S.N.H.ZAIDI, J. - (1.) THIS criminal appeal has been filed by Ram Swaroop @ Barkat against the judgment and order dated 27.6.2006 passed by Additional Sessions Judge/Fast Track Court No. 1, Hathras in Sessions Trial No. 209/2001, state v. Hira and others, convicting the appellant and sentencing him to 10 years rigorous imprisonment and a fine of Rs. 5,000/ - under Section 364 of Indian Penal Code, for short 'IPC', and in default of payment of fine further simple imprisonment for 5 months.
(2.) THE prosecution case as revealed from the record, in brief, is that on 25.11.1998 at about 8.30 p.m. the appellant Ram Swaroop @ Barkat came to the house of complainant PW -1 Geetam Singh in Mohalla Naurangabad, town and P.S. Sikandra Rau of district Hathras and invited complainant's son Dinesh to see movie and took Dinesh away with him but when Dinesh did not return in the night then on 26.11.1998 the complainant went to the house of appellant to inquire about his son but he was not present in his house and when the complainant was going towards Lakshmi Talkies then he saw the dead body of Dinesh lying in a Nala beside the road. There were injuries on the dead body and it was smeared with blood. Several persons, including PW -3 Ram Babu and PW -6 Sine Mistri, assembled on the spot and informed the complainant that on 25.1.1.1998 at about 10 p.m. when they were coming from the market, they saw Hira, Satish Chandra, Ramesh Chandra and appellant Ram Swaroop @ Barkat drinking wine in the candle light in the Veranda of Kanchan and Dinesh was sitting amongst them. The complainant got the written report Exhibit Ka -1 scribed by one Mohar Singh and gave it at P.S. Sikandra Rau on 26.11.1998 at 8 a.m. On the basis of report an FIR under Section 302 IPC was lodged at the said P.S. against the appellant and three other persons; namely, Hira, Satish Chandra and Ramesh Chandra. It was also mentioned in the report that the wife of Dinesh had lodged a report in 1995 against Hira lal for causing injuries and outraging her modesty and a case relating to it was pending in the Court and due to that enmity Hira lal got Dinesh called through the appellant and murdered him. After the report was lodged, the Investigating Officer, for short TO.1 rushed to the place of occurrence and prepared the inquest report of the dead body of Dinesh and sent it for post -mortem examination through Constable Kanhaiya lal and Kareem Khan. The I.O. also took the sample of plain and blood stained earth from the place of the recovery of dead body after preparing its custody memo Exhibit Ka -5.
(3.) P .W. 4 Dr. S.K. Sharma conducted the post -mortem examination of the body of Dinesh on 26.11.1998 at 3.35 p.m. and prepared the report Exhibit Ka -2. He found the following ante -mortem injuries on his dead body: (1) Gun shot wound of entry 1 cm x 1 cm x cavity deep (Brain) on the left side of face, 0,5 cm in front of left ear directing forward and upward, margins inverted, blackening and tattooing present around the wound with fracture of left mandible and right parietal bone. (2) Gun shot wound of entry 1 cm x 1 cm x cavity deep on left side of face at the left angle of mandible directing forward and upward towards right side of ear with fracture of mandible, blackening and tattooing present around the wound, margins inverted. According to doctor's opinion the cause of death was shock and coma as a result of ante -mortem injuries and he would have died during the intervening night of 25/26.11.1998. ;