Saurabh Shyam Shamshery, J. - (1.) Heard learned counsel for the parties and perused the record.
(2.) The appellant-accused has called in question the judgment and order dated 19.3.1983 whereby the learned IV Additional District and Sessions Judge, Kanpur has convicted the appellant-accused in S.T. No.58 of 1982 (State vs. Amar Singh and others) for the offence under Section 302 IPC and sentenced to life imprisonment. The rest of three co-accused were however, acquitted.
(3.) The background aspect so far as relevant for the present appeal could be noticed in brief as follows :- (i) PW-1 - Sunil Dutt, minor son of deceased submitted a written complaint to the effect that on 12.10.1981, he along with his sister namely Sunita Verma (PW-2), minor daughter of the deceased were going on two separate bicycles to their school at 'about 9 a.m. along with their father (since deceased) who was teacher by profession. When they reached near the patri of Nehar, appellant-accused along with other three co-accused, who were hiding in the bushes, suddenly came out and attacked his father. The appellant-accused and co-accused Kripal Singh were armed with pistol and other two co-accused namely Mardan Singh and Sultan Singh were armed with lathi. The father of appellant (since deceased) got down from the bicycle. PW-1 and PW-2 ran towards one side and hid themselves. Both PW-1 and PW-2 witnessed the occurrence wherein, appellant-accused fired the deceased with fire arm on the right side of his chest. Co-accused Kripal Singh also fired from country made pistol on the left cheek of the deceased. Due to assault, father of PW-1 fell down and other co-accused Mardan Singh and Sultan Singh, who were armed with lathi assaulted the deceased. Seeing the occurrence, PW-1 and PW-2 started crying. At that time, their uncle - Lala Ram s/o Shiv Pal, Nathu Ram s/o Shiv Ram and Santosh Kumar (PW-3) s/o Govind Prasad of the village came to the spot. It was further mentioned in the written complaint that earlier there was some dispute between the deceased and appellant-accused regarding the cutting of drain and an FIR.was lodged against the appellant-accused by the deceased and due to this enmity, accused persons killed the deceased. (ii) The FIR.was lodged at about 3:15 p.m. on 12.10.1981 i.e. on the day of occurrence. The distance between the place of occurrence and the police station was ten miles (about 16 km). (iii) The prosecution in order to bring the guilt of accused persons home, examined the following witnesses :- Sunil Dutt (PW-1), Sunita Verma (PW-2), Santosh Kumar (PW-3), Jagmohan Lal (PW-4), Ram Sewak Singh (PW-5), Babu Ram (PW-6), Mahendra Singh (PW-7), Suraj Prasad Agnohotri (PW-8), Mahadeo Singh (PW-9), Dr. P.C. Chaurasia (PW-10). (iv) PW-1 is the minor son of deceased and was around 14 years old, when the incident took place, his evidence was recorded on 27.7.1982. In his testimony, he repeated the version as mentioned in the written complaint. PW-1 was subjected to detail cross-examination. (v) PW-2, daughter of the deceased was around 15 years of age, also supported the testimony of PW-1. She was also cross-examined in detail. Both PW-1 and PW-2 were eye witnesses to the occurrence. (vi) PW-3 - Santosh Kumar has stated in his testimony that on 12.1.1981 around 9 a.m., he heard the sound of firing and when he came near the place of occurrence, which was at a distance of 100 steps, he saw the accused Amar Singh and co-accused Kripal Singh having armed with country made pistol. The other co-accused namely Mardan Singh and Sultan Singh were assaulting the deceased with lathis at that time. On chasing, the accused ran away. He was also cross-examined in detail. (vii) PW-5 - Ram Sewak Singh - Sub-Inspector, who was Investigating Officer of the case, stated in his testimony that he recorded the written complaint of PW.1 on 12.10.1981 and thereafter, he proceeded to the place of occurrence, however due to night, no further investigation could take place. On the next day i.e. 13.10.1981, panchayatnama was prepared. The body of the deceased was seized in presence of the witnesses. Site plan was prepared, sample of plain as well as blood stained earth was taken. This witness was also cross-examined in detail. (viii) PW-8 - Suraj Prasad Agnihotri, who was appointed as Sub-Deputy Inspector of Schools, was examined for the purpose of temporary transfer of deceased. (ix) PW-10 - Dr. P.C. Chaurasia, who conducted the post-mortem of the deceased, was also examined. The following injuries were found on the body of deceased :- (i) Gun shot wound 1 c.m x 1 c.m. x chest cavity deep on right side of chest in its outer aspect 6 c.m. below the right axilla and 6 c.m. outer to the right nipple in inter-coastal space between 5th and 6th rib. Blacking and charing were not present. Margins were inverted. (ii) Lacerated wound 2.5 c.m. x 1.5 c.m. x muscle deep or inner aspect of right upper arm 5.6 c.m. below the centre of axilla. The Doctor had opined that the death of deceased took place about 2 or 21/2 days before the post-mortem and death was caused due to shock and hemorrhage as a result of the fire arm injuries. This witness was also cross-examined.;