SOM NATH Vs. STATE OF U P

JUDGEMENT

(1.) THE present appeal has been filed on behalf of Som Nath against the judgment and order dated 1 -11 -1980 passed by III Additional Sessions Judge, Kanpur, in S.T. No. 318 of 1978, convicting the appellant Som Nath for the offence under Section 302 Indian Penal Code and sentencing him to undergo life imprisonment.

(2.) THE prosecution story as set forth in the First Information Report and in the statement of complainant is that on 16 -6 -1977 at about 7.00 a.m. complainant Pyare Lal, deceased Nain Singh and one Ganesh were taking tea at the shop of one Prem Prakash in Mohalla Jagai Purwa, police station Cantonment, Kanpur. After finishing the tea, the complainant and others were smoking cigarettes. Then appellant Som Nath and one Rikhi (he was acquitted by the Session Judge) appeared on the scene. Rikhi (non -appellant) exhorted, stating that enemy was sitting and be killed. On his exhortation appellant Som Nath fired on deceased Nain Singh, who fell on the ground. The complainant Pyare Lal, Ganesh, Prem, Kunwar Pal Singh and other shopkeepers challenged the appellant, but the appellant and his associates Rikhi ran away brandishing country made pistol. No one tried to chase them out of fear. The complainant and the two wives of deceased Nain Singh and Ganesh brought taxi/auto rickshaw and were taking deceased to K.P.M. Hospital, Kanpur but the railway crossing near Murray Company was closed. The auto had to stop. The deceased died there. The motive of the offence is alleged that Som Nath planned illicit relations with one Sheela and Nain Singh -deceased also developed illicit relations with her. Sheela was more affectionate to Som Nath and it was not liked by deceased Nain Singh. Deceased Nain Singh created hindrance in her visit to the house of Som Nath and with this motive Son Nath appellant committed this offence.

(3.) THE prosecution examined two eye -witnesses, namely, Pyare Lal complainant P.W. 1 and Prem Prakash P.W. 3, the tea -shopkeeper. P.W. 2 was then Head Moharrir of Police Station Cantt. Kanpur, who prepared the chik report (Exhibit Ka -2) and made its entry in General Diary. Dr. Satish Chandra P.W. 4 conducted the post -mortem of the deceased and found following one injury: Gun shot wound of entry nearby circular in out line of 3 cm diameter, chest and abdominal cavity deep placed on half of the back 3 cm below the right scapula and 9 cm to the right of the middle line of the back, margins inverted and blackening and scorching present over edges and around the wound. On internal examination, the doctor found the stomach empty and small intestine and large intestine half full. In the opinion of the doctor, the injury was sufficient in the ordinary course of nature to cause death.