SURENDRA KUMAR,J. - (1.) THE appellant Babadeen alias Babai, son of Sri Gayadeen has approached this Court in its appellate jurisdiction provided under section 374(2) of the Criminal Procedure Code, 1973 (hereinafter referred to as the 'Code'), against the judgment and order of conviction dated 3.3.1983 recorded by the Illrd Additional Sessions Judge, Allahabad in Session Trial No. 366 of 1979-State v. Babadeen and others, relating to Crime No. 41 of 1979, Police Station Puramufti, District Allahabad, by which the appellant on being held guilty under section 302 of the Indian Penal Code (in short I.P.C.) was convicted and sentenced to undergo imprisonment for life under section 302 I.P.C.
(2.) BRIEFLY narrated prosecution version against the appellant as was scribed in the written report, Ex. Ka-1 by Bhola, (son of Jagdish) was that two accused persons namely Chhedi Lal and Bhai Lal (who were by the impugned judgment acquitted by giving benefit of doubt) are the real brothers. The third accused (appellant herein) is said to be their friend. A suit for partition of land was going on between Smt. Jitani (deceased) aged about 50 years, wife of Lala Kurmi and one Sudhana Kurmi of the same village. The three accused persons namely Babadeen, Bhai Lal and Chhedi Lal were on the side of Sudhana and they used to do pairvi in the case on his behalf. For quite some time, Smt. Jitani (deceased) had been living in the house of the first informant/ complainant, Bhola PW-1. Smt. Jitani possessed about 8Vi bighas of land which was cultivated by Bhola on Adhiya/Batai. This Bhola used to give half of the produce to the deceased Smt. Jitani. The date fixed in the partition suit was 15.1.1979. However, no evidence was recorded on this date and the next date fixed was 30.1.1979, on which date the statement of the deceased Smt. Jitani was to be recorded. Smt. Jitani on 24.1.1979 around 5.00 P.M. was sitting in the outer northern room of Bhola's house. Bhola and his wife were sitting at the door of the adjoining room. The aforesaid three accused persons including the appellant then appeared on the scene-Babadeen carrying a gun and Chhedi Lal and Bhai Lal each having lathi. Seeing them Smt. Jitani tried to escape but Chhedi Lal and Bhai Lal exhorted the appellant Babadeen that no better opportunity would be found and she should be killed. Smt. Jitani could not even get up when Babadeen fired his gun at her. Smt. Jitani sustained the gunshot and died almost instantaneously. On alarm and also on hearing the loud sound of the gunshot, the witnesses Mewa Lal and Doodh Nath PW-2 also arrived there. The three accused persons then ran away towards the east. The accused persons were not chased by the witnesses out of fear. Smt. Jitani had been shot on left side of the chest and some of the pellets after piercing the body had got embedded in the wall and Chaukhat of the house. It was the first informant Bhola PW-1 who dictated the report of the incident Ex. Kal at his house and the same was scribed by Ganga Prasad on 24.1.1979. Leaving the dead body of Smt. Jitani on the place of murder, Bhola PW-1 went to the police station and gave the written report Ex. Kal, where the F.I.R. Ex. Kal4, of the murder was lodged on 24.1.1979 itself at 9.30 P.M. Thus, the F.I.R, of the murder was lodged by Bhola within 4Vi hours of the said murder after covering the distance of 8 kilometres from the place of occurrence on foot. A case was registered and Shri Dharmvir Singh Malik, S.O. (PW-5) commenced the investigation. He recorded the statement of Bhola under section 161 Cr.P.C. at the police station and then proceeded to the spot. He reached there at about 11.00 P.M. and conducted the inquest on the dead body of Smt. Jitani. He prepared the inquest report Ex. Ka 4. He prepared the other documents concerning the dead body and then despatched it for post-mortem examination duly sealed. The dead body was taken by constables Phool Singh and Anant Ram. The Investigating Officer made a spot inspection and prepared the site plan Ex. Ka 16 giving therein the factual details noticed by him. He recovered blood stained and simple earth from the spot and prepared the memo Ex. Ka 3. He found three pellets embedded in the wall and one pellet in the Chaukhat of the house. He took into possession these pellets and prepared the recovery memo Ex. Ka-2. He also recorded the statements of the other witnesses under section 161 Cr.P.C.
(3.) SRI Dharmvir Singh Malik, Investigating Officer PW-5 after recording the statements of the witnesses and collecting evidence, submitted charge- sheet, Ex. Ka 17 against three accused persons including the appellant on 11.3.1979 under section 302 read with 34 I.P.C.;