J. C. Gupta, J. - (1.) -Order dated 3.2.1983 passed by the then Addl. Sessions Judge, Deoria in Sessions Trial No. 348 of 1978 convicting both the appellants under Section 302 read with Section 34, I.P.C., and sentencing them to life imprisonment is under challenge in this appeal.
(2.) THE incident, which led to the prosecution of the appellants, occurred at about 5.30 in the morning on 12.7.1978. Both the appellants are real brothers being sons of Sheo Balak Misra. It is said that on the aforesaid date and time, appellants Prem Shanker and Hari Shanker armed with knife and lathi respectively arrived at the 'Gotha' of the deceased Mohan Mishra and Hari Shanker started beating Mohan with lathi and also asked his brother Prem Shanker to kill him, whereupon appellant Prem Shanker assaulted Mohan with knife. On the cries of Mohan, his brother R. P. Mishra, P.W. 1 who was washing his hands at the Hand Pump installed in the east of 'Gotha' of Rama Kant Mishra, rushed to the scene of occurrence. THE cries also attracted Ramakant Mishra, P.W. 2, Suresh Mishra, P.W. 4, Shiv Sahai and Vibhuti Mishra. Ramakant Mishra tried to rescue Mohan but he too was assaulted by Prem Shanker with knife. Mohan Mishra fell down on the ground. THE witnesses succeeded in apprehending appellant Prem Shanker along with the knife with which he assaulted Mohan and Ramakant, however, appellant Hari Shanker succeeded in making his escape good. THEreafter Ram Pyarey Mishra and other witnesses proceeded to police station Kotwali along with Mohan Mishra and appellant Prem Shanker on tractor trolley of Gangotri Mishra. Before they could reach police station, Mohan Mishra died on the way. R. P. Mishra, P.W. 1 prepared F.I.R. Ex. Ka-1 in his own hand writing and presented the same at police station Kotwali at 6.30 a.m. on the same day. Appellant Prem Shanker and blood stained knife, Ex. 1 recovered from him were handed over to police at the police station, in respect of which memo Ex. Ka-2 was prepared by Head Moharrir, P.W. 6 who also prepared Check report and registered the case in general diary. S.I. Harish Nath Singh, P.W. 5 was present at the police station when the F.I.R. was lodged. He took up investigation and recorded the statement of first information at the police station. S.I. Radhey Shyam Tewari conducted inquest on the dead body of Mohan Mishra which had been brought to the police station by first informant and others. THE dead body was then sent for post-mortem examination with constables Ram Asrey and Rang Nath. After recording the statements of Shiv Sahai and Suresh Mishra, P.W. 4, the Investigating Officer reached the place of occurrence along with first informant and witness Shiv Sahai. He made inspection of the scene of occurrence and prepared site plan Ex. Ka-13. THE place where blood was found has been shown by letter 'A' in the site plan. Hari Shanker appellant was arrested on the same day. Injured Ramakant Mishra was, however, interrogated on 13.7.1978 and after computing the investigation on 15.7.1978 charge-sheet Ex. Ka-15 was submitted against both the appellants. Dr. Shyam Lal Vermpal, P.W. 3 medically examined Ramakant Mishra on 12.7.1978 at 9 a.m. and he found only one injury : Lacerated wound 1/2' 1/4' muscle deep on root of left middle finger on outer side. Injury report of Ramakant Mishra is Ex. Ka-3. In the opinion of Dr. Vermpal injury was simple, fresh and caused by blunt object. Dr. Vermpal also conducted autopsy on the dead body of Mohan Mishra on 12.7.1978 at 12 noon and following ante-mortem injuries were found : (1) Incised wound 2" 1/4" skin deep on right side forehead 1" above the right eye brow and 1-1/2" away from right ear margins clean cut, gaping present, blood clots present and wound was horizontally placed. (2) Incised wound 1" 1/4" muscle deep on middle of left arm margins clean cut, gaping present, blood clots present. (3) Punctured wound 1-1/4" 1/2" chest cavity deep on right side chest 1" outer to mid line chest and 4" away and above to right nipple, lying vertically, margins clean cut gaping present, blood clots present. In the internal examination pleura was found congested and cut underneath injury No. 3, right lung had also a cut mark 3/4" 1/2", pulmonary vessels had also been cut. The chest cavity contained fresh blood about 520 ml. Stomach was empty while large intestines contained gases and faecal matter. In the opinion of the doctor death was due to shock and haemorrhage as a result of ante-mortem injuries. The post-mortem report is Ex. Ka-4.
(3.) THE motive for assaulting Mohan Mishra as alleged in the first information report was that on 10.7.1978 Prem Shanker appellant had made an attempt to have carnal intercourse with Ramesh son of Mohan Mishra, deceased and Rakesh told this fact to his father. Mohan deceased accosted accused Prem Shanker whereupon the latter threatened him with dire consequences. To substantiate charges against the appellants, prosecution produced 6 witnesses. They are P.W. 1 R. P. Mishra, first informant and younger brother of deceased Mohan Mishra ; P.W. 2 Ramakant Mishra, an eye-witness P.W. 3 ; Dr. Shyam Lal Vermpal, who proved injury report of R. P. Mishra and post-mortem report of deceased Mohan Mishra ; P.W. 4 Suresh Mishra, an eye-witness ; P.W. 5 Harsh Nath Singh, Investigating Officer and P.W. 6 Head Moharrir Nazir Uddin.;