify ing them persuaded Ashok to leave the place. While leaving the place Ashok ap pellant had threatened Ram Babu with dire consequences. In this background when on the same evening at about 6. 30 p. m. Ram Babu was repairing the roof of his house where his younger brother Ram Niwas and younger sister Asha as also his wife's brother Munni Lal were present, Daya Shankar armed with his licensed gun and Ashok Kumar armed with a country made pistol together with one Rajjan armed with a lathi came in front of his house near the kulia. Rajjan exhorted his companions to kill Ram Babu. Hearing the said exhorta tion Uma Shankar complainant came out from his house and saw Daya Shankar and Ashok Kumar firing on his son Ram Babu from their licensed gun and country made pistol respectively. Ram Babu fell down of which Daya Shankar exclaimed that he had died and they may leave. Thereafter the three miscreants left the place and went towards south. When Uma Shankar went to the roof he found that shots had hit Ram Babu is his chest, abdomen and the thighs. Ram Babu was unconscious. He immediately put his son Ram Babu on a cot and took him to the hospital, However near Kotadhan Hotel on the G. T. Road his son died. Uma Shankar had collected the empty cartridge which had been fired by Daya Shankar from the place of the inci dent. Uma Shankar went to the police sta tion and mentioning the fact in the First Information Report that about 2 or 3 years back there was an altercation between him and Daya Shankar in the consolidation courts due to which Daya Shankar etc. were inimical to him he said that it was on account of that enmity that earlier in the morning the accused had first flooded wa ter in his field and due to the altercation in the field all the three persons had come to his house in the evening and had killed his son. This report which had been scribed by one Awadhesh Singh was lodged at police station-Khaga in presence of PW-6 Sub-Inspector Mukhtar Ali when head constable Sukhpal Singh had prepared the chik. The investigation was taken up by Sub-Inspector Mukhtar Ali who, after re cording the statement of head constable Sukhpal Singh and after preparing the memo of recovery of the empty cartridge, took the statement of the witnesses of re covery. He also recorded the statement of the first informant Uma Shankar. Thereaf ter he left the police station to visit the place of occurrence. However he found the dead body of Ram Babu at Katoghan padao near the hotel of Awadhesh Singh on the G. T. Road below a Tamarind tree on a cot. After appointing the witnesses he prepared the inquest and sent the dead body for post mortem examination. He also recorded the statement of Awadhesh Singh, scribe of the First Information Re port as also the witnesses of inquest. He left for the village of occurrence at 12 mid night where he reached at 2 O'clock in the mid night, Reaching the place of the inci dent he recorded the statement of the eye witnesses Ram Niwas, Asha and Munni Lal and a few others. Thereafter he re corded the statement of the ladies of the complainant's family. In the morning he tried to apprehend the accused persons who were not found at their residence. He searched the houses of the accused persons but did not find any incriminating article from there. Thereafter he returned to the residence of the complainant and prepared the site-plan on his pointing out. He al ready sent informers to get the where abouts of the accused. At about 7 a. m. he got an information about the appellants being present near the G. T. Road. Conse quently he reached the G. T. Road from where he arrested all the three appellants. After recording their evidence and after searching them he recovered the licensed gun from accused Daya Shankar along with his belt of cartridge and ten live car tridges. He also took into possession the lincence of the gun from Daya Shankar which had been put in a plastic cover. He prepared their memos. brought the accused to the lock-up where the accused were put inside the lock- up and the recovered arti cles put in the Maikhana. He sent the re covered gun along with the recovered car tridges to the ballistic expert Lucknow for comparison. After completing the investi gation he submitted the charge-sheet against the accused persons. The post-mortem on the dead body of Ram Babu was performed by PW-4 Dr. S. P. Pandey on 10-9- 1980 at 3. 00 p. m. He found the following ante-mortem injuries on the person of the deceased:-- " (1) Multiple gun shot wound of entry over an area of 20" x 12" on front of abdomen and chest, each measuring 1/8" x 1/8" x muscle deep or cavity deep, margins inverted lacer ated, no blackening and tattooing present. (2) Multiple gun shot wounds of entry on front of upper 1/2 of left thigh each measuring 1/8" x 1/8" x muscles deep, margins inverted and lacerated. No blackening and tattooing present. (3) One gun shot wound of entry on front of rt. shoulder 2" below lip of shoulder measur ing 1/8" x 1/8" x muscle deep, margins in verted lacerated. No blackening and tatooing present. (4) Two gun shot wounds of entry in an area of 1" x 1" on front of left shoulder each measuring 1/8" x 1/8" x muscle deep, margins inverted and lacerated. No blackening and tattooing present.
(3.) THE accused had pleaded not guilty and claimed to be tried. To prove the prosecution case, apart from the technical evidence, the prosecu tion had produced PW- 1 Uma Shankar, father of deceased, PW-2 Asha Devi, sis ter of the deceased and PW-3 Ram Niwas, brother of the deceased as witnesses of fact. The report of the Ballistic Expert dated 24-11-1980 was also tendered in evidence as Ext. Ka. 16 which indicated that since the fire pin of the breach block of the gun appeared to be tampered, con sequently it was not possible to compare the marks on the empty cartridge.;