Arya, J. -- 1. This appeal, under section 374 CrPC, at the instance of the convict Vikram alias Manoj Jat s/o Govind Singh Jat is against the judgment dated 5.1.2008 passed by the Special Judge (Atrocities), Gwalior in Special Case No.12/2001. The appellant is convicted under section 148 IPC and sentenced to suffer 2 years rigorous imprisonment with fine of Rs.1,000/- as well as under sections 302/149 IPC for life imprisonment with fine of Rs.1,000/- besides, in default to undergo six months further imprisonment for each offence and direction that both the jail sentences shall run concurrently.

2. As per prosecution story, on the date of incident, i.e., on 3.6.2000 at about 8:00 a.m. deceased Balkishan belonging to “Batham community”, while going to attend Water Shed Committee meeting being President, was sitting at the Chabutara (Platform) near the bus stand at village Tiholi. In the close vicinity, at the check post of Forest Department, prosecution witness Buddharam Batham (PW3) was also sitting. Preetam, Mahesh (PW2) and Naval Kishore (PW4) had arrived at the bus stand just before occurrence of the incident after unloading cement at Stop Dam. At that time, a bus coming from Behad had come and stopped. Accused persons, Govind Singh, Vinod, Pratap Joshi, Dablu Joshi, Kamal Ojha and present appellant Vikram alighted from the bus. Appellant Vikram armed with Mouzar gun, Govind Singh armed with double barrel 12 bore gun, Vinod armed with single barrel 12 bore gun and the remaining three accused persons were armed with Katta (country made pistol). After getting down from the bus, all the accused persons took their position behind tractor-trolley standing on the other side of the road. Appellant Vikram fired a gun shot at the deceased, Balkishan which hit on his left hand. Deceased, Balkishan to save his life ran towards the Village. Accused, Vikram along with 5 co-accused chased the deceased Balkishan firing gun shots. Deceased Balkishan entered nearby house of Ratanlal (PW1). Accused Vikram along with 5 other co-accused also entered the house of PW1 Ratanlal. Accused persons dragged Balkishan in the courtyard of the house and fired several gun shots piercing through forehead, left eye, below ear lobe ¼duiVh½ and chest resulting into death of Balkishan. Thereafter they fled away.

3. PW3 Buddharam at about 9:00 a.m. lodged FIR (Exhibit P-3) at the Police Station Utila situated at about 4 kms from the place of incident. Case was registered under sections 147, 148, 149 and 302 IPC and also under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act of 1989”). As regards death of Balkishan, marg report (Exhibit P-4) was also prepared. The investigation was carried out by B.S.Yadav, Station House Officer (PW6). Spot map was prepared vide Exhibit P-6. As per seizure memo (Exhibit P-5), the following items have been seized:

^^¼1½ ckjg cksj jkm.M dk [kks[kk ftuds isans ij FkksM+k yky isaV yxkA 'kfDreku ,Dlizsl ykUx jsUt fy[kk gS izdj.k ds ?kVuk LFky ds LFkku 1¼Mh½ vkedksM ij iM+k feyus ijA

¼2½ ,d ihry dk jkm.M ftuds isns ij 8 ,e-,e-ds-,Q- 98 fy[kk gS fcdk gS tks ?kVuk LFky jru yky okFke ds edku uacj 9 ds bZ LFkku dh [kisjsy ds edjs esa iM+k feyus ijA

¼3½ ?kVuk LFky jru yky ckFke ds vk¡xu tgk¡ e`rd ckyfd'ku dk 'ko iM+k gS 'ko ls fudys [kwu dh ekStwnk feV~VhA

¼4½ ?kVuk LFky 'ko ds ikl dh lknk feV~VhA

¼5½ e`rd ds 'ko ds flj ds uhps tehu esa xM+h gqbZ ,d xksyh ckjg cksj dh pkj fjDlh xRrs dh rFkk IykfLVd dh dkys jax dh Vksih tks pkj vaxqy tehu esa x<h gqbZ [kqnokus ls izkIr gksus ij rhuks vkbVeksa dks i`Fkd~&i`Fkd~ tIr fd;k x;kA

uksV % mijksDr eky i`Fkd~&i`Fkd~ ekSds ij tIr fd, x, rFkk dV~Vs------ ¼ukWV fdy;j½ fd, x,A**

4. Besides, Dr. Vijay Kumar Diwan (PW5) has also found 40 pellets, one plastic rim and one disc from the right lung of the deceased, Balkishan. As per medical report, the deceased Balkishan sustained fire arm injuries on his body. The nature of injuries were suff