(Delivered by Hon'ble Aniruddha Singh, J.)

1. Present Jail Appeal has been filed by appellant Ram Charan against judgment and order dated 31.1.2012 passed by Additional District & Sessions Judge, Court No.8, Basti in Sessions Trial No. 96 of 2006 (State of U.P. Vs. Ram Charan and two others) arising out of Case Crime No. 124 of 2006, under Sections 302/34 I.P.C., Police Station Valtarganj, District Basti whereby appellant Ram Charan has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- and in default, six months' additional imprisonment.

2. Prosecution story in brief is that in the night at 12.30 on 8/9.3.2006, Jagram (deceased) husband of complainant Smt. Sitapati who was watchman in a brick kiln was sleeping there; Ram Charan (appellant) assaulted Jagram with spade (Fawada), he received four incised wounds and died resultantly. Tulasi Ram (P.W.-2) and Rajendra (P.W.-7) and some other persons tried to catch but he fled away. This incident was seen by two persons namely Tulsi Ram (P.W.2) and Rajendra (P.W.7) and F.I.R. was lodged for the offence under Section 302 IPC on 9.3.2006 at 6.30 a.m. by Smt. Sitapati (P.W.1) wife of deceased. Specific role of assault with spade (fawda) was assigned to the appellant and that was recovered at the pointing out of appellant.

3. On the basis of written report (Ext. Ka-21), case was registered and investigation was started. Prepared recovery memo of spade (Fawda) is exhibited as (Ext. Ka-9); recovery memo of blood-stained & plain soil and piece of 'kathari' and blanket as (Ext. Ka-6), Panchayatnama as (Ext. Ka-2), Chik F.I.R. as (Ext. Ka-3), G.D. entry as (Ext. Ka-4), postmortem report as (Ext. Ka-7), site plan as (Ext. Ka-8) and charge sheet as (Ext. Ka-10).

4. After inspection of site, site plan was prepared with index which is exhibited as (Ext. Ka-8). One bloodstained, spade (fawda)' was recovered at the pointing out of the accused. After completing all formalities, charge-sheet was submitted which is exhibited as (Ext. Ka-10).

5. After taking cognizance by the concerned Magistrate on the charge-sheet, the case was committed to the court of Sessions for trial and after transfer it was received in the court of Additional District & Sessions Judge, Court No. 8, Basti. On 17.4.2007 charge under Section 302 IPC was framed against the accused Ram Charan to which he denied and claimed for trial.

6. Co-accused Ram Surat and Tilak were summoned under Section 319 Cr.P.C. and on 14.8.2008 charge under Section 302/34 IPC was framed to which they denied and claimed for trial but they have been acquitted after trial.

7. In order to prove the charge on behalf of prosecution besides documentary evidence, Court examined nine witnesses in all i.e. P.W.1 Sitapati, P.W.2 Tulasi Ram, P.W.3 Shiv Poojan Chauhan, P.W.4 Ram Dev, P.W.5 Ramesh, P.W.6 Bechan Lal, P.W.7 Rajendra Prasad, P.W.8 Doctor Vishwa Deepak Srivastava and P.W.9 Ashok Kumar Mishra.

8. After closure of prosecution evidence, statements of accused-persons under Section 313 Cr.P.C were recorded. They specifically stated in their statements that they are innocent, they have not committed any offence and have been falsely implicated.

9. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced the accused appellant for the offence under Section 302 IPC. Hence this appeal.

10. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his in-ability to engage private counsel, Court appointed Sri Sita Ram Sharma as Amicus Curiae.

11. Heard Sri Sita Ram Sharma, learned Amicus Curiae for the appellant and Sri Ratnendu Kumar Singh and Sri B.D. Nishad, learned A.G.A. for the State.

12. Learned Amicus Curiae submitted that recovery of spade (fawda) was falsely plant