- (1.) D. S. Bajpai, J. This is a jail appeal by Sole accused, Kanhaiya Lal, son of Shiv Charan, against the judgment and order dated 1-12-1982 passed by the Special Judge, (Additional District and Sessions Judge, Hardoi, con victing the accused under Section 302, Indian Penal Code and awarding him imprisonment for life.
(2.) BRIEF facts giving rise to the case are that the accused had committed the murder of his own mother, Smt. Janka, on 11-7-1982 at 10 p. m. in a village Galiyara of village Behaiya, hamlet of Beniganj in the district of Hardoi out side the house of Ram Asrey. The accused is said to have committed the murder by causing her death by firing a shot on her from close range and the deceased is said to have died instantaneously on the spot. A written F. I. R. , Ext. Ka-1, pertaining to this occurrence was lodged at P. S. Beniganj the same night (12-7-1982) at 00 33 hours, i. e. half an hour after midnight of the same night By Buddha Lal alias Budhai, son of Shiv Charan, the own brother of the accused, at Police Station Beniganj. The informant also resided in the same house. The prosecution story in a nutshell, as disclosed from the F. I. R. is that the complainant resided in the village of Belhaiya, hamlet of Beniganj and his family comprised his father, Shiv Charan, his mother, Smt. Janka deceased, the real elder brother Kanhaiya Lal, the accused and younger two brothers, Budhai and Daya Ram. Though Kanhaiya Lal, the accused had been married, he was doing nothing and not even lending a supporting hand to his father in cultivation. It was alleged that there was constant quarrel between Kanhaiya Lal and his deceased mother all the moment and Kanhaiya Lal wanted partition of the holding. The relations were so strained that some times the mother even refused to give food to Kanhaiya Lal. It is said that about 3-4 days back Kanhaiya Lal took out half a bag of wheat forcibly from the house to sell it in the market at Beniganj and the informant's father on being informed went to Beniganj Market and snatched away the wheat bag from Kanhaiya Lal whereupon on returning to the house Kanhaiya Lal beat his mother, Smt. Janka and the informant saved her. It is alleged that on the fateful night when the informant was at his house and the informant's father had gone to Jasharan's grove nearby, the deceased went out at about 10 p. m. to attend to the call of nature and when she reached the house of Maiku Lal Yadav, son of Lakhan and Ram Asrey, son of Baldeo, in the Gali, he heard the cry of his mother that the accused -vas beating her to death (Daura Kanhaiya Lal Mars daal raha hai) whereupon the informant and the neighbours, Maiku Lal and Ram Asrey, rushed to the place and the accused thereupon fired a shot on the deceased and ran towards Beniganj. The shot hit the deceased on the left side of the chest when she fell down and died shortly thereafter at the spot It was on the basis of this written F. I. R. said to have been scribed by Chhedi Lal Verma that a Chik report, Ext, Ka-2, was prepared and a case under Section 302, I. P. C. was registered against the accused Kanhaiya Lal, vide G. D. No. 2 of 12-7-1982 of which Ext. Ka-3 is a true copy. According to the G. D. report, the complainant Buddha Lal along with Babu Ram, Kamta and Chhedi Lal had gone to the police station to over the written report. The investigating officer proceeded, with, the investigation, reached the spot at 1. 30 a. m. the same night and recovered the body of the deceased at the Tiraha towards sought of the house of Ram Asrey which was being guarded by the family, people and the other neighbours. There is no dispute about the fact that the day of occurrence was a pitch dark night and that there was no light available on the spot of occurrence nor was there any light available nearby which could create any visibility at the said spot. It was in these circumstances that the Panchayatnama was done in the morning at 7 a. m. and the body sent duly sealed through Constable, Debi Din and Chaukidar, Lakkha, for post-mortem which was performed on 13-7-1982 at 4 p. m. by Dr. S. K. Luthra as the District Hospital, Hardoi. The accused was said to have been arrested on 14-7-1982 while he was sitting on a Puliya of river Charwa on the outskirts of the village and one country-made revolver and some empty and live cartridges along with it were reco vered from his possession as also some money and other articles. At the trial Budda PW 1, Ram Asrey PW 3 and Maiku Lal PW 4, the three eye-witnesses, along with Chhedi Lal, the scribe of the F I. R. besides Devi Din PW 5, a constable at the Police Station, Beniganj, who carried body for post-mortem, Sobaran PW 6, Station House Officer at the Police Station, Beniganj, the Investigating Officer, Raghubans Singh PW 7, Head Moharrir, Police Line, Hardoi, who deposited the relevant papers for post-mortem on the dead body of the deceased, Sripal PW 8, a witness of recovery of the firearm and other articles fro n the possession of the accused and Dr S. K. Luthra, PW 9, the Medical Officer, who conducted the post mortem on the dead body, were examined by the prosecution. Neither any defence witness was examined, nor was any evidence adduced.
(3.) THE accused, however, pleaded not guilty. The learned Sessions Judge, as stated hereinabove awarded, life im prisonment to the accused after holding him guilty of an offence under Sec tion 302 I. P. C. and the accused is serving out the sentence in jail. The appeal was sent by the accused from jail through the Superintendent, Central Jail, Fatehgarh. This Court appointed Sri A. B. Mathur, Advocate, amicus curiae to appear and defend the accused.;