BALA KRISHNA NARAYANA,J. - (1.) This appeal has been filed by the appellant Sankatha Prasad alias Raja against the judgment and order dated 28.10.1987 passed by the IIIrd Additional Sessions Judge, Fatehpur in Sessions Trial No. 59 of 1986 (State vs. Sankatha Prasad alias Raja), by which he has been convicted and sentenced to imprisonment for life, under Sections 302 I.P.C.
(2.) Briefly stated the facts of this case are that the house of complainant, Gaya Prasad which is situate towards south of village Sarai Sahzada, P.S. Malwan, District Fatehpur is separated from the house of the accused-appellant which lies towards south-west of the house of complainant, Gaya Prasad (P.W. 1) by one house. A Chak Road runs towards south from the complainant's village and after one plot from the Chak Road lies the plot towards east of the Chak Road, on which occurrence took place. Gaya Prasad (P.W. 1) is the former Pradhan of the village.
(3.) According to the prosecution, on 25.8.1985 at about 8.45 A.M., complainant, Gaya Prasad (P.W. 1) was returning home by the said Chak Road after easing himself. When he reached near the disputed plot while going through the Chak Road he saw that Durga Prasad alias Lala ( the real brother of accused Sankatha Prasad) was getting a KHAI (mound) dug with the help of two labourers namely Kali Charan and Ram Nath (P.W. 2). Gaya Prasad objected, to which Durga Prasad retorted by saying that he was not doing anything wrong. Suddenly, Durga Prasad's brother Sankatha alias Raja came and dared Gaya Prasad (P.W. 1) to stop the digging work. There ensued an exchange of hot words between them. Sankatha Prasad rushed to his house and returned with a country made pistol with him and while he was aiming a shot at Gaya Prasad (P.W. 1), Uma Shanker, son of Gaya Prasad (P.W.1) on hearing the noise of altercation, came and caught hold of accused Sankatha Prasad from behind. Accused Sankatha Prasad however managed to free himself from the clutches of deceased Uma Shanker and after turning towards him, he shot Uma Shanker, who fell down after receiving the fire arm injury. The accused was chased by other witnesses and Gaya Prasad but he managed to escape threatening them with his country made pistol. Gaya Prasad (P.W. 1) after arranging a bullock-cart, proceeded to Kunwarpur with his injured son for medical aid. However by the time they reached near pucca Talab, his son Uma Shanker succmbed to his injuries. Thereafter Gaya Prasad left the dead body of Uma Shanker in the care of Rajendra Prasad and got the written report (Ex. Ka-1) of the incident scribed by Barati alias Shiv Shanker Tiwari on his dictation, and on the basis of written report Ex. Ka-1, the chik F.I.R. ( Ext. Ka-11) was prepared by Constable Moharrir Surendra Prasad Jaiswal and relevant entry of the registration of the case under Section 302 IPC was made in the G.D. at serial no. 14 at 10.30 A.M. on 25.8.1985 (copy Ext. Ka-12). The investigation of the case was entrusted to Surendra Singh ( P.W. 3).;