H.C.MITAL, J. - (1.) Narain has preferred this appeal against his conviction and sentence u/Ss.302, 201 and 295A, IPC to life imprisonment, seven years' R.I and three years' R.I. respectively passed by Sri N. N. Sharma, the then District and Sessions Judge, Moradabad on 13/03/1978.
(2.) The facts of the case according to the first information report (Ex. Ka-l) submitted at police station Sambhal District Moradabad at 7 a.m. are that at 5-30 a.m. the informant, Akbar Ali (P.W.1) had gone to offer prayer at the Jama Masjid as usual he had to remain standing outside the main door as the door was closed. There he met Ashfaq Hussain (P.W. 4), Ismail and other residents of the Mohalla who had also gone to offer prayers and when the door did not open they tried to get it opened and called the Mulla. When no response came from inside then one of them went up the roof and jumped inside and opened the door and then they all went inside. They saw about seven persons, five or six of them managed to escape. Inside the Masjid they found a dead body burning, and a person was trying to drag it. They caught hold of him and brought him to the police station; that the dead body was of Imam Saheb of Jama Masjid; that near the dead body they found burnt pages of Quran Sharif. On the basis of the report a case was registered and the appellant was taken into custody. The investigation followed. After inquest report of the dead body its post-mortem took place in the mosque itself as the crowd did not permit the dead body to be taken to the mortuary. Dr. Man Mohan Sahai Mathur (P.W. 3) conducted the autopsy and prepared the post mortem report (Ex. Ka-2) and following ante mortem injuries were detected : 1. Lacerated wound 4 cm. x 3 cm on right side of scalp bone deep. 2. Lacerated wound 21/2cm. x 2 cm x bone deep on front of scalp 4 cm above right eye brow. 3. Lacerated wound 8 cm x 3 cm x abdomen deep intestines were protruding out on left iliac fossa and were charred. 4. Lacerated wound 6cm x 4 cm x abdomen deep with intestines protruding out and charred. 5. Fracture of upper end of left femur with charred muscles around it and leg was attached with body with tags of muscles and skins. 6. Lacerated wound 4 cm x 3 cm x bone deep on left side of chin, and bone of left side of lower jaw fractured under it. The aforesaid injuries could have been caused by a blunt weapon like rod and were sufficient to cause instantaneous death : Following post mortem burns were detected : "Skin of head, face, neck front of chest, front of abdomen, right upper limb, right lower limb were charred, skin, muscles upto bone were charred and shrunken upto bone on left forearm left leg from thigh to ankle, right leg below knee. There was no charring or blackening on back from shoulder to hips.
(3.) On internal examination doctor found skin of scalp charred and back. There was depressed fracture of frontal bone and right temporal bones under injuries 1 and 2; membrane were congested and lacerated; ceribrum on right-side was lacerated in front. Blood was present in frontal and right-middle fossa; Parts of small intestines were protruding out of abdomen and charred; part of peritoneum was charred stomach was empty and pale. Intestines contained gases and fecal matter. Bladder was half full. Death was due to shock and haemorrhage caused by ante mortem injuries. The doctor also opined that victim could have met his death on the night of 28th and 29th Feb. 1976 and about 2-30 a.m.;