DIWAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 22.2.1979 passed by the Ilnd Additional Sessions Judge, Moradabrd passed in sessions trial No. 335 of 1978 where in the appellants have been convicted under Section 302,1.P.C. and awarded the imprisonment for life, under Section 323/34,1.P.C. R.I. for six months and under Section 307/34,1.P.C. R.I. for four years. However, all the sentences have been directed to run concurrently.

(2.) ACCORDING to the prosecution, the case is that on 20/21.12.77 at about midnight the appellants along with two other co-accused namely, Rajendra Singh and Badam Singh all armed with single barrel guns entered the house of injured complainant, Ali Mohammad, P.W. 2 where the complainant was sleeping along with his father Niadar Bukhsh, deceased, aged about 75 years and his son, Zaheer Ahmad. The said three persons were sleeping on the sugar cane leaves and there was sufficient light of the lantern (Ext. 2) inside the above said premises at that time. All the said three persons belonging to the complainant side were lying covered with separate quilts. After hearing the noise of the foot- steps of the above said accused persons, complainant Ali Mohammad, P.W. 2 had awaken. Appellant No. 2 Mahendra Singh fired a shot on the person of the deceased Niadar Bukhsh hitting him in his abdomen leaving a clear mark on the quilt which the deceased had put on. Ali Mohammad, P.W. 2 immediately rushed towards Mahendra Singh, appellant No. 2 and caught hold of him by the cloths. Accused, Mahendra Singh dragged the complainant Ali Mohammad, P.W. 2 and took him out of the said part of the premises causing him injuries on the knees. At the instigation of co-accused, Sadam Singh, appellant, Diwan Singh fired a shot on complainant, Ali Mohammad, P.W. 2. However, the said shot missed its target and hit the wall of the said premises. Appellant Mahendra Singh got himself released from the complainant. After hearing the cries of the complainant, Ali Mohammad and his son Zaheer Ahmad, witnesses Sharif Ahmad, P.W. 4 Sukhan, P.W. 5 and other persons reached the place of occurrence and on being challenged by the said witnesses the accused persons fired their guns in the air and escaped from that place. Deceased Niadar Bukhsh had died spontaneously by the gunshot wounds caused by the appellant, Mahendra Singh.

(3.) THE dead body was recovered by the Investigating Officer, K. P. Gupta, S.I. who could not be examined by the prosecution, because of his death at the time of trial, conducted the preliminary investigation of the case, took the dead body of the deceased Niadar Bukhsh in his custody and sent it for post mortem examination in a sealed cover. Dr. B. K. Sinha, P.W. 12 conducted the post mortem examination of the dead body of the deceased Niadar Bukhsh on 21.12.1977 at about 4 p.m. and found the following ante mortem injuries on the person of the deceased Niadar Bukhsh :