BALA KRISHNA NARAYANA,J. - (1.)Heard Sri Nanhe Lal Tripathi, learned counsel for the appellant and Kumari Meena, learned AGA for the State.
(2.)The accused-appellant Raj Bahadur, upon being convicted and sentenced to imprisonment for life under section 302 I.P.C. by learned Special Judge (E.C. Act), Farrukhabad in S.T. No. 83 of 1988 vide his judgement and order dated 11.05.1989 has preferred this appeal before this Court.
(3.)The prosecution story is briefly stated as hereunder:-
One Pehalwan Singh Yadav, resident of village Nagla Tej, within the circle of P.S.- Saurikh, District-Farrukhabad had four sons, namely Balak Ram, Ram Sagar, Ajit Singh and Raj Bahadur (accused) Smt. Marg Shree, informant of this case is widow of Balak Ram, who died leaving behind his two sons, Akhilesh and Rajesh Singh (deceased). P.W.2 Smt. Shree Devi is widow of Ajit Singh. The prosecution story further is that there was an ancestral house of accused-appellant Raj Bahadur which had been partitioned between it's co-sharers about 9 or 10 years back and all the co-sharers were living separately in their respective portions which were allotted to them under the oral partition. P.W.1 informant Smt. Marg Shree, widow of Balak Ram and P.W.2 Shree Devi, widow of Ajit Singh, were living jointly in the portions of the house which had fallen to their share under the private partition. It is further alleged that there was a Kotha which was in the possession of P.W.1 informant Smt. Marg Shree and P.W.2 Smt. Shree Devi of which accused-appellant Raj Bahadur wanted to take forcible possession. Accused-appellant Raj Bahadur was a retired military man and he had a licensee gun. Few days prior to the occurrence, the accused-appellant Raj Bahadur started claiming that he was the owner of the disputed Kotha and tried to take forcible possession thereof. However, P.W.1 informant Smt. Marg Shree, with the help of her sons, did allow the accused to succeed in his evil design. It is alleged that on the fateful day i.e. 28.06.1987 at about 12 noon, accused-appellant Raj Bahadur broke open the lock of the Kotha on which P.W.1 informant Smt. Marg Shree objected. However, the accused did listen to her and instead slapped P.W.1 informant Smt. Marg Shree. P.W.1 informant Smt. Marg Shree thereafter sent information of the incident to her son Rajesh (deceased) who was working in the field through her younger son Akhilesh, on which Rajesh rushed to his house and put another lock on the door of the Kotha in place of the one which was broken by the accused. Rajesh also removed the bundle of arhar wood which was stashed by the accused by the side of the wall of the kotha on which accused-appellant Raj Bahadur reached there and asked Rajesh to remove the bundle of arhar wood to which Rajesh did agree and asserted that the wood of arhar shall be allowed to be kept by the side of his wall. The accused-appellant Raj Bahadur thereafter went inside his room, and returned with his loaded licensee gun and immediately fired at Rajesh, as a result of which Rajesh (deceased) sustained fire arm injuries and died instantaneously. Besides P.W.1 Smt. Marg Shree, mother of Rajesh (deceased), the occurrence was witnessed by Akhilesh, youngest son of P.W.1 informant Smt. Marg Shree, P.W.2 Smt. Shree Devi and Narendra, son of Smt. Shree Devi. The accused ran away with his gun. Other villagers also reached the scene of occurrence. Thereafter PW1 Smt. Marg Shree got the written report of the incident (Ext.Ka.1) scribed by one Dipti and then she went to the police station and lodged the same there. On the basis of (Ext.Ka.1), check report (Ext.Ka.4) was prepared and a case against the accused was registered vide G.D. Entry copy (Ext.Ka.5). The Investigating Officer of the case P.W.4 S.I. Sri Sunder Pal Singh reached the place of occurrence. He recorded the statements of the witnesses, prepared the site plan (Ext.Ka.6) and also took the plain and blood stained earth from the scene of occurrence vide recovery memo (Ext.Ka.7) and sealed the same in two separate containers. He also seized broken lock vide recovery memo (Ext.Ka.8). The Investigating Officer after completing the inquest, prepared the Panchayatnama of the dead body of deceased Rajesh (Ext.Ka.10) and other papers namely challan lash (Ext.Ka.11) and photo lash (Ext.Ka.12). The dead body of Rajesh was sent for postmortem to District Hospital, Fatehgarh. The postmortem was conducted vide postmortem report (Ext. Ka.3). After completing the investigation the Investigating Officer submitted charge-sheet against the accused under Section 302 IPC (Ext. Ka-13) before Chief Judicial Magistrate, Farrukhabad.