S. K. Jain, J. - (1.) -This criminal appeal has been filed under Section 374 (2), Cr. P.C. against the judgment and order dated 20.7.2002, passed by learned Additional Sessions Judge, Court No. 8, Bulandhahr in Sessions Trial No. 128 of 2000, State v. Vinod, under Section 302, I.P.C. relating to P. S. Shikarpur, district Bulandshahr and Sessions Trial No. 129 of 2000, State v. Vinod under Section 25 of Arms Act, P.S. Shikarpur, district Bulandshahr, whereby the learned Sessions Judge convicted the appellant under Section 302, I.P.C. and for the offence under Section 25 of Arms Act and sentenced him to life imprisonment for the offence punishable under Section 302, I.P.C. and rigorous imprisonment for three years and to pay fine of Rs. 2,000 and in default six months R. I. under Section 25 of Arms Act. However, it was ordered that both the sentences shall run concurrently.
(2.) THE facts for the purpose of this case are that about 4-1/2 months before the present occurrence murder of one Hari Bhagwan was committed. A report of that murder was lodged by one Om Prakash, in which deceased Mihi Lal Sharma of this occurrence and one Pradeep were named as accused. Deceased Hari Bhagwan was cousin of appellant Vinod. Rameshwar father of appellant Vinod was a witness in that case against the deceased of the present occurrence Mihi Lal Sharma. Because of this murder the family members of Hari Bhagwan bore enmity with the family of deceased Mihi Lal. Deceased Mihi Lal at the time of present occurrence was about 75 years of age. The occurrence in question took place on 24.10.1999. On that day, deceased Mihi Lal Sharma with his son Kamal Sharma, the first informant of the case, his wife Basanti Devi were gossiping with one Bishambhar in their house. At about 4.30 p.m. the deceased Mihi Lal asked his wife Basanti to prepare some tea. He went out of the house on the 'rasta' to urinate. Kamal Sharma and others heard the alarm of the deceased "bachao". Kamal Sharma ran out of the house and saw that appellant Vinod had caught the hand of his father and his father was trying to release himself and was requesting Vinod to leave him, but the appellant was saying that "hatya ka badla hatya hai" and fired at Mihi Lal from tamancha and Mihi Lal died on the spot. A written report of this occurrence Ext. Ka-1 was submitted by Kamal Sharma son of deceased Mihi Lal at P. S. Shikarpur on the same day at about 6.20 p.m. The place of occurrence, village Jakhaita is at the distance of about seven kilometer from the police station. Head Moharrir Ram Bilas P.W. 4, registered the case in G.D. No. 26 at 6.20 p.m. as per Ext. Ka-4 after preparing the chick F.I.R. Ext. Ka-3. The investigation of this case was taken up by S.I. Ghan Shyam Singh P.W. 5. He recorded the statement of the witnesses. On 25.10.1999, he held the inquest and got prepared the necessary papers for post mortem under his directions by S.I. Sunil Kumar, inspected the place of occurrence and prepared site plan Ext. Ka-13. On the place of occurrence, he found one empty cartridge of 315 bore and took it into his possession. He also took blood stained and simple earth in possession. He sealed the same in different boxes and prepared its memo Ext. Ka-14 and Ka-15. Thereafter on 30.10.1999 the investigation was taken up by Inspector P. D. Pathak, appellant Vinod had surrendered before the Court and was sent to jail on 1.11.1999. He recorded the statement of the appellant in jail and on 4.11.1999, took the appellant Vinod on police remand. On 5.11.1999 on the pointing out of appellant, in presence of Prem Pal, recovered the country made pistol from the sugar cane agricultural field, sealed the recovered country made pistol on the spot and prepared its recovery memo. On the basis of the recovery memo H/M Ram Bilas P.W. 4 wrote a chick F.I.R. Ext. Ka-5 and registered the case under Section 25 of Arms Act as per G.D. No. 19 at 10 a.m. P.W. 8 S.I. Ram Bilas Verma investigated the case under Section 25 of Arms Act registered against appellant and after usual investigation and obtaining sanction for prosecution from the District Magistrate submitted a charge-sheet against appellant under Section 25 of Arms Act.
(3.) THE blood stained earth and simple earth were sent for chemical examination. THE country made pistol recovered from the pointing out of appellant Ext. Ka-1 alongwith the used cartridge were sent for chemical examination. THE report of the Expert is Ext. Ka-23 and Ext. Ka-24 on the record and as per Ext. Ka-23 the used cartridge was fired from the country made pistol recovered on the pointing out of the appellant. The autopsy on the dead body of Mihi Lal was conducted by Dr. Avadhesh Kumar in District Hospital, Bulandshahr on 25.10.1999 at 10 a.m. The deceased was about 75 years of age and was of average built, rigor mortis was present all over the body. The following ante-mortem injuries were found on the person of the deceased : (1) Gun shot wound of entry 1/2 cm. x 1/2 cm. x abdominal cavity deep on left side back middle at T ten 2.5 cm. away from the mid spinal line. Margins were inverted, blackening, tattooing was present over the wound, direction was upward to the right. (2) Gun shot wound of exit 1 cm. x 1 cm. x chest cavity deep right on the right side part of chest 8 cm. medial to left nipple at 5 O'clock posterior margins were everted both the injuries were communicating to each other. The cause of death was shock and haemorrhage as a result of ante mortem injuries. In the opinion of the doctor these injuries were caused by fire arm and deceased could suffer these injuries on 24.10.1999 at 4.30 p.m. ;