Bala Krishna Narayana, J. - (1.) This criminal appeal was heard by us on 5.10.2017 on which date we had passed the following orders : Criminal Appeal No. 6320 of 2011 "Heard Sri S.K.Verma, Senior Advocate assisted by Sri Mahesh Chandra Joshi, Sri Raghvendra learned counsel for the appellant, Sri Saghir Ahmad, Sri J.K.Upadhyay, learned A.G.As. and Smt. Manju Thakur, State Law Officer. We will give reasons later. But we make the operative order here and now. This criminal appeal is allowed. The impugned judgement and order 12.10.2011 passed by Additional District & Sessions Judge, Court No.11 in Sessions Trial No. 319 of 2008 ( State Vs. Vivek Tiwari), convicting and sentencing the appellant under Section 302 IPC, P.S. Khajni, District Gorakhpur to undergo life imprisonment are hereby set aside. The appellant are acquitted of all the charges framed against them. The appellant shall be released forthwith, unless he is wanted in any other case. There shall however be no order as to costs. " We are now giving reasons :
(2.) Briefly stated the facts of this case are that P. W. 1 informant Shiv Kumar Tripathi resident of Village Jhuriya, Police Station Khajani, District Gorakhpur gave a written report on 8.5.2008 at Police Station Khajani stating therein that on 7.5.2008 one Monu @ Manoj Shukla had gone to Haranhi crossing where one Yashwant Singh resident of the same village met him and slapped him 4 to 5 times. The aforesaid incident was broadcasted in the village by Vivek Tiwari who was a resident of the same village as Monu @ Manoj Shukla, proclaiming that he had got Monu @ Manoj Shukla beaten severely and on account of the aforesaid incident while Monu @ Manoj Shukla and Sandeep Tiwari son of Shiv Kumar Tiwari were sitting on the eastern bank of pond of village Jhuriya at about 5 PM, Vivek Tiwari son of Narayan Tiwari came on a motorcycle from the side of Haranhi crossing and on seeing Manoj Shukla and Sandeep Tiwari he fired a shot aimed at Manoj Shukla who had started running away on seeing him alongwith Sandeep Tiwari. The shot fired by appellant Vivek Tiwari hit Sandeep Tiwari and as a result he fell on the ground. He was taken to the hospital where he died during treatment. The aforesaid incident had taken place in front of the house of Subhash Yadav and the same was also witnessed by P. W. 2 Gangesh Tiwari son of Sheshnath Tiwari resident of Village Jhuriya.
(3.) On the basis of the aforesaid written report Ext. Ka1, Case Crime No. 492 of 2008, under Section 302 IPC was registered against the appellant Vivek Tiwari. During the course of the investigation, the I.O. conducted the inquest on the dead body of Sandeep Tripathi and prepared the inquest report Ext. Ka2 and other related papers and then dispatched the dead body to the Sadar Hospital for conducting postmortem. The postmortem on the dead body of the deceased Sandeep Tiwari was conducted by P. W. 5 Dr. Vinod Kumar Mishra on 9.5.2008 at about 3 PM. He noted following ante-mortem injuries on the dead body of the deceased Sandeep Tiwari : (i) One oval wound of size 2 x 2.25 cm with blackening/charring (at rim) present at left shoulder blade. (ii) There is contusion over right hypochondriac of size 6 x 5 cm just below right subcostal rim, on dissecting the contusion a bullet recovered which as lacerated liver and overlying muscles and subcutaneous tissue. According to him the cause of death was haemorrhage and shock as a result of ante-mortem injury.;