- (1.) ONKARESHWAR Bhatt, J. This appeal has been filed against the judgment and order dated 29-5-1998 passed by the then 1st Additional Sessions Judge, Bareilly in Sessions Trial No. 244 of 1993, whereby the accused respondent has been acquitted of the charge under Section 302, IPC.
(2.) SRI M. C. Joshi, learned AGA and SRI R. L. Verma, learned Counsel for the accused respondent have been heard and the record of the case has been carefully perused. According to the prosecution case informant Net Ram PW 1 and his deceased son Mahesh Kumar alias Chhotey lived in village Darab Nagar, Police Station Aonla, District Barielly. In front of Baithak of the informant there is a Baithak of accused on the eastern side and a road intervenes in between the two Baithaks. On 24-10-1992 at about 6 p. m. the goat of the informant strayed away from the house and ate some green fodder which was kept in the Baithak of Teeka Ram the father of accused. Some altercation took place in that regard. On 25-10- 1992 informant Net Ram PW 1 alongwith his cousins Lala Ram PW 2, Prem Pal PW 4 and one Dundi was sitting in the Baithak of the informant, after taking food. The deceased had also taken food alongwith the informant. At about 9 p. m. the deceased was proceeding towards the old house where grand-mother of the deceased lived. When the deceased came infront of the Baithak of the informant at about 9 p. m. the accused, having a gun in his hand, fired at the deceased causing injury on the head of the deceased. The informant and others rushed towards the accused, who ran inside his. The deceased died on the spot. A written report of the occurrence was got prepared by informant Net Ram through scribe Chhotey Lal. The Investigating Officer I. S. Zaidi PW 5 was present in the police station when FIR was lodged on 25- 10-1992 at 11. 30 p. m. He took up the investigation. He collected the blood stained and plain earth from the spot and also sent the dead body of the deceased for post-mortem examination. Dr. H. C. Yadav PW 3 performed the autospy of the dead body of the deceased on 26-10-1992 at 3. 30 p. m. The doctor found fire arm injury (would of entry) 1 cm x 1 cm x brain cavity deep on centre of occipital bone on back of head. The doctor found that bullet was palpable which was removed from left side forehead just above left eyebrow. The doctor also found that there was bleeding in the left eyelids. Fracture of occipital and frontal bone on left side was also found. Membranes were lacerated and brain was also lacerated in which blood clot was present. The doctor also found 150 gms. semi digested unidentified food in the stomach. In the opinion of the doctor death occurred due to the coma as a result of ante mortem injury caused by fire arm.
(3.) THE accused respondent stated to have been falsely implicated in the case. He stated that Lala Ram, the elder brother of the informant Net Ram and borrowed his Dunlop which was broken by him due to which a marpeet had taken place in between him and Lala Ram and the case has been falsely instituted against him. Besides the formal evidence the prosecution has examined PW 1 Net Ram, PW 2 Lala Ram and PW 4 Prem Pal as eye-witnesses in the case. On appraisal of evidence the trial Court found that motive of the occurrence is not proved. Place, date and time of the occurrence is also not proved and the ocular testimony is in conflict with medical testimony. On these findings the trial Court has recorded acquittal of the accused-appellant. The State feeling aggrieved has come up in appeal.;