JUDGMENT :

1. Heard Shri Noor Mohammad, learned counsel for the appellant and Shri L.D. Razbhar & Prem Shanker Mishra, learned A.G.A.s for the State.

2. The instant appeal is directed against the judgement and order convicting the appeal and sentencing him to life imprisonment, which judgement has been passed on 02.12.18 by the Additional Session Judge, Fast Track Court No.2, Bhadohi at Gyanpur in Session Trial No.103 of 2003 (State Vs. Babulley) under Section 302 I.P.C., Police Station-Bhadohi, District-Sant Ravidas Nagar, Bhadohi, convicting and sentencing the appellant to life imprisonment. A Fine of Rs.10,000/-have also been imposed and in default thereof, two years further imprisonment has been ordered.

3. Sessions Trial No.103 of 2003 pertains to an incident which took place on 27.07.2003 at about 9:00 a.m. in village Jagdishpur. The first information report in this regard was lodged at 11:00 a.m. on the same date at Police Station-Bhadohi Kotwali, District-Sant Ravidas Nagar.

4. As per the first information report lodged by Laldei Devi w/o Vijay Shanker, she alongwith her husband-Vijay Shanker was proceeding from their house towards their field at about 9:00 a.m.. When they reached in front of the house of one Chauthi, Babulley-appellant emerged from his house which was situated at some distance and hit Vijay Shanker on his head with a rambha, resulting in his death on the spot.

5. It is also stated in the first information report that on the previous night, Vijay Shanker and Babulley had gone to village Katauna to consume liquor and there, they had an argument. It is on the account of the said argument that Babulley assaulted Vijay Shanker. The incident is alleged to have been witnessed by Paras Nath s/o Munni Lal, Ram Pyare s/o Sakal Dhadi and some other persons.

6. After investigation, a charge sheet was submitted and the matter was committed and tried.

7. As many as 10 witnesses were examined on behalf of the prosecution. They are P.W.-1 (Laldei Devi w/o deceased), P.W.-2 (Ram Pyare) one of the eye witness mentioned in the first information report, P.W.-3 (Nand Lal) the alleged witness of the recovery of the iron rod i.e., rambha (the weapon used in the crime), P.W.-4 (Vijay Nath) the scribe of the first information report, P.W.-5 (Dr. Sunil Kumar Srivastava), who conducted the post mortem report of the deceased, P.Ws.-6 to 10 are the police personnel including the Investigating Officer, the Sub-Inspector, who carried out the inquest.

8. Ram Saran s/o Mathura, is the sole witness examined in defence, apart from the statement of the accused recorded under Section 313 Cr.P.C.

9. P.W.-1, the first informant has in his oral testimony supported the version given in the first information report. She has also stated that she is illiterate and that the first information report was scribed by Vijay Nath on her dictation and thereafter, she put her thumb impression, thereon. She has also stated that the first information report wrongly records that the incident took place in front of the house of appellant-Babulley. In fact, it took place in front of the house of Chauthi and that the discrepancy in the F.I.R. is on account of her mental agitation due to death of her husband. She has also stated that her husband was fond of consuming liquor. It is also stated in her statement in cross-examination that she and her husband were proceeding from their house with rice sapplings, on foot. She has also denied the suggestion that the deceased was assaulted by other persons.

10. P.W.-2 Ram Pyare has stated that he was returning from his field. When he reached near the house of Chauthi, Babulley emerged from his house armed with a iron (rambha) and assaulted the deceased on his head with the rear portion or its handle. Vijay Shanker fell on spot and expired. Babulley ran away with the rambha. He has denied the suggestion that there was tension between him and Babulley. He has also been elaborately cross-examined as regards the houses situated in