M.M.LAL, J. - (1.) THIS is an appeal against the judgment and order dated 28.3.1978 passed by Sri Brahma Kishore, the then III Additional Sessions Judge, Kanpur by which he was convicted Sudhir Kumar Shukla under Section 302 IPC and has sentenced him to imprisonment for life.
(2.) ABOUT seven or eight years prior to this incident Shitla Prasad Misra deceased had lodged a first information report at Police Station Kotwali, Kanpur, against one Ashok Kumar alias Babban in connection with the murder of Uma Shankar alias Bare Babban which led to the prosecution of said Ashok Kumar and his three companions. On account of the same Ashok Kumar his companions were aggrieved with Shitla Prasad Misra deceased. The appellant was said to be a member of the party of the said Ashok Kumar. Shitla Prasad Misra deceased and the appellant etc. were also involved in a case under Sections 107/117 Cr. P.C. on account of the same the relations betwen the parties were strained. According to the case of the prosecution on 5.10.1976, at about 4.45 p.m. Shitla Prasad Misra deceased, along with his sales-man Laxmi Kant Gupta, was sitting in his embroi­dery shop, situated in Khas Bazar, Kanpur. At that time the appellant came at the said shop and started firing from a pistol which attracted witnesses to the place of ocurrence. The appellant ran away, Shitla Prasad Misra, who was injuried was rushed to the hospital, where he was medically examined. Rajendra Prasad Misra is the son of Shitla Prasad Misra deceased. He had brought him to the hospital. From the hospital, the said Rajendra Prasad Misra went to police Station Kotwali, Kanpur, where he lodged a written report of the incident, on which this case was registered. In support of its case the prosecution examined P.W. 1 Rajendra Prasad Misra, informant and two eye-witnesses P.W. 5 Durga Shanker Shukla and P.W. 6 Vijai Shanker Pandey. Both these eye-witnesses turned out to be hostile.
(3.) ON 5.10.1976 at 9 p.m., P.W. 3 Smt. Alka Srivastava, Magistrate had recorded dying declaration of Shitla Prasad Misra at the hospital. P.W. 4, Dr. A.K. Gupta had given a certificate on the said dying declaration that Shitla Prasad Misra was in a fit mental condition to give his statement. P.W. 2, Dr. B.M. Pandey, the then Medical Officer, U.H.M. Hospital, Kanpur, had examined injuries of Shitla Prasad Misra on 5.10.76 at 5.20 p.m. He had found the following injuries on his person: 1. Lacerated wound rounded left side abdomen at level to umblious 14 cm left. Diameters of wound 1 cm x .75 cm. Margins were blackned and inverted. Depth was kept under observation. 2. Lacerated wound left para spinal region, 1 cm x 1 cm at the level of, above the iliac crests,, third lumber spine margine were balckened, G.C. was weak. Pulse was 126 per minute. B.P. was 98/60. 3. Lacerated wounds rounded 1 cm x 1 cm back of left fore-arm two in number 5 on below olecranon. Margins were balckened. 4. Lacerated wounds two in number right hand one thonar eminence another over dorsum of writst 1.5 cm inner to raidsty-loid, dimensions 1 cm - 0.7 cm and 1 cm x 0.75 cm Margins were blackened. Fresh bleeding was present from all the wounds. Soft tissues were coming out of wound No. 2. ;