- (1.) D. K. Trivedi, J. The present crimi nal appeal has been preferred by the Slate of U. P. against the order of acquittal of the accused-persons of the charges levelled against them by order dated 3 12-1979 passed by the Sessions Judge, Faizabad. Accused-respondent Ram Achal alias Jok han Singh was prosectued under Section 302, IPC and accused-respondent Gaya Prasad Singh was prosecuted under Sec tions 109, 302, IPC in connection with an incident which was alleged to be taken place on 6-5-1978 at about 12. 30 p. m in village Raipur, P. S. Cantt. . District Faiza bad.
(2.) ACCUSED-respondent, Ram Achal alias Jokhan Singh is son of Gaya Prasad Singh. It is alleged that the accused-respondents live near the house of the complainant. It is said that on the date of the incident, some altercation took place between accused Gaya Prasad Singh on one hand and Surendra Pratap Singh on other hand regarding removal of dry fod der from near the house of the accused. It is said that Gaya Prasad Singh asked Surendra Pralap Singh (deceased) to re move the straw immediately but Surendra Pratap Singh (deceased) told him that as soon as labour is available it would be re moved. However, it is further alleged that accused Gaya Prasad Singh then instigated Ram Achal Singh who was standing nearby in his verandah armed with gun. came there and fired at Surendra Pratap Singh as a result of which he fell down on the ground. It is further alleged that the incident was witnessed by Dhruraj Singh, Hashing Lal Behari and Chandra Bux Singh. At that time, Surendra Pratap Singh was alive and therefore, he was put on a cot and with the assistance of village people he was brought to the road whereaf ter arranging a tempo he was brought over to the Sadar Hospital, Faizabad but before he could be taken inside the hospital, he died. Dhruraj Singh son of Surendra Pratap Singh (deceased) prepared a report and lodged the same at 3. 30 p. m. at P. S. Cantt. on the same day. It is also alleged that in the meantime a report about the dcalh of Surendra Pralap Singh was con veyed by the hospital authorities to the police station Kotwali. PW-6 Raj Narain Dubey came there and prepared the in quest report and sent the dead body to mortuary for post-mortem examination. PW-7 S. I. Ambika Singh received the pa pers through Home Guard Raghav Ram at about 4. 30 p. m. near Polytechnie and from there he proceeded to the place of incident reaching there at 5. 30 p. m. He recorded the statements of the witnesses and pre pared the site-plan Ext. Ka-1. He also re covered the blood-stained and plain earth from the place of the incident. He also recovered an empty cartridge from the place of the incident. On 7-5-1978 the investigation of this case was taken over by PW-11 Ram Krishna Shukla, S. O. who recorded the statements of the remaining witnesses and arrested accused Gaya Prasad Singh and Ram Achal Singh on 7-5-1978 and 10-5-1978 respectively. It is further alleged that he interrogated ac cused Ram Achal Singh and thereafter, on his pointing out he recovered the gun from the shop of National Arms Store, Rikab-ganj, Faizabad and thereafter, the empty cartridge and the gun so seized were sent to the Scientific Section, C. I. D. U. P. Lucknow for examination. He after com pleting the investigation submitted a charge-sheet against the accused persons. The post-mortem of the dead body of de ceased Surendra Pratap Singh was conducted by PW-8 Dr, D. N. Tiwari on 7-5-1978 at about 12 in the Noon. The doctor found the following ante-mortem injuries on the dead body of deceased Surendra Pratap Singh: (i) Regor mortis was found to be present in the upper and the lower extremities. The deceased was found to have a gun-shot wound of entry 7 cm x 6 cm abdominal cavity on the left iliiac fossa, oval in shape. The margins of the wound were inverted and directed down wards slightly. Blackening, tattooing or char ring was not present around the wounds. This was wound of entry. (ii) A corresponding wound of exit 10 cm. x 5 cm. x abdominal cavity communicating with injury No. 1 through and through with everted margins irregular in shape was found. No tattooing, charring or blackening was found. Just above injniry No. 1 a wad was found while eight pellets were found from near injury No. 2. On internal examination, according to the doctor the peritoneus of the deceased was found to be lacerated. The large intes tine, descending colon, pelvice colon, rec tum and small intestine underneath injury No. 1 were found to have been lacerated at various places. The bladder was found empty which was also found lacerated at multiple places under neath injury No. 1. According to the doctor the cause of death was due to shock and haemorrhage as a result of the ante-mortem injury No. 1. The post- mortem report is Ext. Ka-12. The prosecution in support of its case, examined as many as 11 witnesses; out of them PW-1 Dhuru Raj Singh, PW-2 Lal Behari, PW-3 Hashim and PW-4 Chandra Bux Singh are the witnesses of fact. PW-5 Vibhuti Prasad Singh, Consta ble, proved the FIR as well as chik report. PW-6, S. I. , Raj Narain Dube prepared the inquest report and sent the dead body of deceased Surendra Pratap Singh to mortu ary for postmortem exmaination. PW-7 S. I. , Ambika Singh conducted the initial investigation and on arrival of PW-11, S. I. , Ram Krishna Shukla, handed over the investigation of this case to him. PW-8 Dr. D. N. Tiwari conducted the autposy on the dead body of deceased Surendra Pratap Singh and proved the post- mortem report Ext. Ka-12, PW-9 Mukul Vertna a sales man of the National Arms Stores, proved the taking of the gun into possession by "the police, PW-10 Ram Asrey Pandey is Junior Scientific Officer. Scientific Sec tion, C. I. D. , U. P. Lucknow and PW-11, S. I. Ram Krishan Shukla is the Investigat ing Officer who after completing the in vestigation of the case, submitted a charge-sheet against the accused persons.
(3.) ON the other hand the accused perosns denied the prosecution case and stated that they have been implicated falsely in this case due to enmity. Their suggestion is that deceased Surendra Pratap Singh was killed in the night and in the morning when the same was detected, then a story was concocted. They also de nied the presence of the witnesses on the spot. On behalf of the defence three wit nesses were examined namely: DW-1 Mohd. Shamim, Registration Clerk proved the entries about execution of a will, DW-2 Ram Bilas, Record Keeper, of the office of Supdt. of Police, proved the previous FIR and DW-3 Bhola Nath Sarin, Junior Engi neer Electricity Board stated that on the date of the incident there was no electricity in the village Raipur.;