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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.

13. It is borne out from the testimony of Krishna Kumari PW-1 that she was residing at Kamla Nagar in a rented quarter (the place of incident) when this occurrence took place. Her children, Km. Kusum PW-5 (daughter of the deceased) and Pushpendra accused (brother of Krishna Kumari) were also residing with her in the aforesaid quarter. She was the wife of Mahipal Constable who was at that time posted at Mathura. It is gathered that her husband and deceased were posted together at Jagner in the past. For sometime, they remained posted together at Agra also. During the days of the incident, Netrapal Singh was posted at P.S. Chobia, District Etawah and had visited her. In fact, he used to stay with her at Agra on his frequent visits. Unfolding the prosecution story, she stated that Netrapal Singh was lying on a cot in the second room of the quarter when she was cleaning utensils in the courtyard. Kusum was at the door. A stove was on in the second room on which rice was being cooked. She asked Pushpendra to put off the stove. Instead of putting it off himself, he (Pushpendra) asked Netrapal Singh to do that and when Netrapal Singh was attending to it, he (Pushpendra) fired shots on Netrapal Singh who shouted that Pushpendra had shot him. She then rushed to that place from the courtyard. It is, however, in her testimony that she herself did not see Pushpendra firing but did see him making his escape good through the main door of the quarter. At that time Pushpendra had revolver of Netrapal Singh in his hand. She had then raised alarm. She, however, denied that she had illicit relations with Netrapal Singh.

17. It is, however, obvious that Krishna Kumari PW-1 has tried to suppress in her testimony before the trial Court that she was having illicit relations with Netrapal Singh since long. It is very clear from both the dying declarations of the deceased. She also admitted in her cross-examination that Netrapal Singh was not related to her. Maipal Singh (husband of Krishna Kumari) and Netrapal Singh deceased were earlier posted together. Mahipal Singh was at inferior post as compared to him. Netrapal Singh developed illicit intimacy with Krishna Kumari and fixed her in a rented quarter at Agra, visiting her frequently from the place of his posting in District Etawah to carry on his illicit relations with her. To lure her and silence Krishna Kumari's husband Mahipal Singh, he even allowed Krishna Kumari's brother Pushpendra accused also to live at Agra to pursue his studies, footing all his expenses.

27. In the case at hand, the explanatory part of the second dying declaration of the deceased in the form of his statement under Section 161, Cr. P.C. made to the Investigating Officer is no way inconsistent with the first dying declaration recorded by the Magistrate. The second dying declaration was fairly long where the deceased gave the entire background of the incident.

28. In the present case, the deceased Netrapal Singh was leading an immoral life. Krishna Kumari PW-1 was equally a lady of easy virtues having illicit relations with him, though she was a married woman and her husband was alive. Netrapal Singh was keeping Krishna Kumari as his concubine in rented quarter at Agra, bearing all her expenses as also of her brother Pushpendra living there. Netrapal Singh had come to Agra the day before the incident from the place of his posting at Etawah. True, Pushpendra accused was under deep obligation of the deceased Netrapal Singh as the latter was bearing his expenditure and had allowed him to live with his (Pushpendra's) sister at Agra to pursue his studies. To certain extent, he (Pushpendra) had reconciled to the ground reality that his sister Krishna Kumari was being kept by Netrapal Singh as his concubine. But mental knowledge on the part of the accused-Pushpendra about the relations of the deceased with his sister Krishna Kumari did not mean that he (deceased) could shamelessly exhibit or demonstrate his illicit intimacy with her regardless of privacy and even in the face of his grown up brother (accused). It was like rubbing salt in his wounds. The explanatory part of the second dying declaration of the deceased clearly indicates that on the day of the incident, Netrapal Singh did something so objectionable or obscene while cutting jokes with Krishna Kumari within the eye sight of Pushpendra that blood quickly rushed to his (Pushpendra's) head and instantaneously picking up loaded revolver of Netrapal Singh from beneath the pillow in the outer room he opened repeated shots on him. The conduct of Netrapal Singh with Krishna Kumari (sister of Pushpendra) was so obnoxious and obscene within the sight of Pushpendra that it was shameless in extremity and crossed all limits. Pushpendra accused, real brother of Krishna Kumari, could not bear it and was deprived of the power of self-control by such grave and sudden provocation occasioned by the obscene, offensive and objectionable behaviour of Netrapal Singh with his real sister within his sight. Picking up the revolver under the pillow, he opened successive shots on him (Netrapal Singh) and ran away with his revolver. Only truth seems to have guided Netrapal Singh in making clean breast of the real happening in his second explanatory dying declaration in the form of his statement under Section 161, Cr. P.C. when he was struggling between life and death with very little hope to survive.