Pratyush Kumar, J. - (1.) THE instant criminal appeal, filed by the accused -appellant under Section 374(2) Cr.P.C., is directed against the judgment and order dated 24.5.1982 passed by Sri R.N. Sircar, Vth Additional District & Sessions Judge, Hardoi, in S.T. No. A -457 of 1981 (State v. Vijendra Vijay) under Section 302 I.P.C., Police Station Kotwali, whereby the appellant was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 1,000/ -. In default thereof to undergo further three months rigorous imprisonment.
(2.) IN brief the prosecution case is that Hari Shanker gave a written report on 7th February, 1981 at Police Station Kotwali, stating therein that his brother Brahmanand and Naval Kishore were friends, there was some litigation, criminal as well as civil between Naval Kishore and his family members on the one hand and the appellant on the other. On this account, the accused Vijendra Vijay bore enmity with Brahmanand also. Yester -night at 8.00 p.m. his brother Brahmanand, Naval Kishore, Bhanney Chowkidar were conversing in front of the door of Vijendra Vijay. Vijendra Vijay and his brother Brahamanand had an altercation in regard to construction of 'Nali'. During altercation Vijendra Vijay shot Brahmanand on his chest from a country made pistol and entered the house and shut the door. His injured brother reached the door of his house and due to injuries sustained by him he died there. On this report chik F.I.R. was scribed. Case under section 302 was registered as Case Crime No. 106 of 1981. Relevant entries were made in the general diary and investigation started therefrom. Sri Ram Tripathi, SSI, Police Station, Kotwali reached the spot, examined the witnesses and conducted the inquest proceedings on the dead body of Brahamanand, inspected the spot, prepared the site plan, took samples of blood stained and plain earth. He also sent the dead body to mortuary for its autopsy. On the basis of information furnished by 'Mukhbir' (informer) on the same day, he arrested the appellant from Hardoi Bilgram Road near place of Param Dhabha from whose personal search, he recovered one country made pistol, one empty and one life cartridge. After coming back to the police station, he deposited the samples taken from the spot. The items recovered from the accused and the accused was locked up in the 'hawalat'. Site plan was prepared. Samples of blood stained and plain earth were sent for chemical examination. After obtaining postmortem report and chemical examination report against the appellant, chargesheet was submitted.
(3.) THE case was committed to the Court of Session where the accused was charged under Section 302 I.P.C. which he denied and claimed to be tried. In support of the charge, besides documentary evidence, seven witnesses were examined by the prosecution. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. In his statement accused admitted the relationship, enmity, location of the house of deceased Brahamanand. He denied that in front of the house of the first informant, 'lantern' was burning, though he admitted the details of the litigation but he denied the facts stated by the eye -witnesses, touching the occurrence, regarding autopsy, investigation, chemical examination, he pleaded ignorance. He denied the arrest by Sri Ram Tripathi, SSI. According to him, he has been falsely prosecuted due to enmity. Witnesses were deposing against him on account of enmity. In the defence, certified copies of litigation under Section 145 Cr.P.C. between Raj Kumar and the deceased Brahamanand were filed examined and constable Bhagwati Singh, D.W. -1 were examined.;