Pritinker Diwaker, J. - (1.) This appeal arises out of impugned judgment and order dated 11.2.1987 passed by IV Additional Sessions Judge, Bulandshahr in Sessions Trial No.471 of 1985, convicting the appellant under Sections 302 and 452 of IPC and sentencing him to undergo imprisonment for life and two years rigorous imprisonment respectively.
(2.) As per prosecution case, in the night intervening 18/19.7.1985, accused appellant Birju, acquitted accused Rame and two other persons entered the house of deceased-Kunvar Pal and caused gunshot injury to him. Injured was immediately taken to the Government Hospital, Bulandshahr from where, considering his serious condition, he was referred to All India Institute of Medical Sciences, (AIIMS) New Delhi where, during treatment, he died on 24.7.1985. In the meanwhile, on 21.7.1985, on the basis of written report Ex.Ka.1 lodged by (PW-1) Fatah Singh, FIR Ex. Ka.16 was registered against the accused appellant, acquitted accused Rame and two other unknown persons under Sections 452 and 307 of IPC. Further case of the prosecution is that prior to the incident, there was some quarrel between the appellant and the deceased over a dispute relating to one wall as a result of which, the deceased was done to death by the accused appellant. The incident is said to have been witnessed by (PW-2) Smt. Surajwati, wife of the deceased in the light of earthen lamp (Lantern) which was burning in the house of the deceased. Upon hearing the cries of Smt. Surajwati and the sound of gunshot, (PW-1) Fatah Singh, who was incidentally sleeping inside the house of the deceased, rushed to the place of occurrence and saw accused persons fleeing from the spot. (PW-1) Fatah Singh and (PW-2) Smt. Surajwati both have identified appellant Birju, to be one of the assailants.
(3.) After the death of the deceased, inquest Ex.Ka.11 was conducted on his body on 24.7.1985 and the body was sent for postmortem which was conducted on the same day by (PW-4) Dr Rohitashwa, vide Ex.Ka.7. As per Autopsy Surgeon, following ante-mortem injuries were found on the body of deceased Kunvar Pal: "1. Infected stitched wound of semi circular shape present over of tempo parietal region 23.0 cm in length starting from tragus of ear to parietal eminence. 2. Infected abraded contusion 1.5 cm above (Rt) eyebrow with healing margin of 3 x 1.0 cm size in frontal region. 3. Tracheotomy wound of 2 x 1.0 cm size in middle with 2 stitches at lower end in vertical present 3.0 cm above the suprasternal Notch. Scalp - as mentioned & hoematoma under mentioned injuries (1) & (2) Skull - linear fracture in left middle cranial fosa extending upto left mandibular joint & maxillary bone hole of 5.0 cm diameter at tempo frontal (L) region with destruction of meninges and brain tissues. Brain - extradural hoematoma over left frontal lobe on anterio superior surface laceration involving left front of tempo-parietal region of 13 x 7 x 0.5 cm size with contusion of variable size at places, two pellets found in brain tissue & are in muscle tissue." Cause of death of the deceased was due to coma as a result of ante mortem head injury, likely to be caused by gunshot injury. Injury No.(1) is sufficient to cause death in ordinary course of nature.;