Pritinker Diwaker, J. - (1.) The present criminal appeal arises out of impugned judgement and order dated 09.08.2007 passed by the learned Additional Sessions Judge, Court No.2, Kanpur Nagar in Sessions Trial No. 699 of 2004 (State vs. Gopesh Kumar Batham @ Guddu), convicting accused-appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life with a fine of Rs. 4,000/-, in default thereof, four months additional imprisonment, and further convicting accused-appellant in Sessions Trial No. 700 of 2004 under Section 25 of the Arms Act and sentencing him to undergo two years imprisonment, with a fine of Rs. 2,000/-, in default thereof, two months additional imprisonment.
(2.) In the present case, name of the deceased is Virendra Kumar who used to run his 'chat thela' ([1]). In the night intervening 28/29.02.2004, when after reaching back to his home, deceased and his wife were unloading material from thela () and the first informant was standing at the door, accused-appellant Gopesh Kumar Batham @ Guddu reached there and demanded chat from deceased. In reply, it was told by deceased that he does not have any chat material now and therefore he cannot supply the same. The appellant got annoyed with the reply of deceased and started abusing him, which was objected by the deceased. Further case of the prosecution is that accused-appellant took out his country made pistol, which he had kept in his pant packet, and caused single gunshot injury to the deceased on his stomach. The injured was taken to hospital, he was medically examined, vide Ex.Ka-3, by Dr. N.C Yadav, Medical College, Kanpur, however, during the course of treatment, he succumbed to his injuries.
(3.) Inquest on the dead body of deceased was conducted on 29.02.2004, vide Ex.Ka.2/9, and the body was sent for post-mortem, which was conducted on 1.3.2004, vide Ex. Ka. 2, by Dr. Pradeep Kumar (PW-4). The Autopsy Surgeon has noticed following injuries on the body of the deceased:- 1. Stitch wound 3 cm long with 3 stitches present on Rt. Side of lower neck 1 cm above clavicle with cannula present. 2Stitch wound 29 cm long with 21 stitches present on front of abdomen 3 cm below xiphi sternum. 3Stitch wound 3 cm long with 1 stitch right side abdomen, 5 cm lateral to umbilicus. Plastic to be drain present surgical colostomy present. 4Stitch wound 1 cm long with 1 stitch on right side abdomen, 3 cm above injury No. (3). 5.Stitch wound 2 cm long with 1 stitch on left side abdomen, 6 cm lateral to umbilicus. The cause of death of deceased was 'hemorrhage and shock' due to ante-mortem injuries.;