R. C. Lahoti, J. - (1.)The accused has been held guilty of an offence punishable under Section 302, IPC and sentenced to undergo imprisonment for life by the Court of Sessions Judge, Bilaspur. An appeal preferred by him was dismissed by the High Court. This appeal has been filed by special leave.
(2.)Nathu Lal (PW-1) and Ram Ratan are two real brothers. Baldau Ram (PW-2), Kamta (PW-4) and Radhey Shyam - the deceased (who died in the incident) are all sons of Nathu Lal, the elder of the two brothers. Ram Ratan, the younger brother, had six sons of whom one had died earlier. Shyam Sunder, the accused-appellant, is the third one out of the five surviving sons of Ram Ratan. At one point of time Nathu Lal and Ram Ratan were living together, also having joint cultivation. Long before the incident, Nathu Lal and Ram Ratan had separated by effecting a partition of their residential house as also of the agricultural land. They are living separately in adjoining houses and their agricultural lands are also situated adjoining to each other. However, the partition had resulted into the feelings between the two brothers and their respective family members being strained so much so that at about 4-5 years prior to the date of this incident, there was another incident, which had resulted in proceedings under Section 107, Cr. P.C. being drawn up against both the parties. Baldau Ram (PW-2), Kamta (P-4), Radhey Shyam - the deceased and their one more brother Jai Lal, in all the four brothers, were also facing prosecution under Section 325, IPC for causing injuries to Shyam Sunder - the accused-appellant and his mother Ram Kali. A few days before the death of Radhey Shyam there was yet another incident in which the accused-appellant and a few others on his side were accused of throwing stones on the house of the deceased and hurling abuses on the inmates of the house.
(3.)On 21-7-1985, at about 5.30 a.m. Baldau Ram (PW-2) had gone to his field for grazing cattle. Sowing operation was going on. There were a few labourers on his field. He was returning at about 7.30 a.m. through a path passing by the side of the field of the accused-appellant. There Baldau Ram saw the appellant standing armed with a 'Tabbal' and his father armed with an axe. On seeing Baldau Ram, the appellant tried to come close to him. Baldau Ram was scared by the menacing attitude of the appellant and apprehending some danger, he returned back to his field. By this time his brother Kamta (PW-4) had also reached the field to take work from the labourers. Baldau Ram narrated what had happened with him to his brother Kamta (PW-4). Kamta advised Baldau Ram not to go to the village by the path which passes by the side of the field of the appellant and instead choose a different path. It appears that there is not much of distance between the two paths which are available to be used for reaching the village from the field of Baldau Ram. It also appears that the path which leads to the field of Baldau Ram from the village and passes by the side of the field of the accused is crossed by a nala (culvert) before the path reaches the field of the accused. Baldau Ram while going from his field of the village, through the different route which he had chosen saw the appellant Shyam Sunder jumping into the nala. He also saw his brother Radhey Shyam coming out of the nala. At this point of time the appellant-Shyam Sunder dealt blows by 'Tabbal' on the person of Radhey Shyam. The first blow landed at the upper region of right ear of Radhey Shyam whereupon he fell down. The appellant dealt two further blows landing on the shoulder and throat of Radhey Shyam.