Point of law: Prosecution has miserably failed to adduce any evidence linking the 'pharsa' allegedly recovered on the pointing out of Kripa Ram (A2) from the river bed with the commission of the murder of the deceased. The 'pharsa' admittedly was not sent to the forensic lab for chemical examination. Similarly, blood allegedly recovered from the place where the deceased had fallen after being shot while he was sitting on the platform and the empty cartridges allegedly recovered from the place of incident were not sent for chemical examination

JUDGMENT :

B.K. Narayana, J.

Heard Sri R. S. Pandey, assisted by Ms. Ruchita Jain, learned counsel for the appellants and Sri J. K. Upadhyay, learned A.G.A. for the State.

2. This criminal appeal has been preferred by Matadin @ Chapole (A1) and Kripa Ram (A2) against the judgment and order dated 31.05.1988 passed by Vth Additional Sessions Judge, Jhansi in S.T. No. 68 of 1985, State Versus Matadin and another, whereby both the appellants were convicted and sentenced to imprisonment for life u/s 302/34 I.P.C.

3. Record shows that Kripa Ram (A2) died during the pendency of this appeal and this appeal stood dismissed as abated qua Kripa Ram (A2) by the order of this Court dated 16.07.2018.

4. Thus, the challenge to the impugned judgment and order is now confined on behalf of Matadin @ Chapole (A1) alone.

5. The prosecution story in short is that deceased Lakhan was a highly arrogant, hard core, anti-social element who was involved in several criminal cases including cases of burglary, dacoity etc. and several anti-social elements of village- Atarsua bore grudge against him. It is alleged that on 08.03.1985 at about 1.30-2.00 p.m., few residents of village- Atarsua had gathered in front of the house of Rati Ram to celebrate Holi. Deceased Lakhan was singing Holi (phag) songs while his son P.W.3 Hari Om, his cousin P.W.2 Ram Narayana and others were standing nearby and enjoying the Holi songs. While they were singing Holi songs, Matadin @ Chapole (A1) and Mehngu armed with country-made pistols and Kripa Ram (A2) armed with 'pharsa' came to the spot suddenly and Matadin @ Chapole (A1) and Mehngu fired with their country-made pistols at Lakhan, causing firearm injuries on his head, when Lakhan tried to get up, the accused caught hold of him and Kripa Ram (A2) dealt 'pharsa' blows to him causing injuries on vital parts of his person. Lakhan died on the spot instantaneously and P.W.1 informant Motilal who described himself in the written report of the incident as deceased's "khaandani bhai" although before the trial court, he had not deposed that he was "khaandani bhai" of the deceased, also arrived on the spot upon hearing the noise and found his brother Lakhan dead with injuries on various parts of his body. P.W.3 Hari Om, deceased's son who was present near the dead body apprised him with the details of the incident and P.W.1 informant Motilal got the written report of the incident (Ext.Ka.1) scribed by one P.W.4 Manohar and proceeded straight to P.S.- Gursarain, which was at a distance of about 9 kms. from the place of the incident along with the written report.

6. On the basis of the written report (Ext.Ka.1) given by P.W.1 informant Motilal at P.S.- Gursarain, District- Jhansi, Case Crime No. 12 of 1985 u/s 302 I.P.C. was registered against the appellants and one Mehngu. Check F.I.R. (Ext.Ka.11) and the relevant G.D. Entry (Ext.Ka.12) were prepared by Head Constable Jagdish Awasthi.

7. P.W.7 S.O. Subedar Singh took over the investigation of the case and proceeded to the place of the occurrence immediately and reached there at 5 p.m. After holding the inquest on the dead body of Lakhan, he got prepared the inquest report (Ext.Ka.4) and other related documents whereafter he handed over the dead body of Lakhan to Constable Subedar Singh and Constable Shiv Gulam Pandey along with postmortem requisition memo (Paper no. 17-A). He seized samples of blood-stained and plain earth from the crime scene vide seizure memo (Exts.Ka.5 and Ka.6). He also seized two empty cartridges (material Ext.12) and missed cartridge (material Ext.14) vide recovery memo (Ext.Ka.5). After inspecting the place of occurrence, he prepared its site plan (Ext.Ka.7).

8. Postmortem on the dead body of Lakhan was conducted by P.W.5 Dr. B.D. Mangal, Medical Officer, Primary Health Centre, Mauranipur on 09.03.1985 at 2.45 p.m. He prepared and proved the postmortem report of the deceased as (Ext.Ka.2) and noted following ante-mortem injuries on the person of Lakhan :-

(a) Firearm