IMPORTANT POINTS
Distinction between sections 302, 301 Part I & II, IPC discussed.

JUDGMENT

Swatanter Kumar, J.-The present appeal is directed against the judgment of a Division Bench of the High Court of Judicature at Allahabad dated 15th May, 2007. Vide the impugned judgment, the High Court affirmed the judgment of conviction and order of sentence passed by the VIII Additional Sessions Judge, Mainpuri awarding life imprisonment to the appellant Rampal Singh for an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘the Code’).

2. Necessary facts, eschewing unnecessary details, can be stated at the very outset.

3. According to the prosecution, one Jograj Singh and Chhatar Singh were uterine brothers. Anurag Singh, Rajesh Singh and Amar Singh were sons of Jograj Singh. Ram Kumar Singh (deceased) was the son of Rajesh Singh. Rampal Singh (the appellant) and Ram Saran Singh (DW1) are the grand sons of Chhatar Singh. Rampal Singh and the deceased both were serving in the Army as Lans Naik. Two months prior to the date of incident, the deceased had come to his village on leave from Agra where he was posted. He erected a Ladauri on his vacant land. After expiry of the term of leave, he went back to join his duty. Rampal Singh had also come on leave. He had broken the Ladauri constructed by the deceased and started throwing garbage on the vacant land. Five days prior to the date of occurrence, the deceased had again come to his village on leave. Upon expiry of the term of his leave on 13th February, 1978, he was returning to Agra on his duty. Meanwhile, Amar Singh, uncle of the deceased came to his house with another person of village Dhaniapur and they all were chatting. Rampal Singh, the appellant, also reached there. The deceased enquired from him about the reason for demolishing his Ladauri and throwing garbage on his land. Some altercation took place between them. They even grappled with each other. The deceased threw the appellant on the ground. Ram Saran also reached the spot and he, along with Amar Singh, separated the appellant and the deceased. Ram Saran, who was examined in the Court as DW1 also started talking to the deceased who was standing alongside a pillar on his verandah. The appellant went to his house and climbed on the roof of Muneshwar armed with a rifle and from there he asked his brother Ram Saran to keep away as he wanted to shoot the deceased. Consequently, the deceased remarked as to whether the appellant had the courage to shoot him. On this, the appellant shot at the deceased with his rifle and ran away. Ram Saran and others helped the injured and called a village compounder who filled the injury with dough (Aata). The deceased then was carried to Bewar and from there he was brought to Military Hospital in Fatehgarh where he got admitted at 9.00 p.m. on the same day.

4. In the hospital, he was examined by Major Dr. Laxmi Jhingaran, PW3, who prepared the medical report. She found the bullet wound in the right side in the abdomen of the deceased and prepared an injury report (Exhibit Ka-2). Upon inquiry, the deceased told her that the appellant had shot at him at 2.00 p.m. Resultantly, she prepared a report and sent it to the Station Officer, Kotwali Fatehgarh (Exhibit Ka-3) for taking necessary action. On receiving this information, Ram Sharwan Upadhyaya, PW4, SI of Kotwali Fatehgarh proceeded to the Military Hospital. He made inquiry from the deceased who told him that the appellant had fired at him with his rifle with the intention to kill him. In furtherance to this, PW4 made a report (Exhibit Ka-6) to the Station Officer giving result of his inquiry and asked him that a case under Section 307 of the Code needs to be registered. Upon this basis, the First Information Report (FIR) (Exhibit Ka-7) was prepared at 11.55 p.m. on that day by Constable Shiv Karan Singh who also registered the case as G.D. No.14 (Exhibit Ka-8).

5. On 13th February, 1978 itself, the deceased had made a dying declaration which was recorded by Lieutenant Colonel Basu (Exhibit Ka-4