The main legal point established in the judgment is the application of the principles of murder and culpable homicide not amounting to murder under the Indian Penal Code, and the circumstances under which death penalty can be imposed.

JUDGMENT :

S. L. KOCHAR, J.

1. This judgment shall also govern the disposal of Criminal Appeal No. 187/2010 filed by the appellant/accused Birju against the impugned judgment of conviction and sentence.

2(i). The learned Sessions Judge, Indore/trial Court submitted the Criminal Death Reference No. 1/2010 for confirmation of death sentence passed by the impugned judgment dated 16-2-2010, whereby the learned Sessions Judge has convicted the appellant Birju for the offence under section 302 of the Indian Penal Code (for short "the IPC") and sentenced him to death in Sessions Trial No. 19/2010. The appellant Birju has also been convicted under section 27 of the Arms Act, 1959 and sentenced to RI for three years with fine of Rs.1,000/-. In default of payment of fine, he shall suffer additional RI for one month.

2(ii). The appellant/accused Birju has also preferred Criminal Appeal No. 187/2010 being aggrieved by the impugned judgment of conviction and sentence passed in S.T. No. 19/2010 dated 16-2-2010 by learned Sessions Judge, Indore, as mentioned hereinabove.

3(i). Laconically the prosecution case, as put forth before the trial Court against the appellant, is that on 13-12-2009 at about 8:15 P.M. complainant Babulal (PW-1) was standing at the grocery shop of Kamal Bansal (PW-2) for purchasing some goods. He was holding his daughter's son Arman aged one year in his arms. PW-4 Jagdish was also standing in front of the said shop. Appellant Birju, resident of same locality known as Rustam Ka Bagicha, came over there on his motorcycle and after parking it reached to complainant Babulal and questioned him as to why he was standing there. Babulal replied that he had come to purchase some Kirana, at that juncture appellant demanded Rs.100/- from him for consuming liquor. Babulal expressed his inability to give the money, on which appellant abused him in the name of his mother and took out country-made pistol from his pocket and shot it at the right temporal area of infant Arman. Upon hearing the report of fire, persons of the locality gathered on the spot including Rakhi, the daughter of complainant, her aunt-in-law Sharda Bai and several other inhabitants of that locality. The son-in-law of complainant, named Jeevan, took Arman to hospital and Babulal immediately reached at the police station and lodged the report (Ex.P/1).

3(ii). Police stepped into investigation and Station House Officer Shri Mohan Singh Yadav (PW-12) reached on the spot and prepared spot map (Ex.P/2), blood stained shirt of complainant Babulal was also seized through seizure memo (Ex.P/3). Empty cartridge, motorcycle and used bullet were seized from the spot, vide seizure memo (Ex.P/6). After preparing inquest report (Ex.P/8), the dead body was sent for post-mortem examination and the same was conducted by PW-10 Dr. A. K. Langewar. The post-mortem report is Ex.P/11 (it appears that because of typing mistake, in the impugned judgment Post-mortem Report is shown as Ex.P/13).

3(iii). The appellant was nabbed and from his possession pistol fixed with magazine was seized through seizure memo (Ex.P/5), and same was sent for examination to Head Constable, D.R.P. Line, Indore, who after it's verification, gave report (Ex.P/12). The seized articles were sent for examination to Forensic Science Laboratory and its report is Ex.P/18-A. The mobile unit of Forensic Science, district Indore, also reached on the spot and it's senior scientist Dr. Sudhir Sharma prepared report (Ex.P/17), after spot inspection. Investigation officer recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge-sheet against the appellant for the offences under sections 302, 327 and 398 of the Indian Penal Code, and under sections 25 and 27 of the Arms Act, 1959.

4. Appellant refuted the charges and claimed trial. He has not ex