SUBHASH CHAND,J. - (1.) In the present appeal facts of the prosecution case may be summarized as under :- Brief facts giving rise to the present Criminal Appeal are that the informant Kallu Ram son of Chunkoo, resident of village and post Chillimal, P.S. Rajapur, District Chitrakoot moved written information on 15.07.2007 with these allegations that in the intervening night at 1.30 O'clock, he heard the noise from the house of Gaya Prasad son of Jhurai that some miscreant has intruded in his house. He and the people of the village attracted to the house of Gaya Prasad and it was told that the miscreant had entered in the Attari having crossed the courtyard of the house. Despite alarming, the miscreant did not come out, Amar Singh (appellant herein) the son of Gaya Prasad opened fire with the licensee gun of his father on the miscreant presuming him to be miscreant and that person died on the spot. Thereafter he was brought down from the Attari and it was found that the person was Indersen son of Ram Milan Yadav of their family. Therefore, the murder of cousin brother was committed under misconception that he was miscreant. His dead body is lying on the spot. This written information was given with the police station Rajapur, on which case crime no.80 of 2007, under Section 304 IPC and case crime no.81 of 2007, under Section 25/27 of Arms Act, were registered against the appellant-Amar Singh; while case crime no.82 of 2007, under Section 30 of the Arms Act, was registered against Gaya Prasad. The Investigating Officer after having concluded the investigation filed charge-sheet against acused Amar Singh in case crime no.80 of 2007, under Section 304 IPC, case crime no. 81 of 2007, under Section 25/27 of Arms Act and in case crime no.82 of 2007, under Section 30 of Arms Act filed charge-sheet against accused Gaya Prasad Yadav. The magistrate concerned took cognizance on the charge-sheet of case crime nos.80 of 2007 and 81 of 2007 against Amar Singh and the case being triable by the court of Sessions committed the file to the Court of Sessions for trial.
(2.) The trial court registered the Sessions Trial No.2 of 2008 (State Vs. Amar Singh) arising out of case crime no. 80 of 2007, under Section 304 IPC, P.S. Rajapur, District Chitrakoot and S.T. No. 3 of 2008 (State Vs. State), arising out of case crime no. 81 of 2007, under Section 25/27 of Arms Act, P.S. Rajapur, District Chitrakoot. The trial court framed the charge against the accused-Amar Singh under Section 304 IPC and 25/27 of Arms Act in the respective Sessions Trial Nos. 2 of 2008 and 3 of 2008. The charge was read over and explained to the accused Amar Singh, who denied the charge and claimed to be tried.
(3.) On behalf of prosecution to prove the charge against the accused Amar Singh in documentary evidence filed written information Ext. Ka-1, application dated 25.07.2007 Ext. K-2, inquest report Ext. Ka-6, recovery memo of the blood stained and plain clay Ext. Ka-7, recovery memo of one bullet and two spent cartridges 12 bore Ext. Ka-8, Postmortem report of the deceased Ext. Ka-9, police form no.33 Ext. Ka-10, letter to R.I. Ext. Ka-11, letter to CMO Ext. Ka-12, police form no.13 Ext. Ka-13, photocopy of blood stained and plain clay Ext. Ka-14, photocopy of taking in possession of one bullet and two spent cartridges 12 bore Ext. Ka-15, site plan of the occurrence Ext. Ka-16, recovery memo in regard to the DBBL Gun no.8722 along with four live cartridges 12 bore and arrest memo of the accused Ext. Ka-19, charge-sheet against accused-appellant in case crime no.80 of 2007, under Section 304 IPC Ext. Ka-17, charge-sheet against accused Amar Singh in case crime no.81 of 2007, under Section 25/27 Arms Act Ext. Ka-20, check FIR Ext. Ka-21.;