- (1.) S. K. Phaujdar, J. The present ap peal is directed against the judgment and order of the IVth Additional Sessions Judge, Mainpuri, dated 18-9-1980 whereby the present appellant was convicted under Section 302, IPC and was sentenced to life imprisonment. On presentation of the appeal, the appellant was directed to be released on bail by an order of this Court dated 24-9-1980.
(2.) THE appellant and three others, viz. Hiralal, Rajaram and Phateh Chandra, stood charge for an offence under Section 34, IPC in S. T No. 321 of 1979. While the other three were given benefit of doubt and were acquitted, the present appellant was convicted and sen tenced, as stated above. The incident in question allegedly tookplaceqnl7-4-1979atabout6. OOp. in. , for which the EI. R. in case Crime No. 56 under Section 302, IPC of P. S. Alau, Dis trict Mainpuri, was lodged at 12. 15 in the night, i. e. about six hours after the alleged incident. The F. I. R. was lodged by Ram Prakash Singh wherein he had named all the four persons, who stood trial before the Sessions Court. In the EI. R. , Ram Prakash Singh stated that he and his brother Om Prakash were engaged in get ting their field harvested. One Mindavei was collecting loose grains that had fallen on the ground. It was about 6. 00 p. m. on 17-4-1979 when Rajaram, Hiralal, Phateh Chandra and Naurang came there. Naurang was allegedly holding a rifle, Rajaram and Hiralal were having guns and Phateh Chandra had with him a Katta. Rajaram, Hiralal and Phateh Chandra were described as residents of village Ong. was seated to man of Salbahanpur. The complainant stated further that after their arrival these per sons had challenged Om Prakash and Naurang told him that Om Prakash was taking steps in the case of murder of Shiv-pal Singh and he would not be spared and would not be left alive for having taking steps against Naurang. At this Ram Prakash and Om Prakash raised alarm but all these persons opened fire on Om Prakash. On their screams, Prithvi Raj and boring field, reached and saw these per sons opening fire on Om Prakash. On receipt of gun shots, Om Prakash fell down and died. When Om Prakash fell down, the accused persons fled away towards south of the field. One Kaptan'singh had seen them running away. This Kaptan Singh was approaching the field of the com plainant. It was the further case of the complainant that due to fear of inter ference the dead-body was removed from the field and was brought near the door of the house of the complainant and there after the report was lodged. During investigation, police made inquest on the dead-body, sent it for post mortem examination and had seized blood-strained earth and standard earth from the place of occurrence. A bullet was also allegedly recovered from the place of occurrence and charge-sheet was sub milled. At the trial, prosecution had ex amined nine witnesses. They were P. W 1 Ram Prakash Singh, P. W. 2 Head Constable Mahavir Singh, P. W 3 Dr. D. P. Mishra, W 4 Prilhvi Raj Singh, P. W. 5 Kaplan Singh, P. W. 6shivram Singh, P. W 7 Roshan Singh, P. W 8 R. K. Mishra and P. W 9 Ah-varan Singh, whose affidavit was filed. A definite defence of alibi was taken by the present appellant, Naurang Singh and it was stated by him that he was already under arrest at Rhind (Madhya Pradesh) at the alleged time of occurrence. Two witnesses were also examined on behalf of the defence.
(3.) IN the course of his submission, the learned Counsel for the appellant ques tioned the truth of the prosecution story for absence of explanation of a cut finger, which was observed by the INvestigating Officer at the time of the inquest as also for discrepancies in the statements of the wit nesses. It was further urged that when three persons, against whom similar evidence was given by the prosecution wit nesses, were granted benefit of doubt, there was no reason for the trial Court to have believed the prosecution version in respect of the present appellant alone. It was further slated that the motive against the present appellant was not at all proved and in any view of the matter, according to the prosecution version, there had been only one rifle shot, but the medical evidence indicated four shots from the same weapon and even if il was held that Naurang was having a rifle, the other three rifle injuries are not explained by the prosecution. The theory of causing injury from a close range was also disputed as only one of the injuries on the deceased had blackening and charring, while others were not of that description. The learned Counsel also submitted that there was no acceptable evidence on record that the death was caused due to a rifle shot or that the bullet, that was found, could have been shot from a 315 bore rifle. To appreciate the arguments of the learned Counsel, the evidence of the prosecution is to be looked into. The post-mortem report of the dead-body or Om Prakash indicates that the examination was done on 18-4-1979 al 5. 30 p. m. and the probable time of death was one day. It was a well built body and Rigor mortis had passed off from the upper limbs, but was present on the lower limbs. There was one gun shot entry wound 1. 5 cm x 1. 5 cm x cavity deep on the right jaw. The Margins were lacerated and averted and blacken ing, scorching and tattooing were present around the wound. There was a cor responding exit wound measuring 7 cm x 4 cm. and the mandible bone was found frac tured. There was a further gun shot wound of entry 1. 5 cm. x 1. 5 cm. x cavity deep on the left side of chest, 11 cm. below the left nipple and a corresponding exit wound on the right side of chest below the right Axilla. The third entry wound was there from a gun shot measuring 1. 5 cm. x 1. 5 cm x bone deep on the medial side of the upper arm and a corresponding exit wound near the middle of the elbow. The fourth gun- shot entry wound measuring 1. 5 cm x 1. 5 cm x mussle deep was found on the left side of the chest with corresponding exit wound on the left side of that. In addition to these gun shot wounds, the Doctor had found several abrasions on the chest and ab domen. The death was due to shock and haemorrhage caused by the injuries.;