Poonam Srivastav, J. - (1.) -The present criminal appeal preferred against the judgment and order dated 29.8.2003, passed Sri Subedar Yadav, Additional Sessions Judge, F.T.C. No. 3, Ballia in Session Trial No. 14 of 2001 under Section 302, I.P.C. Conviction of the appellant is life imprisonment and fine of Rs. 10,000. In default of payment of fine, further imprisonment of six months.
(2.) THE accused-appellant was tried in Session Trial No. 15 of 2001 under Section 25 of Arms Act simultaneously but he was acquitted for the said offence. The occurrence took place on 10.5.2000 at 8.30 p.m. regarding which first information report was lodged by Yadunandan Ram son of late Bhikhari Ram r/o of village Madhubani, P.S. Bairiya, district Ballia. Facts of the present case are that the appellant alongwith one Vashistha Ram son of late Lallan Ram were consuming toddy in front of house of witness Ashok son of Bali Ram. They were using abusive language, which was objected by Ashok. The deceased Anjani Kumar arrived at the scene of occurrence and tried to stop the appellant from using abusive language. The appellant Raj Kishore alias Chaukidar got agitated and took out his unlicensed gun and fired at the deceased Anjani Kumar, who died as a result of firearm injuries. On hearing the shots, Dashrath Ram son of Vasropan Dushadh and Ram Nath son of Mohan Ram arrived at the scene of occurrence but they were threatened by the accused and finally managed their escape.
(3.) THE first information report was registered at 9.30 p.m. at Case Crime No. 123 of 2000 by Yadunandan Ram (P.W. 1). THE investigation was taken over by the Sub-Inspector Ramji Yadav. He arrived at the scene of occurrence and performed panchayatnama Exhibit 5A and sent the body for post-mortem. THE post-mortem report Ext. Ka-2 is dated 11.5.2000. THE post-mortem was performed at 4.30 p.m. by Dr. B. K. Roy. According to the opinion of the doctor, cause of death is due to shock and haemorrhage as a result of ante-mortem injuries. THE death was recorded half day old at the time when post-mortem was performed on 11.5.2000. According to the post-mortem report, the ante-mortem injuries are as follows : "(1) Firearm wound of entries on the left side of front of neck and 6 cm. above the left sterno-clavicular joint direction of wound is downward and lateral outwards. Margin inverted, blackening of wound is present. Charring around the wound is present. Size of wound is 3.5 cm. x 3.5 cm. (2) Lacerated wound size 4.2 cm. x 4 cm. x cavity communicating under the injury No. (1) on probing on the left lower part of axilla. Margin everted." On 24.5.2000, the accused surrendered in the Court of Chief Judicial Magistrate, Ballia. The prosecution also claims that recovery of firearm was made on 3.6.2000 at the pointing out of the accused from his house. The firearm recovered was a tamancha of 303 bore. The trial proceeded under Section 302, I.P.C. as well as Section 25 of Arms Act. The prosecution examined the complainant Sri Yadunanadan as P.W. 1, Ashok as P.W. 2. The occurrence is alleged to have taken place in front of his house. P.W. 3 Dashrath, P.W. 4 Ram Chandra Ram scribe, P.W. 5 Dr. B. K. Roy, P.W. 6 Head Moharrir 19 C.P. Rajdev, P.W. 7 Totil Prasad, P.W. 8 Investigating Officer Ram Ji Yadav, P.W. 9 S.I. Kabilash Thakur, Investigating Officer of the case under Section 25 of Arms Act, P.W. 10 Ram Saran Kushwaha, who proved the documents adduced in evidence.;