Harsh Kumar, J. - (1.) The present criminal appeal has been filed against the judgment and order dated 21.9.1983 in S.T. No.571 of 1981 passed by 2nd Additional Sessions Judge, Fatehpur, convicting the sole accused for offence under Section 302 I.P.C. read with Section 149 I.P.C. and sentencing with imprisonment for life.
(2.) The brief facts relating to the case are that a F.I.R. was lodged by Bhola son of Ram Kishun Mishra at 6:45 a.m. on 2.6.1981 at P.S. Bindki, District Fatehpur at Case Crime No.118 of 1981, under Section 302 I.P.C. regarding the criminal incident of 12:30 a.m. in the night of 1/2.6.1981 at 12:30 a.m. with following contentions:- "It is submitted that in the night of 4/5.2.1981 a dacoity did take place at the house of his family member Binda Prasad Mishra in which he is a witness; that he had identified Beni and Narad Kori of Village Janta, P.S. Bindki, upon which Beni was arrested about 17-18 days back and due to this reason last night at about 00:30 a.m. when he and his father Ram Kishun Mishra were laying outside their house and the lantern was alighted, on the nail as usual and his brother Ram Manohar was laying on the roof of his house, accused Narad along with 3-4 persons armed with gun, pistol, hockey and lathi arrived and started beating him and his father with the hockeys; that his father caught hold of one of the miscreants and on his alarm Ram Manohar challenged the miscreants from his roof upon which two miscreants/assailants climbed at his roof but when the assailants, who caught, called them they, jumped in the courtyard and after opening main door came out and fired at his father who sustained injuries and fell down. Upon the alarm Pratap Singh with licensed gun Baijnath Tiwari, Dinesh @ Chhokey and Murad Ali etc. with lathies and torches arrived there challenging the miscreants and Pratap Singh made 3-4 fires with his licensed gun upon which the miscreants fled in fields towards East; that Narad, who has his Nanihal in his village was identified by them in the light of lantern and torches; that other miscreants were also clearly seen and can be identified upon being produced; that the injured father was being taken to Khajuha Hospital but he succumbed to the injuries on way to hospital and after bringing back his dead body at home, he is lodging the report."
(3.) I.O. prepared the inquest report, site plan, collected the injury report of first informant Bhola and post-mortem report of Ram Kishun deceased and after recording the statements of witnesses as well as collecting the evidence failed to detect the names of 3-4 unknown miscreants mentioned in the F.I.R., and submitted the charge-sheet only against Narad under Section 302 I.P.C. The case was committed to sessions and the Additional Sessions Judge framed the charges against the accused-appellant Narad under Section 302 I.P.C. for committing death of Ram Kishun in the night of 1/2.6.1981 at 00:30 a.m. in Village Ghohra, to which accused-appellant denied and demanded trial.;