M.C.JAIN,J. - (1.) THIS appeal is directed by the appellant Nasim alias Kallu against the judgment and order dated 24 -6 -1980 passed by Sri P. Chandra, the then Sessions Judge, Bijnor in Sessions Trial No. 148 of 1978. He has been con ­victed under Section 302, IPC and sen ­tenced to life imprisonment.
(2.) THE appellant alongwith four others had been put on trial. His other four co -accused were acquitted but he was con ­victed and sentenced as stated above. The incident took place on 15 -3 -1978 at 7 p.m. in Mohalla Jabtaganj, P.S. Nazibabad, District Bijnor and the report was made on 16 -3 -1978 at 4.45 a.m. by PW 1 Shamim. The prosecution case, as per the First Information Report and the evidence adduced in Court, in its broad essentials may be set forth. The accused used to carry on business of dealing with dead animals. They used to take Theka of jungles to collect dead animals. In the year 1977 -78 the accused Mobin took Theka of certain jungle for Rs. 8,000 and he entered into partnership with PW 1 Shamim by taking Rs. 10,000 from him as his investment in the business Rs. 8,000 had been give to him by Shamim towards partnership of the Theka and Rs. 2,000 for partnership in other works dealing with dead bodies of animals collected from others sources. It was agreed that they would divide the profits half and half. This partnership con ­tinued smoothly for 4 or 5 months. Later on the accused Mobin started doing partnership transactions secretly and refused to share the profits with PW 1 Shamim. On coming to know about it, PW 1 Shamim asked him either to give his share of the prohit in transactions con ­ducted clandestinely or to terminate the partnership and to return his capital of Rs. 10,000. It was disliked by the accused who threatened him about 7 -8 - days before the incident that not a single pie of his invest ­ment would be returned and if he raised his voice, he and his family would be finished off. This was said to be the background of the incident.
(3.) ON the day of the occurrence at about 7 p.m., PW1 Shamim and his uncle PW 2 Abdul Shami were sitting in their Sahan on i cot. At a distance of 5 -6 - paces towards the southern side Dal (Pulses) was being cooked on a Chulha in an earthen pot. The pot was covered by an aluminium plate. They were engrossed in conversa ­tion. The accused -appellant Nasim alias Kallu came with a Chilam in his left hand. His right hand's fist was closed. He sat near the Chulha and placed his Chilam on the ground. The prosecution case is that he put something inside the cooking pot which was on fire for removing the lid. The atten ­tion of PW 1 Shamim and PW 2 Abdul Shami was drawn when there was sound produced by the replacing of plate on cooking pot. They saw at that time that palm of the right hand of the accused -ap ­pellant was open and it was no longer closed into a fist. The prosecution case is that right fist of the accused -appellant presumably contained poison which he dropped in the cooking Dal after removing the lid while filling his Chilam from the burning Chulha as a pretext. When the attention of PW 1 Shamim and PW 2 Abdul Shami was drawn by the sound of replacement of the plate from the cooking pot by the accused -appellant, they had asked him also as to what was he doing and he had replied that he was just seeing as to what was cooking inside the pot. After reputting the plate on the cooking pot and filling his Chilam with fire, the accused -ap ­pellants went away. At that time the remaining four accused were standing in their Gher waiting for Nasim alias Kallu. Their Gher was in the southern side across the road.;