Vinod Prasad, J. - (1.) APPELLANT Ram Pal Singh has been convicted under Section 302, I.P.C. with sentence of imprisonment for life for that offence by VIIIth Additional Sessions Judge, Mainpuri, vide his order dated 24.5.1982, passed in S.T. No. 156 of 1979, State v. Ram Pal Singh, P.S. Bewar, district Mainpuri which conviction and sentence has been questioned by him in the instant appeal.
(2.) ESSENTIAL facts, eschewing unnecessary details, of the prosecution allegations against the appellant are that Jograj Singh and Chhatar Singh were uterine brothers. Anurag Singh, Rajesh Singh and Amar Singh are sons of Jograj Singh. Ram Kumar Singh (deceased) was the son of Rajesh Singh and husband of Smt. Sneh Lata (informant) P.W. 1. Ram Pal Singh (Appellant) and Ram Saran Singh (D.W. 1) are the grandsons of Chhatar Singh being sons of Shiv Raj Singh. The deceased and appellant Ram Pal Singh both were serving in army as Lans Naik. Two months prior to the date of the incident deceased had come to his house on leave from Agra where he was posted at that time, and had erected a ladauri (Cattle Feed pot) on his vacant land and then had went back. Appellant Ram Pal had also come on leave at that time. Ram Pal had broken the ladauri of the deceased and had started throwing garbage on the vacant land of the deceased. Five days before the incident Ram Kumar deceased had returned on leave to his village. On 13.2.1978 at 2 p.m. after finishing his vacation he was returning to Agra on his duty. Meanwhile Amar Singh, uncle of deceased (Uncle-in-law of the informant) came to his house alongwith one person of village Dhaniapur and the deceased started chatting with them. Appellant also reached there and the deceased inquired from him as to why he had broken his ladauri and started throwing garbage on his land on which a tiradic altercation ensued between the two and they grappled with each other. Ram Kumar deceased threw the appellant on the ground. Meanwhile Ram Saran D.W. 1 reached there and he alongwith Amar Singh separated them. Ram Saran also started talking with deceased who was standing along side a pillar on his verandah. Ram Pal Singh appellant went to his house and then he climbed on the roof of Muneshwar armed with a rifle and from there he asked his brother Ram Saran to keep away as he will shoot the deceased. On this the deceased remarked that whether he had the courage to shoot him. On this the appellant shot at the Ram Kumar with his rifle and then ran away. Ram Saran and others helped the injured and called a village compounder who filled the injury of the appellant with dough. Deceased was carried to Bewar and from there he was brought to Military hospital in Fatehgarh where he was got admitted at 9 p.m. the same day. Major Laxmi Jhingran, P.W. 3, inquired from him about the cause of injury on which she was informed by the deceased that the appellant had shot him on 13.2.1978 at 2 p.m. in village Hindupur, post Jasmai, district Mainpuri. P.S. Bewar. P.W. 3, Major Laxmi Jhingran sent a memo of the said utterances, Ext. Ka-3, to the police station Kotwali, Fatehgarh which was received at the police station at 9.30 p.m. Ram Shrawan Upadhyay P.W. 4 made an inquiry from the military hospital and finding that offence under Section 307, I.P.C. was disclosed he gave a report that the F.I.R. be allowed to be registered vide Ext. Ka-6. On the said report chik F.I.R. Ext. Ka-7 was registered at the police station at 11.55 p.m. by Shiv Karan Singh Constable and he also prepared the G.D. entry Ext. Ka-8. Subsequently the said F.I.R. was transferred to P.S. Bewar. Chik report and the G.D. were received at P.S. Bewar at 3.10 a.m. on 15.2.1978, which was entered into G.D. by Amar Singh constable clerk proved as Ext. Ka-15. The same day, 15.2.1978 at 2.50 p.m. Constable clerk Ram Singh registered the case at P.S. Bewar as Ext. Ka-16. S.I. Vedi Singh, P.W. 6, the Investigating Officer, engineered the investigation on 17.2.1978, recorded the statement of the Head constable Amar Singh then on 19.2.1978 he went to the spot where he recorded the statements of many villagers, prepared site plan Ext. Ka-17 and then searched the house of the accused-appellant Ram Pal Singh. On 1.3.1978, he received the post-mortem report of the deceased, then he proceeded to Fatehgarh where he recorded the statement of Dr. Major Mrs. Laxmi Jhingaran and copied the injury report and dying declaration (Memo) of the deceased. On 17.3.1978, he recovered the blood stained cloths of the deceased and prepared it's recovery memo Ext. Ka-18. On 26.3.1978, he went to the Army unit of the accused and there he copied the leave certificate of the accused as Ext. Ka-19 and after conducting usual investigation he arrested the accused on 26.7.1978 and then submitted charge-sheet against him which is Ext. Ka-20. Injury report of Ram Kumar Singh injured was prepared on 13.2.1978 at about 21 hours as Ext. Ka-2 by major Laxmi Jhingaran P.W. 3 which indicated that the injured/deceased had sustained a gun shot wound on right side abdomen 5 cm. in diameter with an exit wound of 1 cm. diameter. Injured was got admitted in the hospital by his cousin. Ram Kumar Singh injured died on 17.2.1978 at 7 a.m. in the hospital and his inquest was conducted by S.I. V. D. Tiwari which was proved as Ext. Ka-9 and other relevant papers of Chalan lash, Photo lash, etc. as Exts. Ka-10 to Ka-12.
(3.) THE post-mortem examination report of the deceased dated 17.2.1978 conducted at 4.30 p.m. Ext. Ka-1 indicate that the deceased Ram Kumar Singh had expired in Military Hospital on 17.2.1978 at 7 a.m. and the cause of his death was shock and toxemia as a result of sustained ante-mortem injuries. After the charge-sheet the accused-appellant was summoned by the trial court and his case was committed to the Court of Sessions for trial. On 3.3.1981, charge was framed against him by the II Additional Sessions Judge, Mainpuri which was read over and explained to the accused-appellant who denied the same and claimed to be tried.;