Bala Krishna Narayana, J. - (1.) This criminal appeal has been preferred by the accused-appellants Gulab Chand (A1) and Ghanshyam (A2) against the judgment and order dated 9.3.1984 passed by Additional Sessions Judge, Gyanpur, Varanasi in S.T. No. 30 of 1983 (State Vs. Gulab Chand and another) by which (A1) Gulab Chand has been convicted and sentenced to imprisonment for life under Section 302 IPC read with Section 34 IPC while (A2) Ghanshyam has been convicted and sentenced under Section 302 IPC simplicitor respectively.
(2.) Briefly stated the facts of this case are that the deceased Ram Naresh Singh who was working as Jamadar in E.Hill Company, Khamaria for more than 20 years preceding the date of incident, was allotted a residential quarter within the campus of E.Hill company itself. The informant Brijnath Singh (P. W. 1), the real elder brother of the deceased Ram Naresh Singh was residing in his house in Village Tikra, P. S. Mirzamurad, District Varanasi. The mother of the informant Brijnath Singh P. W. 1 and deceased Ram Naresh Singh used to live with Ram Naresh Singh. On 20.9.1979, the date of occurrence, informant Brijnath Singh had come to Khamaria to meet his mother. After staying in the house of the deceased Ram Naresh Singh for sometime, at about 7:30 P.M. on the same day, the informant Brijnath Singh P. W. 1 and Ram Naresh Singh left for market for purchasing some medicines and other items of daily use on a motorcycle which was driven by Ram Naresh Singh while the informant Brijnath Singh P. W. 1 was riding on the pillion. When they reached near the gate of E.Hill company on the western side, Ram Naresh Singh stopped the motorcycle as he wanted to purchase betel. While Ram Naresh Singh remained sitting on the motorcycle with both his feet grounded, Brijnath Singh P. W. 1 got down from the motorcycle and started walking towards the betel shop located on the opposite side of the road. P. W. 1 Brijnath Singh had hardly reached the betel shop, (A1) Gulab Chand who was standing behind a neem tree and who was already known to P. W. 1 Brijnath Singh, exhorted his son (A2) Ghanshyam by shouting loudly "maar do ram naresh sale ko jan se ab kya dekhate ho" and although the informant neither knew his son's name nor he had met him before, he claimed to know him by face, on which Ghanshyam (A2) who was armed with a country made pistol came towards Ram Naresh Singh and fired a shot with his country made pistol at Ram Naresh Singh from behind. The shot so fired by Ghanshyam (A2) hit Ram Naresh Singh on his back and he cried out "bachao ghanshyam ne mujhe maar diya" and on hearing his cry, P. W. 1 Brijnath Singh, P. W. 2 Sheo Bachan Singh and Vindhyachal who were sitting in front of the betel shop ran towards the place of occurrence and tried to apprehend (A1) Gulab Chand and (A2) Ghanshyam but since (A2) Ghanshyam fired another shot, terrified, they did not proceed any further with their pursuit as a result (A1) Gulab Chand and (A2) Ghanshyam made good their escape. Informant Brijnath Singh P. W. 1 and other persons ran towards Ram Naresh Singh and when they came near him; they found Ram Naresh Singh had fallen on the ground along with the motorcycle with one of his leg under the motorcycle and the other over it and he had died on the spot. Thereafter, P. W. 1 Brijnath Singh went to P. S. Aurai and gave a written report of the occurrence Ext. Ka1 which was registered as case crime no. 159, under Section 302 IPC at P. S. Aurai, District Varanasi against the appellants (A1) Gulab Chand and (A2) Ghanshyam. P. W. 1 Brijnath Singh had also stated in the written report that the place of occurrence was illuminated from the light of the three lit electric rods installed in front of the gate of E.Hill company and electric bulbs fitted on the boundary wall of the company. On the basis of the written report Ext. Ka1, chek FIR Ext. Ka2 and relevant G.D. Entry vide rapat no. 29 at 20:30 hours on 20.9.1979 Ext. Ka3 were prepared by P. W. 4 Bahadur Ram. Inquest report Ext. Ka7 and other related documents, letters addressed to the Medical Officer, In-charge, Gyanpur and R.I., challan lash, photo lash Ext. Ka11 to Ext. Ka14 were prepared by I.O. after holding the inquest. The dead body of the deceased was dispatched to the mortuary for conducting postmortem. The postmortem on the dead body of the deceased Ram Naresh Singh was conducted by P. W. 5 Dr. J. S. Pawar who noted following ante mortem injuries on the dead body of Ram Naresh Singh : Five circular gun shot wounds of entry in an area of 5 cm x 3.5 cm. Each wound measured one centimetre in diameter on upper inter-scapular region of back. No burning or charring present around the wounds. Direction forwards and upwards. According to P. W. 5 Dr. J.S. Pawar who had conducted postmortem and prepared the postmortem report Ext. Ka6, the death was as a result of bleeding due to gun shot wounds.
(3.) He also seized an empty cartridge and two tikulis and one cartridge from the spot and prepared the recovery memo Ext. Ka8. The motorcycle which was lying near the dead body of Ram Naresh Singh was also taken into custody by him and given it into the supurdgi of the elder brother of deceased Ram Naresh Singh, P. W. 1 Brijnath Singh, and it's recovery memo Ext. Ka9 was prepared, Bloodstained and plain earth were also recovered from the place of incident and recovery memo Ext. Ka10 was prepared by the I.O. on the spot. Memos of recovery of towel, pair of shoes worn by the deceased Ram Naresh Singh at the time of his death and a lungi were also prepared on the spot and marked as material Ext. 11 to Ext. 14.;