V.P. Tyagi, J. - (1.) THIS appeal of Gopal is directed against the judgment of the Additional Sessions Judge, Dholpur, dated 13 -8 -1970 whereby the appellant has been convicted under section 302 Indian Penal Code and sentenced to imprisonment for life. Gopal and Kheta were challaned for having committed murder of Badri. The prosecution story as revealed by the eve witnesses P.W. 6 Rameshwar and P.W. 7 Matola, is that on 26th of November 1969 both those witnesses were cutting berry shrubs in a jungle when they heard some people talking in the ravines of river Chambal. They saw Gopi. Heta, Sarupa and and Badri and they were going towards Ghooriyekhera. Gopal, Heta and Sarupa stopped while Badri went on proceeding towards the village Ghooriyekhera. After covering a little distance Badri came to know that his associates had lagged behind. He, therefore, came back and asked Gopi etc. as to why they had stopped. On this it is said that Gopi fired a muzzle loading gun towards Badri hitting him on his abdomen Badri fell down. Seeing that Badri was shot by Gopi, both Matola and Rameshwar, who were witnessing this incident from the top of the hillock, rushed towards Badri. When they reached the place marked as 'D' in the site plan (Ex. P. 9), where Badri lay injured and from where the Station House Officer (P.W. 8) had collected blood -stained earth, they saw Gopi, Heta and Sarupa running away. Both these witnesses chased Gopi but they could not catch him. They then came back to the place where Badri was lying injured and found Badri dead. There upon, Rameshwar came to the village and informed P.W. 3 Mohan Singh brother of Badri. Mohan Sing went to the jungle with a cot and brought Badri to the village from where they proceeded to Dholpur with the dead body of Badri and lodged a report at the Police Station, Dholpur, but as the occurrence had taken place within the jurisdiction of Police Station, Rajakhera, the case was not registered at Dholpur though the police authorities posted at Dholpur prepared a panchnama and sent the dead body of Badri to the hospital for post mortem. Dr. Dalip Singh (P.W. 2) conducted the post -mortem examination and found the following three external injuries: 1. Gun shot entrance wounds ¼ x ¼ and 1/2 x 1/2 in the epigastric region with blackening of the skin surrounding it. One, just below the inner and of the 12th rib and the other, two and a half inch away from the mid line of the abdomen and 2" below the 12th left rib.
(2.) EXIT wound 3/4" x 1/2" on the left side of the back 3" away from the 10 thoracic vertebrae. Exit wound 3/4" x 1/2" on the left side of the back, 1 1/2" away the 12th thoracic vertebrae. 2. On opening the body, the doctor found the abdomen full of blood. The spleen was practically shattered and ruptured. The cause of death of Badri, in the opinion of the doctor, was the gun shot injuries of the received by the deceased which caused the rupture of the spleen, and these injuries were sufficient in the ordinary course of nature to cause death. 3. Three persons, namely, Heta, Gopi and Sarupa were arrested but after investigation, the police authorities put up a challan only against Heta and Gopi During the investigation, on information given by Gopi under section 27 of the Evidence Act a gun (Art. 1) was discovered but the police authorities did not send the gun for ballistic examination and, therefore, it cannot be connected with the act of murder. Both Heta and Gopi, after inquiry, were pent to the court of sessions to stand their trial Gopi was charged for an offence under section 302 read with section 34 Indian Penal Code.
(3.) THERE are only two eye witnesses, namely, P.W. 6 Rameshwar & P.W. 7 Matola who had seen the occurrence and therefore they were produced by the prosecution to fasten the guilt of committing murder of Badri on Gopi. These witnesses however deposed at the trial that Heta was with Gopi at the time when the gun was fired by Gopi, but the learned trial Court did not find any other circumstance on the record which may give rise to an inference that Heta, in any manner shared the common intention with Gopi to commit the murder of Badri Heta was, therefore, acquitted by the trial court and Gopi alone was convicted under section 302 Indian Penal Code.;