THAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. Than Singh has filed this appeal against his conviction under Section 302, IPC and sentence of imprisonment for life imposed by the Sessions Judge, Rampur, by judgment and order dated 14-7-1979 passed in S. T. No. 137 of 1978.

(2.) THE case of the prosecution, in brief, is that the appellant Than Singh and PW 2 Ram Singh are real brothers, being sons of DW 1 Sohan Lal, PW 1 Smt. Phula Devi is the wife of the deceased Mohan Lal, who was real brother of Sohan Lal aforesaid. PW 6 Balak Ram is the sister's husband of Sohan Lal. THE house of the deceased Mohan Lal and his brother Sohan Lal are adjoin ing to each other in Mohalla Sahukara. It is alleged that at about 7. 30 a. m. on 10-3-1978 Mohan Lal was getting the foundation dug for construction of the boundary wall of his house which was objected to by the appellant Than Singh. Mohan Lal said that he was making the construction on his own land and he had no right to raise any objection. On this Than Singh gave two blows with Tabal on the head of Mohan Lal who fell down unconscious on the spot. A report about the incident was lodged by Smt. Phula Devi on to-3-1978 at 8 a. m. at P. S. Bilaspur which is two furiongs from the place of occurrence. THE injured was taken to Primary Health Centre, Bilaspur, where he was medi cally examined at 9. 15 a. m. and the doctor found two injuries on his head Mohan Lal, however, succumbed to his injuries and the case was converted to Section 302, IPC.

(3.) PW2 Ram Singh has stated that he lives in the same compound. At about7. 30 a. m. on 10-3-1978 Mohan same compound. At about 7. 30 a. m. on 10-3-1978 Mohan Lal was digging foundation which was objected to by the appellant. Thereafter the appellant assaulted the deceased by giving two blows with Tabal. It may be noticed that this witness is the real brother of the appellant and nothing material has come out in his cross-examination which may discredit his testimony. The only thing elicited by the defence is that his grandfather Tulsi Ram had executed a will of his property in his favour but the said land was still in the possession of his grandfather. How ever, we are of opinion that the mere fact that the grand father of the appellant had executed a will in favour of this witness cannot lead to an inference that he would falsely implicate his real brother in a murder case. In our opinion he is a truthful and reliable witness.