JUDGMENT :

Vivek Kumar Birla, J.

1. Heard Sri Ratan Singh, learned AGA appearing for the appellant-State of UP, Sri Pradeep Kumar, learned counsel appearing for the accused-respondent and perused the record.

2. Present government appeal has been preferred against the judgment and order dated 26.07.1983 passed by the Learned Special Judge, Fatehpur in Session Trial No. 104 of 1983 (State vs. Ram Autar Kori), arising out of Case Crimes No. 172/1982, under Section 302 IPC, Police Station Khakhreru, District Fatehpur.

3. Prosecution story, in brief, is that on 07.12.1982 the complainant-Shiv Saran Singh along with his brother Babu Singh went to their Gram field situated the western side of the village and at about 1:00 pm (noon), they saw the mother and sister of the accused Ram Autar were plucking Gram leaves in their field. Babu Singh asked them not to pluck the same as the plants were too small but they did not listen and continued to plucking out the gram leaves. On this, Babu Singh inflicted two slaps to the sister of accused-Ram Autar and banished her from his field. On this the mother and sister of the accused returned to their house abusing him. After taking round of the field while Shiv Saran Singh and Babu Singh were coming back to their house for taking bath and meals, when they reached near the house of Ram Autar, accused Ram Autar surrounded them and asked Babu Singh as to why he slapped his sister and took out country made pistol from his waist and fired on the chest of Babu Singh. The alleged incident was witnessed by neighbours Dasrath, Shiv Mohan, Govardhan and others. Ram Raj and Ram Ballaiya also saw the occurrence. When they tried to catch hold the accused, he reloaded the country made pistol, threatened the witnesses and ran away towards west. On receiving gun shot injury, complainant brother Babu Singh fell on the ground and thereafter the injured was placed on the Chabutara of Goverdhan where he died. The accused shot complainant's brother at 2.00 pm. Thereafter, a first information report of the incident was lodged at police station-Khakreu on the same day at 3.00 pm. in the presence of Investigating Officer, who recorded the statement of the complainant under Section 161 Cr.P.C. The investigating Officer proceeded to place of occurrence and inspected the dead body and sealed the same. Site plan was prepared and after completing investigation a charge-sheet under section 302 IPC was submitted against the accused Ram Autar.

4. In support of prosecution case, PW-1-Shiv Saran Singh, PW-2-Dashrath, PW-3-Station House Officer-Madan Singh and PW-4 Dr. Satish Chandra Srivastava were produced and examined before the Court below.

5. Apart from other formal documents, site plan is Ext. Ka-9, recovery memo of bloodstained and plain earth is Ext. Ka-10, recovery memo recovering one empty cartridge recovered from the place of occurrence is Ex. Ka-11, charge-sheet is Ext. Ka-13 and Post mortem report is Ex. Ka-14.

6. PW-1-Shiv Sharan Singh, who was the eye witness of the incident, in his statement had stated that he works in Maya Press, Allahabad and used to do the same job during the days of the incident and he had come home on leave. He further stated that deceased Babu Singh was his younger brother and at the time of incident he was working as Constable in the Police Department and was posted in Allahabad and was also on leave during those days. He further deposed that his house and the accused's house is on the same road and when we come from our field, the accused house comes first and thereafter we would reach to his own house. He further stated that the residence of Ram Autar was in front of the house of Dashrath Dhobi and thereafter there is residence of Goverdhan. While narrating the incident he stated that on 07.12.1982 at about 11.30 am when he and his younger brother Babu Singh had gone to their field they found that the mother and sister of the accused Ram Autar were plucking gram leaves, which was objected to by h