(Delivered by Hon'ble Krishna Murari, J.)

This criminal appeal has been filed against the judgement and order dated 21.05.1983 passed by IVth Additional Sessions Judge, Mirzapur in Sessions Trial No. 26 of 1981 convicting and sentencing the accused-appellant Mithai Lal under Section 302 I.P.C. to imprisonment for life and accused-appellant Prem Bahadur under Section 302/34 I.P.C. to imprisonment for life. Further, accused-appellants Mithai Lal and Prem Bahadur have also been convicted and sentenced under Section 323/34 I.P.C. to undergo three months rigorous imprisonment.

During pendency of the appeal accused-appellant Mithai Lal S/o Sarju had died and Criminal Appeal No. 1256 of 1983 filed by him, has been abated vide order dated 02.09.2016.

Facts of the Case:-

Prosecution story in brief is that on 28.12.1980 at about 08:00 P.M. Ram Jiyawan S/o Ram Adhin had gone to Auri Morh where accused-appellants Mithai Lal and Prem Bahadur had assaulted him. After this incident Ram Jiyawan came in the village and went to the house of the complainant Avadh Bihari S/o Jujhan,where Krishan Bihari (brother of the complainant), Ganga Ram S/o Ram Dulare and Jawahar Lal S/o Subedar were also sitting. Ram Jiyawan narrated the incident of scuffle (Marpeet) and the complainant along with others went to make protest at the residence of accused-appellants Mithai Lal and Prem Bahadur. At about 09:00 P.M., when they reached to the house of Mithai Lal, a gas lantern was alighted at the door and both accused were present there. When they were enquired by the complainant and others as to why they had assaulted innocent Ram Jiyawan both accused started assaulting with lathies as a result of which Jawahar Lal and Ram Jiyawan sustained injuries. Further, at that point of time accused-appellant Prem Bahadur instigated Mithai Lal and said for what purpose he was having Tamancha. On his exhortation Mithai Lal at once took out Tamancha from his room and opened fire on Krishan Bihari as a result of which he sustained fire arm injuries and fell down on the spot. The complainant and his companion tried to apprehend the accused persons but they ran away saying that if anyone followed them then they would be shot dead. It is also alleged in the F.I.R. that some of the pellets of Tamancha also caused injuries to Ganga Ram and further Krishan Bihari died on the way at Anpara Market when he was being taken to Renu Sagar Hospital for medical treatment. Thereafter, complainant Avadh Bihari sent the dead body of his brother to Police Chauki-Renu Sagar through Ram Jiyawan, Ganga Ram and Jawahar Lal and he went to the Police Station- Pipari for lodging the F.I.R. of the said incident. On the basis of written report Ex. KA1, chik F.I.R. Ex. KA2 was prepared and the same was registered as Case Crime No. 450, under Section 302, 307, 323 I.P.C. and its entry was made in the G.D. Copy of the G. D. is Ex. KA3.

Analysis of Evidence:-

Investigation of the case was conducted by Station Officer G. N. Pandey. Inquest report Ex. KA11 of the dead body and necessary documents like photolash Ex. KA14 and preserving seal Ex. KA12 were prepared. Thereafter, the sealed dead body was sent for post-mortem examination through constable Jagdish Singh and Ram Narayan Dubey alongwith necessary documents, prepared on the spot, to the Medical Officer, Incharge P. H. C., Dudhi. The post-mortem examination of the deceased Krishan Bihari was conducted by Dr. Mahendra Kumar Singh who found the following ante-mortem injuries on the dead body of the deceased Krishan Bihari:-

1. Gunshot wound of entry round in shape.25 cm in diameter going posteriorly and right side on the left abdominal wall near the midline of the abdomen and lower part. Bullet taken out from the vertebral. No wound of exit present laceration of abdominal organs blader bone.

2. Gunshot wound.5 cm X.25 cm oval in shape on the upper part of the left thigh, front-part edges averted, going down wards, inwards to the middle of the left thig