- (1.) Y. R. Tripathi, J. This criminal appeal is directed against the judgment and order dated 2-9-1980 passed by Shri Bhanwar Singh, the VIII Addl. Sessions Judge, Agra, whereby he convicted the appellant of the charge under Section 302 IPC, and has sentenced him to undergo imprisonment for life.
(2.) THE facts leading to this appeal are a few and lie in narrow compass. The informant Basudeo is a permanent resident of village Arabkhurd P. S. Sirsaganj of District Mainpuri. At the time of the incident he alongwith his brother Bastiram and his family was residing in Kheragarh town of District Agra in a rented house belonging to one Wahidan. About 8 days prior to the incident Bastiram had got the appellant Prem Jatav arrested under Arms Act for his being in possession of unlicensed fire arms. A day prior to the incident, in the evening. Prem Jatav met the informant in inebriated condition in front of a liquor shop and told him to convey his brother Bastiram that he had not done good by creating enmity with him and that he shall have to repent for this throughout his life. Bastiram had gone to one of his relations on the morning of that day. On the day of incident, it is said that around 6 p. m. when Rakesh aged about 11 years, son of Bastiram after taking his meal was playing on the pathway to the east of his house, the appellant enticed him away to the north towards Khanpur on the path way and after taking him off the path way shot him dead beneath a Neem tree standing on the border of the field of one Megh Singh of village Kheragarh and fled away. Prabhu PW-6 a resident of village Nagla Udaiya, who worked as Mistri in Kheragarh town at that time was easing in a nearby wheat field at a distance of 15-20 paces from the scene of incident, saw the appellant shooting the deceased and fleeing. One Laxman Das P. W. 1, who was present on the temple situated in his field lying at a distance of 300-400 yards towards south west of the field of Megh Singh saw the appellant fleeing with a tamancha in his hand. One Fateh Singh P. W. 2, who while going to Kheragarh from his village Khanpur had just before the incident come across the appellant and was urinating near the scene of incident also saw the appellant shooting the deceased. On hearing the bang of fire arm, Basudeo P. W. 5, who was present inside his house came out of his house and on learning about his nephew Rakesh having been murdered, rushed to the spot where Laxman Das P. W. 1, Fateh Singh P. W. 2 and Prabhu P. W. 6 who were already present there told him about the complicity of the appellant in the incident. Basudeo P. W. 5 without losing any time proceeded to the Police Station Kheragarh which lies at a distance of one kilometer from there and made an oral report of the occurrence which was taken down by Jai Dev Singh P. W. 3 then posted there as Head constable. Jai Dev Singh P. W. 3 also registered a case vide G. D. No. 24 at 18. 45 (Ext. Ka-2) S. I. , Ram Charan Singh P. W. 8, who was posted as Station Officer and was present at the Police Station swung into action. He held the inquest and after completing usual formalities despatched the dead body for its post-mortem examination, which was conducted on 18-2-1980 at 4. 30 p. m. by Dr. S. P. Misra, P. W. 4 who was then posted as Medical Officer, District Hospital Agra. According to Dr. Misra the deceased was aged about 11 years. He was of average built. He found rigor mortis present in both upper and lower etremitis. The post-mortem staining was also found present on the back. Decomposition had not set in by then. According to Dr. Mishra the deceased has died a day before. Dr. Mishra found the following ante-mortem injuries on the person of the deceased : (i) Fire arm entrance wound on the right side back of chest 1/2" x 3/10" x chest cavity deep 3/4" below the right scapula lower angle and 4" outer to vertebrae column, linear margins inverted, contused, blackening, tattooing seen around the wound margins. No scorching seen. (ii) Abrasion 4/10" x 4/10" on the right side back of chest 4" below the apex of posterior axillary fold. (iii) Fire arm exit wound on the left side front of chest 3-1/2" x 2-1/2 x chest cavity deep. Portion of the heart protruding margin everted contused. No Blackening, tattooing and scorching seen. The injury is 1" below the outer end of left clavicle. (iv) Lacerated wound 3" x 2-1/2 "x bone deep on the back of left hand just below the wrist. No blackening. tattooing, scorching seen. 2nd and 3rd metacarpal bones seen fractured. On internal examination right hand side 7th rib and left hand side 3rd, 4th and 5th ribs of the deceased were found fractured and his left side of sternum and right side spleen were ruptured.
(3.) AFTER due investigation a charge-sheet was presented against the appellant, which culminated into his trial. The case of the appellant was that of denial and false implication as a result of his enmity with the police. The prosecution during the course of trial produced Laxman Das P. W. 1, Fateh Singh P. W. 2, Basudeo P. W. 5, Prabhu P. W. 6, all witnesses of facts, Head Constable Jai Dev Singh P. W. 3 the scribe of the chick report and the G. D. , Dr. S. P. Misra P. W. 4, Medical Officer, who held autopsy on the dead-body of the deceased. Constable Suresh Chand P. W. 7 who alongwith one Tundi Lal had taken the dead-body to the mortuary for its post-mortem examination and S. I. Ram Charan Singh P. W. 8, the Investigation Officer.;