JUDGMENT :

1. We have heard Sri Amit Tripathi for the appellant; Sri Amit Sinha, learned AGA, for the State and have perused the record.

2. This appeal is against the judgment and order dated 21.02.2008, passed by Sessions Judge, Etah in Sessions Trial No.655 of 2003, arising out of Case Crime No.62 of 2003, police station Bagwala, district Etah, whereby the accused-appellant has been convicted under Section 302 IPC and punished with imprisonment for life and fine of Rs.5,000/-coupled with a default sentence of two years R.I.

INTRODUCTORY FACTS

3. The FIR of the case was lodged by Virendra Singh (PW-1) vide written report (Exb.Ka-1) dated 23.07.2003 scribed by Rahees Ahmad (not examined), which was registered as Case Crime No.62 of 2003 at police station Bagwala, district Etah on 23.07.2003 at 18.20 hrs. The GD entry (Exb.Ka-3) of the written report and the chik FIR (Exb.Ka-2) was prepared by PW-3 at the time and date specified. The allegation in the FIR is to the effect that informant’s sister-in-law Anima (the deceased) was married to Narendra. Narendra used to work as a labour in Delhi whereas his elder brother Raj Kishore @ Pappu (the accused-appellant) used to stay in the village and was addicted to liquor. It is alleged that the appellant used to harass the deceased Anima for money and used to pester her for money sent by her husband. According to the allegations, few days before the incident, Narendra (husband of the deceased) had sent money to Anima. The accused-appellant asked Anima for the money. When Anima refused, she was assaulted. On 23.07.2003 i.e. the date of the incident, the informant (PW-1) and his wife Anita (PW-2) came to know that the accused-appellant was assaulting Anima. On getting information, the informant and his wife Anita, at about 2.00 pm, rushed to Anima’s house. There they noticed that the accused-appellant was coming out of the hut on the first floor of the house and running away. When they went up-stairs, they noticed that Anima’s body was lying with injury marks on her neck. The FIR was lodged by alleging that the accused-appellant has killed Anima.

4. After registration of the report, inquest was conducted at the spot. After completing the inquest by about 22.00 hrs on 23.07.2003, inquest report (Exb.Ka-5) was prepared by PW-5. The body of the deceased was sealed and dispatched for autopsy. The autopsy was conducted by PW-4 at about 2.30 pm on 24.07.2003. The autopsy report (Exb.Ka-4) notices :

External Examination :

Well built body. Rigor Mortis passed off from upper extremities and present in lower extremities. Face, neck and upper part of chest congested. Abdomen distended (sic) bloated.

(i) Abraded contusion 2 cm x 1.25 cm, right side of neck anteriorly on upper part. Underlying tissues congested.

(ii) Two abraded contusions in a row on left side of neck upper part anteriorly. Each 1.75 cm x 1.25 cm. Underlying tissues congested.

Internal Examination :

Larynx/Bronchi – Congested. Both cornua of hyoid bone fractured.

Lungs – Congested.

Abdomen – Stomach full of un-identified food material.

Small Intestine – chyme and gases.

Large Intestine -gases and faecal matter.

Cause of Death -death is due to asphyxia as a result of throttling on account of AMI.

Estimated time of death – about one day before.

5. Investigation was conducted by PW-5 who visited the spot, conducted inquest, prepared papers for autopsy, prepared site plan (Exb.Ka-9) at the behest of PW-2, recorded statement of witnesses and, after carrying out various stages of investigation, submitted charge-sheet (Exb.Ka-10) against the accused-appellant. After taking cognizance on the charge-sheet, the case was committed to the court of session.

6. The court of session vide order dated 11.02.2004 framed charge of the offence of murder punishable under Section 302 IPC against the appellant. The accused-appellant pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

7. During the course of trial, the prosecution examined as many as six witnesses, thei