SHIVNATH AWASTHI Vs. STATE OF U.P.

JUDGEMENT

(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 dtd. 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 Ss. 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 Sec. 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 Sec. 302 IPC; 10 years rigorous imprisonment with fine of Rs.5,000.00 and a default sentence of 5 months rigorous imprisonment under sec. 307 IPC and 5 years rigorous imprisonment with fine of Rs.5,000.00 and a default sentence of 5 months rigorous imprisonment under sec. 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.100.00. 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 (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 metallic density on right chest region. The supplementary report of Rajveer Singh (Ext Ka-17) discloses that the injures were simple in nature caused by fire arm.