Sikri, J. - (1.) This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad accepting the reference by the learned Sessions Judge and dismissing the appeal of Husaina There was a difference of opinion between Khare, J. and Hari Swarup, J., and the matter was referred to the third Judge, Gyanendra Kumar, J. who agreed with the opinion of Khare, J., and held that the offence of murder had been brought home to Husaina.
(2.) The prosecution case in brief is that Smt. Chhoti and her son Khalil lived in village Sirai. A wall divided their house from the house of Husaina appellant before us. This wall had fallen down and Smt. Chhoti and Khalil wanted to reconstruct the wall in the morning of December 15, 1970, but Husaina took objection to this reconstruction and there was an altercation between them. Smt. Chhoti, Khalil and Husaina are khumhars. Mst. Chhoti and Khalil then proceeded to the village pond for digging earth. At about 12.30 p.m. Husaina also reached the pond and seeing Smt. Chhoti and Khalil digging the earth told them that they would not be permitted to build the wall. Husaina then gave blows on the head of Chhoti with his spade. Khalil got up and tried to save his mother but he was also struck by Husaina with the spade. Some persons chased Husaina but could not catch him. Smt. Chhoti died at the spot. Khalil who had become unconscious due to those injuries was taken to the police station on a tonga by Allahdiya, P.W. 8, and thereafter admitted into the hospital The First Information Report was lodged by Allahdiya, P.W. 8, at 1.30 p.m. at the police station Mainather, which was about 5 miles from the place of occurrence, and the investigation followed. The accused was committed to Sessions. The appellant's defence was that he was not present in the village Sirsi on the date of occurrence and had been implicated in the crime due to enmity.
(3.) The post-mortem examination of Smt. Chhoti showed that she had sustained the following ante-mortem injuries: 1. Incised wound 2" x 1/4" x bone deep cutting the bone underneath on right side back of head. 2. Incised wound 1 1/2" x 1/2" x muscle deep on right arm outer side in middle. 3. Incised wound 2" x 1" x bone deep. Right scapula cut underneath on right side back 4. Incised wound 1/2 x 1/2 " x bone deep on the top of left index fingers. Dr. A. P. Singh, P.W. 3, who performed the post-mortem examination on the body of Mst. Chhoti deposed that the following injuries were found on internal examination: "Right occipital bone was found Cut under injury No. 1. There was contusion over the membranes of the brain under injury No 1. There was clotted blood in an area of 1 1/2" x 1" under injury No. 1. The bone of the right shoulder was found cut under injury No. 3." He opined that "cutting of bone shows that the weapon was very heavy." He was recalled by the High Court and stated before it as follows: "The spade, Ex. 1, which is alleged to be the weapon of attack is now being shown to me. All the four external injuries could have been caused with the sharp side of this weapon. These injuries could not have been caused with the remaining three sides of this weapon." He did not agree with the suggestion that with the sharp edge of the weapon, which is the lower edge of the weapon, no incised wound could be caused;