- (1.) THIS criminal ap peal has been filed against the judgment and order dated 26-9-1980, passed by Ses sions Judge, Sitapur, in Sessions Trial No. 7 of 1980, eonvieting the appellant under Section 302, IPC and sentencing him to imprisonment for life.
(2.) FACTUAL background of' this appeal relates to sole accused appellant who al legedly nursed grudge against deccased Raghunath because wife of the appellant was abducted by him. The occurrence thus took place while Ragunath deccased was reluming from Biswan in District Sitapur on a cycle with a bag of paddy on 21-10-1976 and reached at about 11 a. m. towards south of a place where two heaps of PAYAL were stored. Accused appellant Soney along with one unknown person, whose identity could not be traced till this dale, came out from the backside of the heaps of PAYAL. He asked the deccased for BIDI smoking with him and it was at that time when accused Soney 's un known companion shouted to kill the deccased. Thereupon accused Soney fired from country made pistol Ragunath of at who cried whereupon wit nesses Hardwari, Jai Karan Singh and Gulam came to the scene of the crime. The accused in the meantime had run away. Hardwari reached the place of occur rence and found Ragunath dead lying other. Thereafter FIR was lodged at police station at 3. 30p. m. on The same day. Inves tigation to fllowed and The accused was charge-sheeted. The trial Court recorded evidence of the witnesses examined in the case and concluded at page 16 of the judg ment under appeal that the prosecution produced two witnesses, Jai Karan Singh (PW-2) and Gulam (PW-3) who actually saw the accused causing fatal injury to the deccased. They were solely reliable wit nesses of the occurrence. Hardwari (PW-1) was informant and father of the deccased. He also saw the occurrence. The trial Court further found that the occur rence had taken place ai about 104 sleps from the place where he was working. The trial Court further held that he was an old man and he could not see and recognise persons even in day time beyond six 10 seven sleps but he could very well recog nise the accused appellant as well as vic tim, his son by their voice on hearing their conversation. He, therefore, rushed to 'he scene of crime and found his son lying dead. The trial Court thus believing the evidcnce on the record convicted the ap pellant and sentenced him to life im prisonment, resulting in the present ap peal. The appeal has been pressed on the ground that the trial Court failed to ap preciate the evidence on the record, result ing in the incorrect conclusion regarding the guilt of the appellant. We have heard the partie Counsel and perused the record.
(3.) THE trial Court relied on the ocular evidence of PW-1 Hardwari, PW-2 Jai Karan Singh and PW-3 Gulam. It is now to be seen as to how-far the trial Court has been able to appreciate the evidence properly. The FIR in this case was lodged on the same day at 3. 30 p. m. when the occur rence had allegedly taken place at about 11 a. m. on 21-10-1976. The FIR demon strated I hat the deccased died due to si nglc fire arm injury which he received in his head. The post mortem report (Ext. Ka-2) detailed the direction of the injury aiul PW-4 Dr. Om Prakash, while proving the post-mortem report, prcpaied by him stated in the crossrexamination thatthe accused and the deccased in case were infront of each other at the time of assault then the injury in question could not he caused. The trial Judge held, at page 16 of his judgment, that scat of the injury is infronl of the lateral end of left eye brow and the outer angle of left eye. According to the trial Court it was not in the evidence thatthe assailant and the victim bofh were jusi infront of each other and the victim remained static throughout till he received injury so as to rule out the possibility of the injury having been caused on The lateral end of left eye-brow. It was for the eye wit nesses to detail as to how the injury in question was caused and that having not been done in the evidence, as concluded. by The trial Court, clearly showed that the assailant and the victim were not infronl of each other when the fatal butlet was fired. 11 means that the fire-arm injury was c a used when the back of the head of the deccased was towards the assailant which suggests that the deccased was running away from the assailant. It is not in the evidence of the prosecution witnesses that such was the case when fatal butlet was fired. Therefore, the trial Court led itself imo the realm of imagination while set tling inconsistency in the prosecution case with reference to the medical evidence and ocular evidence on the record. Further PW-4 Dr. Om Prakashstated that the post mortem examination was conducted by him on 22-10-1976 at 3 p. m. and the time of death of the deccased at the lime of the post -mortem cxaminalion was 1-1/4 days. He furl her stated in The cross-examination thatthere should be a difference of abeul tour hours in the said duration of death which means that the deccased had died at least 34 hours earlier to the post-mor tem examination. The time if counted from 22-10-1976 at 3 p. m. Then it means that the deccased had died in the early hours of 21-10-1976. Obviously this lime does not conform to the prosecution evidence adduced in this case. The medical evidence on the record, therefore, has not supported The prosecution case regarding The time of dealh of The deccased. The Investigating Officer prepared blood gained and simple earth samples. He prepared recovery memo Ext. Ka-8. It does not bear the signatures of the witnesses. The Investigating Officer in his evidence as PW-6 Brij Raj Singh specifically ad-milled that he forge, to get the signatures of the public wimesses on this recover) memo which could mean thatthe blood was noi recovered from The place noted in this recovery memo because medical evidence, as discussed above, indicated in consistency in the prosecution evidence regarding the time of death.;