- (1.) K. S. Rakhra, J. Appellant Prabhu Dayal has been held guilty and sentenced to life imprisonment under Section 302, IPC by IIIrd Additional District Sessions Judge, Hamirpur vide his judgment and order dated 30-9-1982 in Sessions Trial No. 292 of 1998 relating to Crime No. 111 of 1980 Police Station Rath District Hamirpur. He has preferred this appeal under Section 374 (2), Cr. P. C.
(2.) PROSECUTION story in short was that deceased Abdul Munir alias Munna and his brother Abdul Sagir resident of Diwanpura, Police Station Rath had gone to a place known as Ghasi Ram ka Talab to collect "imli" leaves for their goat on 22-6-1980. At about 10 a. m. when they were about to return Abdul Munir was shot dead by Prabhu Dayal appellant who had enmity with the deceased and had fired on the exhortation of co-accused Hindupat who too was carrying a fire arm. This incident was witnessed by Kanhaiya Lal who was also accompanying the deceased. It was also witnessed by Wali Mohammad and Bhan Singh P. W. 3 who at that time were taking bath in the nearby pond, i. e. , Ghasi Ram Ka Talab. When the witnesses challenged, the two assailants ran away. It is alleged that the deceased had attacked the appellant about 7 years ago and was convicted under Section 307, IPC for the same. His appeal was however allowed by the High Court about a year ago. On account of this enmity, the deceased was killed. Report of this incident was lodged at police station Rath by Abdul Sagir P. W. 2 at 11. 15 a. m. and the investigation was taken up by Mohd. Rafat Kamal P. W. 4. He recorded the statement of the informant at the police station itself and proceeded to the place of occurrence where he held inquest of the dead- body lying on the spot and prepared other related documents. The dead-body was despatched for autopsy on the same day. Thereafter the Investigating Officer made spot inspection and prepared site plan at the pointing of informant. He also collected bloodstained and plain earth as well as bloodstained clothes of the deceased from the place of occurrence. On the same day he recorded the statement of inquest witness and proceeded to search for the culprits. Their houses were searched but they could not be traced out. On 23-6-1980, i. e. , the next day he collected post- mortem report. After this the Investigating Officer took up this investigation only on 2-7-1980 on which date he recorded the statement of other eye-witnesses including that of Bhan Singh P. W. 3. During this investigation appellant Prabhu Dayal surrendered in the Court and was taken into custody whereas co- accused Hindupat had absconded and could not be arrested. The police after investigation submitted charge- sheet against Prabhu Dayal only.
(3.) IN the trial, the prosecution examined only four witnesses namely Dr. A. K. Srivastava, P. W. 1, Abdul Saghir P. W. 2, Bhan Singh P. W. 3 and Mohd. Rafat Kamal P. W. 4. No evidence was adduced by the accused in defence. According to Dr. A. K. Srivastava P. W. 1 he had conducted post- mortem examination of the body of Abdul Munir alias Munna on 22-6-1980 at about 3 p. m. Ex. ka-1 is the post-mortem report issued by him after the aforesaid examination. He had noted that rigor mortis was absent and greenish discolouration was also not present. The abdomen was slightly distended. According to witness following ante-mortem injuries were found on the body : 1. Gun shot wound of entry 2. 2 cm. x 2 cm. on the right side back, 17 cm. below inferior angle of right scapula with scorching and blackening on 6 cm. x 5 cm. area around the wound. 5 pellets and two wad pieces were recovered from the wound from abdominal cavity.;