JUDGMENT M.C. Jain, J.
1. This appeal has been lodged by the sole appellant Vijai Kurmi against the judgement and order dated 17.3.1982 passed by Sessions Judge, Ballia in S.T. No. 182 of 1981 whereby he has been convicted under Section 302 I.P.C. and sentenced to life imprisonment.
2. The relevant facts as revealed from the F.I.R. and the evidence adduced in the court may be narrated thus: The deceased was one Pramila aged about 19 years-daughter of the first informant Shrimatia. The incident occurred in between the night of 30.4./1.5.1981 in village Dularpur at the house of the deceased within Police Station Narhi, District Ballia. The oral F.I.R. was lodged by the deceased's mother at 10.00 A.M. on 1.5.1981. The accused-appellant Vijai Kurmi was related to Paltan Pradhan of village Dularpur wherein the informant Shrimatia wife of Sheo Murat resided. He occasionally used to visit the house of the said Paltan Pradhan. He had evil eye on the deceased and wanted to have illicit connection with her but she had spurned his designs. He, therefore, started spreading rumour to defame her by saying that she was pregnant. Before the incident, she had been married but her second marriage (Gauna) had not taken place. As such she was residing at her parental house. Some two days before the incident, the accused Vijai Kurmi had come to the house of Paltan Pradhan. The mother of the deceased had gone to the house of Paltan Pradhan and questioned him about the rumour that he was spreading regarding her daughter. There was hot discussion between the two. In the meantime, the deceased had also arrived at the well to fetch water. She also joined her mother in the quarrel with the accused. The accused had then offered threats. However, the deceased and her mother had returned back to their house.
3. At the time of the incident in the eventful night, the informant, her deceased daughter Pramila and her son Ajai were lying on cots in their sehan after taking their meals. The informant was, however, only lying on her cot and was not sleeping. A glowing lantern was hanging on the wall. The accused-appellant Vijai Kurmi came their and proceeded towards the cot of her daughter Pramila. The informant challenged him whereupon he commanded her to keep quiet. He then opened fire on Pramila from close range. The informant's son Ajai Kumar also witnessed the incident. On the alarm, the witnesses arrived. He was seen running. Shiv Pujan PW 3 was one of such witnesses who saw him fleeing.
4. On the lodging of the F.I.R. by oral narration at the Police Station, a case was registered by Head Constable Eizaz Ahmad PW 7. The investigation was started by S.I. Bhanu Pratap PW 8 to be concluded by Rama Shanker Dwivedi PW 4. After recording the statement of the informant, he proceeded to the spot where he prepared inquest report of the dead body of the deceased. The dead body, after being sealed, was sent for post mortem through constable Satish Chandra Singh PW 5. The post mortem over the dead body of the deceased was conducted by Dr. R.N. Srivastava PW 2 on 2.5.1981 at 9.45 A.M. The deceased was aged about 19 years. The following ante mortem injury was found on her person:
(i) Round circular lacerated gunshot wound 1/2" in diameter over right back (wound entry) on posterior axillary line 3" below and lateral to inferior angle of right scapula. Wound pointing upwards and medially into the thorasic cavity burning and tattooing present over the skin around the wound. Margins lacerated and inverted.
5. The death had occurred due to shock and haemorrhage as a result of injury sustained.
6. The accused pleaded not guilty.
7. The prosecution in all examined eight witnesses. Shrimatia PW 1-mother of the deceased and Ajai Kumar Singh (younger brother of the deceased) PW 6 were the eye-witnesses. Shiv Pujan (uncle of the deceased) PW 3 residing nearby had seen the accused running from the spot after committing this crime. Rest of the evidence was more or less of formal nature including that of medical and investigation aspects.
8. The evidence of the prosecution commended itself to the trial judge who recorded the impugned judgement of conviction and sentence which has been assailed by the appellant through this appeal.
9. We have heard Sri G.S. Chaturvedi, learned Senior Advocate from the side of the accused-appellant and Sri M.C. Joshi, learned A.G.A. from the side of the State. The record of the lower court has been summoned before us which we have carefully perused.
10. The arguments of the learned Counsel for the accused-appellant are that there was no source of light at the spot; that the witnesses were not at all reliable and that the accused had simply been roped in on the basis of suspicion.
11. We first deal with the question of source of light at the spot. Of course, the incident took place in, night time at the house of the deceased, but availability of light of glowing lantern was very much there which stood well explained. It is not acceptable that the crime was committed under the cover of darkness. After all, the accused-appellant had also to find out the target ( deceased) amongst those sleeping there and it could not be possible if there prevailed complete darkness. Moreover, there was consistent testimony of Shrimatiya PW 1 and her son Ajai Kumar Singh PW 6 that a glowing lantern was there. Otherwise also, it is common to keep some artificial light in the night in village houses to guard against any untoward incident and to keep away scorpions, snakes, etc., which actively and safely move about and operate in darkness. Not only this, Ajai Kumar PW 6 was a student of class VI. His testimony was that he was reading in the light of lantern whereafter he had gone to bed. It was argued by the learned Counsel that his examinations were already over and there could be no occasion for him to study in the night. Indeed, the fact of examinations being over did not mean that students were to bid a complete good bye to the habit of reading before going to bed. Ajai Kumar Singh PW 6 categorically stated that he was reading geography book a little before the incident. The site plan shows that Investigating Officer had also found at point "D" an iron nail in the wall at the height of about 4 1/2' and the surrounding area was blackish, meaning thereby that that was the place for hanging the glowing lantern. So, the argument to doubt the availability of light at the spot cannot be accepted.
12. Now we come to the criticism against eye-witness account. We have carefully scrutinised the testimonial assertions of the witnesses. Shrimatiya PW 1 and Ajai Kumar Singh PW 6 were the most natural witnesses of the incident which took place in their house in night time. At the time of the incident, Shrimatiya PW 1, her deceased daughter Pramila and son Ajai Kumar Singh PW 6 were sleeping in Sahan after taking their meals. Shrimatiya PW 1 emphatically stated that she was only lying at her cot and was not sleeping; the accused-appellant Vijai Kurmi came there and proceeded towards the cot of her daughter Pramila, she challenged him whereupon he commanded her to keep quiet and instantaneously he fired on Pramila from close range. She was corroborated in material particulars by Ajai Kumar Singh PW 6 ( brother of the deceased) who was sleeping at the nearby cot.
13. The testimony of above two witnesses was in conformity with medical evidence, showing burning and tattooing around the gunshot wound caused to deceased i.e. it was a close range shot resulting in the death of the deceased. Shiv Pujan PW 3 had seen the accused running. It was there in his testimony that he was sleeping at his door when he woke up on hearing the shot. He rushed, flashing his torch and saw the accused coming out from the direction of the house of Shrimatiya PW 1 and running towards northern side. The site-plan shows that he had his Khaprail house in the south west of the house of Shrimatiya PW 1. The learned Counsel for the accused-appellant argued that he could not recognize the accused-appellant while he was running to the northern side. The argument does not stand a close scrutiny. Instantaneously waking up and running with flashing torch, he could well see the accused-appellant while coming out with pistol from the house of the victim. Of course, he is the brother of husband of Shrirnatiya PW 1, but he spoke only what he saw with his own eyes. Otherwise, he could also pose himself to be an eye-witness. He did not do anything of the kind. The Investigating Officer Rama Shanker Dwivedi PW 4 had inspected his torch and found the same to be in working condition. The fard in this behalf was also prepared (Ext. Ka-21). It was natural that he, while sleeping at his door, woke up on hearing the shot, instantaneously ran with flashing torch and spotted the accused-appellant running with a pistol.
14. The F.I.R. was lodged by Shrirnatiya PW 1 by oral narration, obliterating the possibility of any consultation or deliberation. The accused-appellant had a clear motive to commit this crime. The deceased was a married girl. But her Gauna ( second marriage) had not yet been performed and, therefore, she was living at her paternal home. The accused-appellant was also married in the same village in which the deceased was married. It was there in the testimony of Shrirnatiya PW 1 that the accused's Nanihal was in the family of Jhuri of the village of incident. His Bua was also married in the same village to village Pradhan Paltan and he frequently used to come there. The own mother of the deceased emphatically testified that the accused wanted to develop illicit connection with the deceased, but she had spurned his overtures. Therefore, there could be no doubt that Shrirnatiya PW 1 and Ajai Kumar Singh PW 6 knew the accused from before. It was there in the testimony of Shrimatia PW 1 that he had spread the rumour that she (deceased) was pregnant and it came to be known through one Shivdahin. Knowing that, she had questioned Yijai Kurmi accused in this regard two days before the incident when he had come to the house of the village Pradhan Paltan and exchange of hot words had taken place. Her daughter Pramila had also joined her in hot discussion with the accused. He had become angry and they had then returned to their house. Indeed, the accused-appellant felt frustrated and humiliated because of the deceased not falling prey to his libidinous design and scheme. We note that a suggestion was made to Shrimatiya PW 1 that Sasuralwale of the deceased refused to take her because of the alleged rumour of her pregnancy. This suggestion showed that there was some sort of rumour of alleged pregnancy and Shrimatiya PW 1 (mother of the deceased) deserved to be believed that chagrined by the refusal of the deceased to have carnal intimacy with him, he was the architect of such rumour and that she (joined by her deceased daughter) had questioned him two days before the incident for spreading such false rumour and hot discussion had taken place. We should also say as a passing reference that post mortem report of the deceased did not show that there was any trace of pregnancy in the corpse of the deceased. Obviously, therefore, the alleged rumour was without foundation. It was definitely the accused who was spreading such false rumour.
15. We come to the conclusion on the threadbare analysis of the prosecution evidence judged in the light of attending circumstances that ocular testimony of natural witnesses Shrimatiya PW 1 and Ajai Kumar PW 6 was perfectly believable that it was the accused-appellant who shot the deceased dead on the given time and place. He had been seen running also from the spot by Shiv Pujan PW 3. The witnesses very well knew him from before and there could be no question of mistaken identity. The accused-appellant had strong motive to commit this crime as his sexual overtures towards the deceased were strongly spurned by her. He had then baselessly started spreading rumour of her being pregnant and two days before the incident there had been exchange of hot words between him on the one hand and Shrimatiya PW 1 (joined by her deceased daughter) on the other on this score. There was sufficient source of light at the spot. It was a case of single accused. It is wholly baseless to say that he was roped in only on the basis of suspicion. His guilt under Section 302 I.P.C. for committing the murder of hapless young lady was proved to the hilt. He has rightly been convicted under Section 302 I.P.C. with the sentence of life imprisonment.
16. In view of the above discussion, we dismiss this appeal and affirm the conviction of the accused-appellant under Section 302 I.P.C. with the sentence of life imprisonment.
17. At the time of admission of this appeal on 23.3.1982, the accused-appellant Vijai Kurmi was released on bail. The Chief Judicial Magistrate, Ballia shall cause him to be arrested and lodged in jail to serve out the sentence of life imprisonment. He is not resident of the village where the incident occurred. Rather, his address as per the memo of appeal is Vijai Kurmi son of Jodhan Kurmi, Resident of Village Jagdishpur, Police Station Bhanwarkol, District Ghazipur. It has also come in evidence that he has relations in the village of incident (Dularpur) in the family of one Jhuri and Paltan, the then village Pradhan. His Sasural is in village Kukra (Bihar). The deceased Pramila was also married in that village. The purpose of our so stating here is that Chief Judicial Magistrate, Ballia shall make all out efforts to trace out the accused-appellant Vijai Kurmi on the basis of all these details to get him arrested and lodged in jail at the earliest to serve out the sentence of life imprisonment.
18. Certify the judgement to the lower court within a week. The compliance shall be reported by the Chief Judicial Magistrate, Ballia within two months from the date of receipt of a copy of this order.