- (1.) U. S. Tripathi, J. This appeal has been preferred against the judgment and order dated 16-7-1980 passed by Additional Sessions Judge, Mathura, in Sessions Trial No. 164 of 1979 convicting the appellant Dan Behari under Section 302 read with Section 301 IPC and sentencing him to undergo imprisonment for life.
(2.) THE prosecution story, briefly stated, was that appellant Dan Behari was Bhanja (sister's son) of Kaushal Kishor (PW 4 ). Father of Kaushal Kishor got appointed appellant Dan Behari for 'pooja' in Rao Raja Girdhari Sharanji temple. After death of Girdhari Sharan, his widow Rajbir Kaur became owner of said temple. Kaushal Kishor was residing as a tenant in a house belonging to Rajbir Kaur. THE appellant with the help of Rajbir Kaur wanted to evict Kaushal Kishor from the said house. Litigation regarding it was pending in Civil Court Mathura. On 18-2-1979 Chandrabhan S/o Kaushal Kishor was going to Mathura. In the way Dan Behari appellant and his brother Yogendra chased him. A report regarding said occurrence was lodged. Yogendra and Dan Behari appellant had also assaulted Chandra Prakash another son of Kaushal Kishor. Report of the said occurrence was also lodged. On the morning of 19-2-1979 at about 8. 30 a. m. Dan Behari appellant and his brother Yogendra were eating Kachauri at the shop of Tonu (PW 3) in Mohalla Patharpura, P. S. Vrindavan. Kaushal Kishor (PW 4) alongwith Chandra Bhan was passing through the road. Observing Dan Behari and Yogendra, Kaushal Kishor asked them as to why they had assaulted his son. On it, Dan Behari and Yogendra started abusing him. Kaushal Kishor threw a brick bat towards them, so that they might stop abusing. On it, Dan Behari appellant whipped out a country made pistol and fired towards him. Kaushal Kishor sat down and shot hit Buddha deceased a boy aged about 6 years, son of Than Singh (PW 1), who was standing behind him Sudhan (PW 2) was also present at the shop of Tunu. He picked up Buddha deceased and took him to his house. Than Singh (PW 1), father of Buddha deceased, took him to C. F. C. Hospital Vrindaban, where he was medically examined by Dr. G. K. Kautil (PW 5), who found fire arm injury on his chest. His injury was operated at about 5 p. m. , but died at 10. 35 p. m. After admitting Buddha deceased in the hospital, Than Singh (PW 1) got prepared report (Ext. Ka-1) from Chandu and lodged the same at P. S. Vrindaban at 10. 30 a. m. On the basis of written report, chik F. I. R. (Ext. Ka-6) was prepared by Head Moharrir Vishambhar Singh (PW 7), who made an endorsement of the same at G. D. report (Ext. Ka-7) and registered a case under Section 307 IPC against the appellant.
(3.) INVESTIGATION of the case was taken by Shivram Singh Sengar (PW 8), who interrogated Than Singh (PW 1) at C. F. C. Hospital. Thereafter, he visited the place of occurrence and interrogated Tunu (PW 3), inspected place of occurrence and prepared site plan. He took into possession two brick bats from the shop of Tonu and interrogated Kaushal Kishor (PW 4 ). The appellant was absconding. Inquest of the dead body of deceased was conducted on 20-2- 1979 by Sub Inspector Babu Ram Dixit, who prepared inquest report and sent the dead body for post-mortem.;