PUSHPENDRA SINGH Vs. STATE OF UP

JUDGEMENT

(1.) The appellant is Pushpendra Singh who has preferred this appeal against the judgment and order dated 31 -1 -1981 passed by Sri M. Wahajuddin, the then Sessions Judge, Agra in Sessions Trial No. 152 of 1980. He has been convicted under Sections 302 and 379,I.P.C. with sentence of life imprisonment for the former and two years' rigorous imprisonment for the latter. Both the sentences have been ordered to run concurrently.

(2.) The background facts leading to the trial may be set forth insofar as they are necessary for the decision of the appeal. The incident took place on 7-12-1979 at about 12 O' Clock in the noon at A Block Quarter No. 759, Kamla Nagar, P.S. New Agra, District Agra. The F.I.R. was lodged the same day at 1 p.m. by Head Constable Raghunath Singh. The deceased was one Netrapal Singh. He was then posted as S.O. of P.S. Chobia in District Etawah and had come to Agra, staying in the aforesaid quarter which was in occupation of Smt. Krishna Kumari wife of Mahipal Singh, Clerk Constable. At that time Kusum PW-5 daughter of Netrapal Singh was also residing with Smt. Krishna Kumari receiving education. The accused- appellant Pushpendra Singh, too, was receiving education at Agra and was residing there, being the brother of Smt. Krishna Kumari. According to the prosecution, this quarter had two rooms. After taking meals in the courtyard, Netrapal Singh, S.I. was lying on the cot in the second room in the inner side while his revolver was lying in the outer room under the pillow. At about 12 O' Clock in the noon, taking out the revolver, Pushpendra Singh-accused fired a number of shots injuring Netrapal Singh. He then ran away through the main door with the revolver. Smt. Krishna Kumari took Netrapal Singh, S.I. to S.N. Hospital, Agra where he was admitted and treated. On that very day, Sri Shasi Kant Sharma, Addl. City Magistrate, PW-10 recorded the dying declaration of Netrapal Singh. The Investigating Officer Pawan Kumar PW-6 also recorded the statement of Netrapal Singh the same day under Section 161, Cr. P.C. which was relied upon as the other dying declaration of the deceased. The prosecution also relied upon verbal dying declaration of Netrapal Singh alleged to have been made before Raghunath Singh, S.I. (the then Head Constable at police outpost Kamla Nagar of New Agra) who had lodged the F.I.R. at P.S. New Agra at 1.00 p.m. that very day. Netrapal Singh ultimately died on 21-1-1980. The case was first registered under Sections 307 and 379, I.P.C. but was later on converted under Section 302 and 379, I.P.C. on the death of Netrapal Singh.

(3.) A search for the accused continued from 7-12-1979 to 25-12-1979 but he could not be apprehended. He appeared in the Court of Chief Judicial Magistrate, Agra on 16-1-1980.