By the Court.—This appeal questions the correctness of the conviction and sentencing of the appellant under Section 302 read with Section 34 I.P.C. and under Section 506 (2) of the I.P.C. arising out of Session Trial No. 68 of 2006 in Case Crime No. 75 of 2005, P.S. Chakiya, District Chandauli.

2. In addition thereto, the appellant has also been sentenced to pay a fine of Rs. 25, 000/- and Rs. 2,000/- and in default thereof to undergo further imprisonment of two years and six months, respectively. The appellant has, however, been acquitted of the offence under Section 504 I.P.C.

3. The incident is of 1st of August, 2005. The written report and the First Information Report which were lodged on the same day at about 9:45 a.m. recite that at about 8:00 a.m. in the morning one Buddhesh Misra, the accused who was stated to have been armed with a country made pistol alongwith the appellant Nand Lal Misra, who is the uncle of the said accused and was holding a stick, assaulted the deceased Hirdaynarayan Upadhyay and caused a gun shot injury resulting in the instantaneous death of the deceased. The F.I.R. states that both the assailants came together for which an alleged motive had been attributed relating to a dispute of family property inherited by the maternal grand father of the informant. The said motive had given rise to differences on the fatal day resulting in the death of Hirdaynarayan Upadhyay. The accused abused the deceased and jumped from their side of the premises into the Courtyard where the deceased was sitting on a cot. The deceased was chased and the appellant Nand Lal Misra is alleged to have first assaulted the deceased with his stick on his left knee where after he fell down and other accused Buddhesh Misra then shot him in the neck. The deceased instantly died and the accused fled away from the scene exhorting the other inmates including the witnesses who have deposed on behalf of the prosecution. The first informant Anil Kumar Upadhyay, who is the son of the deceased promptly lodged the FIR and has been examined as P.W.-1.

4. After the report was lodged the investigation came into action and prepared a inquest report witnessed by five persons including Jang Bahadur Singh. The inquest report is said to have begun at about 11:30 a.m. and completed at about 12.45 p.m. on the same day. The opinion expressed in the said inquest report is that the death was caused due to gun shot injury. While describing the injuries, the last sentence of the description of the injuries recites of an assaulted injury below the knee presumably caused by a stick.

5. The body was sent for post-mortem that was conducted on the next day, i.e., 2nd August 2005. The autopsy was carried out by Dr. Nand Lal Pandey, who has been examined as P.W.-5. The post-mortem report indicates a single injury of a gun shot wound that has been described to be the cause of death. There is no description of any other external injury in the post-mortem report. This is to be noted inasmuch as against the inquest report, which had also noted an assault injury by a stick below the knee, is not indicated in the post-mortem report.

6. The charge-sheet was filed against both the accused but Buddhesh Misra remained an absconder and during trial it was disclosed that Buddhesh had been killed in a police encounter.

7. The trial proceeded against the appellant. The son of the deceased Anil Kumar Upadhyay was examined as P.W.-1. His brother’s wife Smt. Anjani Upadhyay was examined as P.W.-2, who are the witnesses of fact stated to have witnessed the entire incident on the fatal day. Jang Bahadur Singh one of the witnesses to the inquest report was examined as P.W.-3. Head Constable Akbar Khan, who is the scribe of the F.I.R., has been examined as P.W.-4. The Doctor, who conducted the autopsy and prepared the post-mortem report, namely, Dr. Nand Lal Pandey deposed as P.W.-5. The Investigating Officer, Sri Purnmasi Kanaujia deposed as P.W.-6. Constable Viresh Datt T