- (1.) VISHNU Sahai, J. Through this appeal the appellant Chhotkan challenges the judgment and order dated 30-10-1980 passed by the Sessions Judge, Kheri in Sessions Trial No. 296 of 1980, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC.
(2.) SHORTLY, stated, the prosecution case runs as under : Between the informant Ali Sher (PW-1) and the appellant there was ill-will because there were illicit relations between the appellant and the informant's wife Aaysha. Since the said relationship had become public the appellant bore grudge against the informant. On 20-8-1979,the informant had gone to sell some grocery items to Karanpur Bargadiya market. The deceased Rasool Ahmad, who used to work as a labourer for him, had also accompanied him. In the market the informant also met Yusuf Ali (PW-3) and Chhiddu (PW-4 ). After sunsets, the informant Ali Sher the deceased Rasool Ahmad, Yusuf Ali and Chhiddu started returning from the market towards their house. At about 8. 00 p. m. when they had reached near the grove of Suraj Bali Pandit on the canal road within the limits of Village Saktapur Police Station Phardan District Kheri, they saw in the torch light flashed by Yusuf Ali that three persons emerged from behind the wall near a culvert. Two of them were unknown and the third was the appellant. The appellant came infront of them and reprimanded the informant. Rasool Ahmad, who was with a cycle, handed over the cycle to the informant, reprimanded the appellant ; and tried to catch hold of him. At that juncture the appellant came in front of Rasool Ahmad and fired upon him with a pistol. Rasool Ahmad thereafter ran some distance but fell down. The informant and others feared that they may be the next targets and consequently implored the appellant not to assault them. The appellant ran away in the western direction. Thereafter the informant and others went to village Saktapur and informed the villagers that appellant had killed Rasool Ahmad. Then the villagers, alongwith the informant and others came to the place of the incident. They found that the corpse of Rasool Ahmad was not there. It was then that the informant and others went to the market and from the shop of Ismail took some paper on which the informant got the FIR scribed by Yusuf Ali. Whatever the informant Ali Sher dictated, Yusuf Ali scribed. Thereafter, he read over the FIR to the informant who signed the same. Then the informant went to Police Station Phardan and lodged his FIR. The evidence of SO Narendra Mohan Singh (PW-6) shows that on 20-8-1979 the FIR was lodged in his presence at Police Station Phardan by Ali Sher (PW-1) and on its basis Clerk Constable Ram Prakash Mishra prepared the Chik FIR (Exhibit Ka-5 ). A perusal of the Chik FIR shows that the FIR was lodged on 20-8-1979 at 10. 30 p. m. at Police Station Phardan, which was situated at a distance of two kilometres from the place of the incident. The evidence of SO Narendra Mohan Singh (PW-6) shows thus : After registration of the FIR he recorded the statements of the informant Ali Sher, Yusuf Ali and Chhiddu (the latter two had accompanied the informant to the police station ). Thereafter he left for the place of the incident, which he reached at about mid-night. He searched for the corpse of Rasool Ahmad, but could not find it. On 21-8-1979 he took from the place of the incident blood stained and plain earth under recovery memos and on the pointing out of the informant and eye-witnesses prepared the site plan. On 22-8-1979 he received information about the corpse. The same day he reached a field situated near canal and therefrom recovered the corpse of Rasool Ahmad and prepared the inquest and then sent it for autopsy. On 31-8-1979 he inspected the torch of Yusuf Ali and found it in working order. On 9- 11-1979 he submitted the charge-sheet against the appellant.
(3.) GOING backwards the autopsy on the corpse of Rasool Ahmad was conducted on 23-8-1979 at 10. 00 p. m. by Dr. R. C. Joshi (PW-2), who found on it the following ante-mortem injuries : (i) Gun shot wound of entry over the right side of chest 4 cm below the right collar bone measuring 4 cm x 3. 5 cm x chest cavity deep, margins inverted and irregular, blackening and tattooing present around the wounds. Third rib right side fractured pleura lacerated right upper lobe of (sic) lacerated at places chest cavity contains fluid and clotted blood 500 ml, nineteen small metallic shots recovered from the right lung ; 13 from chest cavity Lt. and eight pieces of paper wadding of different size recovered from the wound. (ii) Three abrasions over the back at lumbar region in an area of 12 cm x 4 cm ; largest being 6 cm x 3 cm and smallest being 4 cm x 2 cm. (iii) Lt. side face (cheek) all eaten away by animals. Rt. hand there are only two fingers middle and index present, rest all the portion of Rt. hand eaten away by animals. In the opinion of Dr. Joshi the deceased died due to shock and haemorrhage as a result of injuries sustained by him. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged for offences punishable under Sections 302/201 IPC to which he pleaded not guilty and claimed to be tried. His defence was of denial. During trial in all the prosecution examined six witnesses. Three of them, namely Ali Sher, Yusuf Ali and Chhiddu, PWs 1, 3 and 4 respectively, were examined as eye-witnesses. The learned trial Judge believed the ocular account furnished by them and convicted and sentenced the appellant in the manner stated in paragraph 1. Hence, this appeal.;