R. C. Deepak, J. - (1.) -The State of U. P. after grant of leave has filed the present Government appeal against the judgment and order dated 14.5.1991, passed by Sri I. P. Mittal, Sessions Judge, Mirzapur in Sessions Trial No. 182 of 1980 wherein he acquitted the accused-respondent Pappu alias Pratap Narayan for an offence punishable under Section 302, I.P.C. pertaining to Police Station Kotwali, district Mirzapur.
(2.) THE brief facts of the case are that Pyare Lal/the deceased was a labourer. He used to sell cold drinks etc. Similarly, accused-respondent Pappu alias Pratap Narayan was also engaged in cycle stand at the nearby cinema hall and he also used to sell the cinema tickets in black. It is alleged that the accused had taken cold drinks on credit from the deceased and certain money was outstanding against him. THE deceased alleged to have made repeated demand for the money, but instead of paying the same, the accused alleged to have threatened him to kill. It is further alleged that as usual in the night of 6.7.1980 the deceased alongwith his brother Ram Dulare was sleeping in a lane behind the house of one Khatri, that Mangara Devi was sleeping in front of the house of Ramji Khatri. Kedar Nath was also sleeping in a lane nearby. THE electric light was there. At about 11 in the night the accused Pappu alias Pratap Narayan son of Seva Lal resident of Makri khoh, Police Station Katra, district Mirzapur came there with weapon and made assault on the stomach of Pyare Lal, that the sound of fire awakened the people sleeping thereby. THEy saw that the accused made assault upon Pyare Lal and was running away from there. THEy made an attempt to apprehend him, but he succeeded to run away. After receiving the gunshot wound, the condition of the victim became serious and he was managed to send to hospital where Dr. A. K. Srivastava (P.W. 4) medically examined him and he noted the following injuries on his person and prepared the injury report (Ext. Ka-3) : Injuries.-Firearm wound of entry in abdomen 6 cm. above umblicus in mid line, 3 cm. x 2 cm. x peritoneal cavity deep. Margins lacerated inverted. THEre is blackening, tattooing and scorching around the wound. With these allegations the informant, i.e., Ram Dulare, the brother of the victim got an application prepared by one Kedar Nath and submitted the same at the Police Station Kotwali and on the basis of which a Case Crime No. 299 of 1980 under Section 307, I.P.C. (Ext. Ka-9) was registered against the accused. The injured died on 7.7.1980 at 5.20 p.m. and the case was converted under Section 302, I.P.C. After the preparation of the inquest, the dead body was sent for post-mortem. Dr. N. C. Verma (P.W. 9) conducted the post-mortem examination and he noted the following injuries on his person (Ext. Ka-12) : Stitched wound 13 cm. in length, 2 cm. Above the umblicus of the body. Blackening and tattooing around the wound. The internal examination disclosed 6 cm. long stitched wound on the anterior wall of stomach. There was another stitched wound on the right lobe of the liver. 49 small pellets were recovered from the abdominal cavity. The cause of death was shock and haemorrhage, as a result of the injuries. The investigation into the case was taken by Sri R. C. Pandey, the Sub-Inspector. He took down the statements of Ram Dulare, Kedar Nath, Prem Chandra and Shanker and visited the place of occurrence and prepared the site plan Ext. Ka-4 and effected the arrest of the accused Pappu alias Pratap Narayan and also recovered a country made pistol from his possession. Thereafter, the investigation into the case was handed over to Inspector P. N. Singh (P.W. 10). He recorded the statements of the accused and Smt. Mangra Devi and submitted the charge-sheet (Ext. Ka-13).
(3.) THE case was committed to the Court of Sessions for trial. THE charge under Section 302, I.P.C. was framed against the accused, who pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined as many as 10 witnesses. Kedar Nath (P.W. 1), Ram Dulare (P.W. 2), Mungara Devi (P.W. 3) and Prem Chandra (P.W. 5) are the witnesses of fact and the remaining are the formal ones. THE accused did examine no witness. We have heard Mrs. N. A. Moonis, learned A.G.A. for the State and Sri Prashant Kumar Singh, learned amicus curiae for the accused-respondent and perused the record.;