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AFR

Court No. - 45

Case :- CRIMINAL APPEAL No. - 824 of 2007

Appellant :- Shivnath Awasthi

Respondent :- State of U.P.

Counsel for Appellant :- P.C. Sharma, Himanshu Upadhyay, Manish

Jaiswal, P.S. Sharma, V.K.Dixit

Counsel for Respondent :- Govt. Advocate

Hon'ble Manoj Misra,J.

Hon'ble Sameer Jain,J.

1.

We have heard Sri Manish Jaiswal, learned counsel, appointed

by the High Court Legal Services to represent the appellant who is in

jail; Sri J.K. Upadhyay and Sri H.M.B. Sinha, learned AGA for the

State and have perused the record.

2.

This appeal has been filed against the judgement and order dated

10.1.2007 passed by Additional Session Judge, Court No. 3,

Shahjanpur in Sessions Trial No. 971 of 2005, connected with

Sessions Trial No. 972 of 2005, thereby convicting the appellant under

Sections 302 and 307 IPC (in Sessions Trial No. 971 of 2005 arising

out of case crime No. 169 of 2005, Police Station-Ram Chandra

Mission, Shahjahanpur) and under Section 27 of Arms Act ( in

connected Sessions Trial No. 972 of 2005 arising out of case crime

No. 170 of 2005, Police Station-Ram Chandra Mission, Shahjahanpur)

and sentencing him to imprisonment for life under Section 302 IPC; 10

years rigorous imprisonment with fine of Rs. 5,000/- and a default

sentence of 5 months rigorous imprisonment under section 307 IPC

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and 5 years rigorous imprisonment with fine of Rs. 5,000/- and a

default sentence of 5 months rigorous imprisonment under section 27

Arms Act; with a direction that all the sentences shall run

concurrently.

Introductory facts

3.

Prosecution case in a nutshell, which was instituted on a written

report (Ex. Ka-1) lodged by PW 1 (brother of deceased Nanhe @ Man

Singh) of which chik FIR (Ex- Ka.14) was prepared by PW-6, is that

informant's brother (the deceased) was a tenant of Shiv Nath Awasthi

(accused-appellant). The deceased resided in that tenanted

accommodation with his family. On 6.7.2005, informant's nephew,

namely, Rajveer @ Raju (PW 2) (the injured) was requested by the

accused-appellant to increase the rent for the accommodation by Rs.

100/-. On that request, PW 2 told the accused-appellant that he would

have to consult his mother for the demanded raise in the rent. On this,

the accused - appellant went inside his house, brought his licensed gun

and, at about 6:00 pm, fired a shot at PW 2 which struck him on the

side of his chest and hand. On being struck by the shot, PW-2 ran

towards the house of Bhagwan Das (not examined) and fell there. On

hearing the gun shot, the informant and others arrived. The accused

appellant also came there with his licensed gun and fired a shot at Man

Singh @ Nanhe (the deceased), which resulted in his death. By

alleging that the body of the deceased, who died at the spot, and the

injured are lying at the spot, FIR was lodged by PW 1 on 6.7.2005 at

18:25 hours at P.S. Ram Chandra Mission, Shahjahanpur, which is at a

distance of 1 km from the spot. The injured Rajveer @ Raju (PW 2)

was examined for his injuries at about 7:20 pm by Dr. S.K. Dhruv

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(PW-7) on 6.7.2005 itself. Injury report (Ext. Ka 16) of Rajveer Singh

reveals: (i) multiple gun shot wound on right arm in an area of 17 x 6

cm and right elbow joint on redial (sic) aspect with traumatic swelling

in an area 12 x 6 cm on right arm and elbow joint; (ii) multiple gun

shot wound in an area of 13 x 4 cm on right side of chest below right

nipple; (iii) abrasion 1.8 x 0.6 cm anterior of right side of chest (round

in shape) 4 cm below top of right shoulder joint. Injuries (i) and (ii)

were kept under observation and x-ray of right arm and chest was

advised. Injury (iii) was found simple in nature caused by hard and

blunt object. Duration of the injuries was found fresh. X-ray report

(Ex. Ka-18) of Rajveer Singh discloses presence of multiple small

radio opaque shadow of metallic density on right shoulder including

right arm and elbow and three small radio opaque shadow of