( 1 ) THIS is an appeal preferred by the appellant accused against the judgement and findings dated on 20-9-80, recorded by Shri K. K. Joshi, Sessions Judge, Datia, in Sessions Trial No. 11/80. The appellant has been convicted under Section 302 of the I. P. C. and sentenced to undergo life imprisonment.

( 2 ) THE appellant, along with two others (Prabhu and Gopi) was jointly charged and tried for an offence of murder of Surjan, during the intervening night of 21st and 22nd September, 79. It is alleged that Surjan sustained a gun shot injury on his stomach and died next day, on 23-9-79, while on way to Indargarh Hospital.

( 3 ) THE prosecution case, in brief, is that during the intervening night of 21st and 22nd September, 79, deceased Surjan, Amarsingh, Prabhu and Gopi planned to commit theft/robbery in the house of Damru (P. W. 7), situated in village Kaseru ka pura. It is said that Tussibai w/o Damru got up and she raised alarm. Damru also awakened and saw only one miscreant from the roof. He, then threw Gummas (pieces of bricks towards him and he contends that one Gumma might have hit the miscreant. On hearing the cry other villagers also got up and came out of their houses and chased the miscreants who were four in number. Seeing the villagers coming towards them one of the miscreants fired, which hit to one of their companions who was way behind from them.

( 4 ) NEXT day morning, on 23-9-79, Damru (P. W. 7) along with Chowkidar of Neemdanda proceeded to the police station Diloripur to lodge a report, but on the way they met with Sub-Inspector, G. R. Ahirwar (P. W. 14) to whom they reported the matter, which he recorded as Delhi Nalish (Ex. P/4 ). MUNNALAL (P. W. 8), a boy, while coming back from his school, in the way near the field saw a person in injured position, who was demanding water, but due to fear he ran away and narrated the incident to Gujrajsingh (P. W. 5) and Shokat (P. W. 6), who along with other villagers went to the place where the alleged injured was lying, and enquired him. He made statement before the villagers and said his name Surjan. He, further, disclosed that he along with Gopi, Prabhu and Amarsingh had gone to Kaseru-ka-pura for committing theft/robbery. At that time Amarsingh was armed with 12 bore gun while others were armed with Farsa and lathi. They all entered the house of Damru, in furtherance of their common object of theft/robbery, but on alarm by the villagers all of them ran away from the spot. His three associates have left him way behind. When the villagers were chasing, Amarsingh fired them which hit Surjan on abdomen. He fell down and his associates were fled away.

( 5 ) P. W. 14, G. R. Ahirwar, after recording Dehati Nalish (Ex. P/4) went to the place where Surjan was lying in injured position. Then, he took his statement (Ex. P/13) under Section 161 of the Cr. P. C. Thereafter, the injured was sent for medical examination and treatment. On the advice of doctor, Naib Tehsildar, B. R. Singh (P. W. 12) took dying declaration of Surjan. Since his condition was serious, he was shifted to Indargarh Hospital, but in the way he died. Dr. B. K. Shrivastava (P. W. 9) conducted post mortem and found one smell hole on the foreside of abdomen 31/2 lateral to umbhices rounded in shape, size 1/2" x 1/2" blackening round the wound was present. His report Ex. P/7 is on record.

( 6 ) AFTER completion of investigation, a challan for offences under Sections 458 and 302/34 I. P. C. was filled against appellant Amarsingh along with Prabhu and Gopi.

( 7 ) DURING trial, the appellant-accused abjured the guilt and pleaded false implication. The trial Court examined P. W. 1 Purshottam Singh, P. W. 2 Raghuraj Singh, P. W. 3 N. R. Kushwaha, P. W. 4 Munnalal, P. W. 5 Gujraj Singh, P. W. 6 Sopat, P. W. 7 Damru, P. W. 8 Ranchhor, P. W. 9 Dr. B. K. Shrivastava, P. W. 10 Bharatsingh, P. W. 11 Ram Sahay, P. W. 12 B. R. Singh, P. W. 13 Karansingh and P. W. 14 G. R. Ahirwar. No defence witness has been