Shalma, J. - (1.)- This criminal jail appeal has been preferred by accused Salim, against the judgment of the Additional Sessions Judge, Jhalawar, dated 28th May, 1977, whereby, he has been found guilty under Section 302, IPC, and sentenced to imprisonment for life; and to pay a tine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.
(2.)As this is a jail appeal and no advocate was engaged on behalf of the accused-appellant, Miss Rajesh Kandwal advocate, was appointed as amicus curiae in this case, by this Court, to argue the case on behalf of the accused-appellant.
(3.)The prosecution story in brief is, that on 2nd November, 1976, at about 4 PM, Amarsingh and Gumansingh resident of Gagrani Bardi were grazing their cows. Poorsingh, son of Ghisu, resident of Dhabla, was working m his cotton. field. Amarsingh PW 8 and Mansingh PW 10 were also grazing their cattle there on the Pahadi (hillocks) A cow of Amarsingh PW 8, entered into the field of Bhanwersingh, son of Madhosingh, resident of Dhabla. The residents of Village-Dhabla, for taking care of their fields, had engaged Yasinkhan, the father of accused Salim, as Chowkidar. When the cow of Amarsingh entered into the field of the villagers of Dhabla village, accused Salim and Sharif came armed with gun and lathi from the cotton-field of Poorsingh. Accused Salim was having gun in his hand and Sharif was armed with a lathi. Amarsingh took out his cow from the field. At this, Sharif inflicted a lathi blow to Amarsingh. Deceased Poorsingh, who was also standing nearby, asked Salim not to beat him and told that if any damage had been caused to him that would be compensated. Poorsingh tried to rescue Amarsingh from accused Salim and Sharif. At this, Salim, who had a gun in his hand, fired it at the chest of Poorsingh. The shot bit Poorsingh at his chest. He fell down and died at the spot. Accused Salim and Sharif ran away from the place of the occurrence. Maansingh came to the village and informed Motilal, who is the brother of deceased Poorsingh, of the incident Motilal came to the spot and saw there that Poorsingh was lying dead. He had been hit at the chest and blood was coming out. He lodged a report at Police Station - Pidawa of the incident, which is Ex. P.1. The police registered a case under Section 302/34, Indian Penal Code against the accused persons. The Station House Officer of that Police station, went to the spot and inspected the site and prepared a site-plan, Ex. P. 11. An inquest report of the dead body of Poorsingh, was also prepared, which is Ex.P. 12 Halat-Moka, Ex. P. 13 was also prepared. While Ex. P. 14 is the Panchnama of the dead body Of Poorsingh. Blood-stained earth and plain earth were also taken into possession from the spot, vide memo, Ex. P. 15. A post-mortem examination of the dead body of Poorsingh deceased was conducted by Dr. Bhulauath, and the post-mortem report is Ex. P. 5. The doctor sent the clothes of the deceased duly sealed 10 the Station House Officer, Police Station. Pidawa and they were received vide memo Ex. P. 4. Accused Salim was arrested vide memo, Ex. P. 17; and accused Sharif was arrested vide memo, Ex. P. 18. While in custody, accused Salim gave information to get recovered a gun. This information was reduced into writing, which is Ex. P. 19. On the basis of this information Ex. P. 19 and at the instance of accused Salim the gun was recovered vide memo, Ex. P. 16. Accused Sharif also gave information for the recovery of lathi and on the basis of this information, and at his instance, the lathi was also recovered. The gun is article -10. An identification test for the gun was also done, and the identification-memo is Ex. P. 2. After usual investigation, the police submitted a challan against the accused persons, Salim and Sharif, and they were committed to the court of Additional Session Judge, Jhalawar, for trial.