Ram Krishna Gautam, J. - (1.) This Jail Appeal under section 374(2) of Cr.P.C. has been filed by appellant Shiv Bhajan @ Ram Bhajan @ Kharedam through Senior Superintendent, Central Jail, Naini, Allahabad, under section 383 Cr.P.C. against judgment of conviction and sentence made therein dated 28.3.2011 passed by Additional Sessions Judge/ F.T.C. II, Kaushambi, in S.T. No. 58 of 2006, State of U.P. Vs. Shiv Bhajan @ Ram Bhajan @ Kharedam, arising out of Case Crime No. 74 of 2005, under section 302 I.P.C., Police Station Puramufti, District Kaushambi, whereby convicting appellant for offence punishable under section 302 I.P.C. and sentencing him to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine two years' additional imprisonment with this contention that Trial Court failed to appreciate facts and law placed before it. Two witnesses examined as witnesses of fact, who were named as eyewitness account in first information report, have turned hostile. They have not supported prosecution case. The only witness of fact PW1 is informant, father of deceased, who too failed to prove his presence on the spot or source of light or occurrence to be committed by convict appellant. His sole testimony was not trustworthy, but the Trial Judge based its judgment upon unreliable testimony of PW1 and passed impugned judgment of conviction and sentence made therein.
(2.) Heard Sri Pawan Singh Pundir, learned Amicus Curiae, appearing on behalf of appellant and Sri Ratan Singh, learned AGA for the State. Perused the lower court's record as well as impugned judgment.
(3.) In brief facts on record reveal that a first information report as Case Crime No. 74 of 2005 under section 307 I.P.C. was lodged at Police Station Puramufti, District Kaushambi, against Kharedam, son of Munni Lal, resident of Shanharpur Peepalgaon, Police Station Dhoomanganj, District Allahabad, on 24.4.2005 at 8.30 P.M. upon written report of Arjun Lal scribed by Dheerendra Kumar Shukla (Ext. Ka1) with this contention that informant's son Ram Sukh Kori, aged about 20 years, was standing near graveyard situated towards north side of his house under conversation with Kharedam, son of Munni Lal, resident of Shanharpur Peepalgaon, Police Station Dhoomanganj, District Allahabad, when at about 7.45 P.M. in the night of 24.4.2005 Kharedam under anger gave a firearm shot over Ram Sukh Kori with intention to kill him, who shouted upon which this informant, his real brother Sunder Lal, Shambhoo Lal son of Late Bharsoor and many others of village rushed on the spot when Kharedam was giving knife blow to Ram Sukh Kori, who had fallen there at. He fled towards western side. This informant and witnesses have seen and identified Kharedam, while giving knife blow and running from spot. Injured Ram Sukh Kori was taken at Police Station and this report, which was scribed by Dheerendra Kumar Shukla and signed by Arjun Lal, son of Late Ram Adhar, resident of Village Bihka alias Puramufti, District Kaushambi, was submitted for legal recourse. Injured Ram Sukh Kori was instantly taken to Swarooprani Medical College, Allahabad, for treatment, where he was admitted upon letter of Station Officer, Police Station Puramufti. Ram Sukh Kori succumbed to above injuries on 28.4.2005 at 12.15 P.M. This was informed by Constable Vishnu Lal. Inquest proceeding followed by preparation of requisite police papers for autopsy examination and autopsy examination in intact sealed dead body of Ram Sukh Kori was conducted in which death owing to above antemortem injury of wound of entry of close range by firearm shot as well as lacerated wounds of sharp edged weapon as well as of hard blunt object were held to be cause of death. This case crime number 74 of 2005 was altered into offence of murder punishable under section 302 I.P.C. Investigation resulted in filing of charge sheet (Ext. Ka6) for offence of murder punishable under section 302 I.P.C. against Shiv Bhajan @ Ram Bhajan @ Kharedam. C. J. M. took cognizance on 13.9.2005.;