SURENDRA SINGH, J. - (1.) THE challenge in this appeal is the judgment and order dated 31st March, 1982 passed by VI Additional Sessions Judge, Deoria in ST No.371 of 1981 (State Versus Ram Bharosa and others), convicting and sentencing the Appellant under Section 364 read with Section 34 IPC for 7 years rigorous imprisonment and under Section 302 read with Section 34 IPC for life imprisonment. FACTS
(2.) THE allegations of the prosecution in brief are as follows: Incident happened on 23.6.1981 in early morning. In this incident one Smt. Surja (the Deceased) aged about 65 years was murdered and her grand son Subhash aged about 10 years has witnessed the incident and lodged the FIR. Subhash (the Informant) lodged the FIR at about 9:30 hours on the same day i.e. 23.6.1981 which was registered as Case Crime No.148 of 1981 under Sections 302 and 201 IPC at Police Outpost Ekauna, Police Station Rudrapur, District Deoria. The Deceased and the Appellant, Ram Bharosa were the resident of Village Kauliya (Dharmpur) of Police Station Rudrapur, District Deoria. The Deceased, Smt. Surja was the widow of Prithvipal. She had no son, rather she had only three daughters. All of them were married and were living in their matrimonial houses. It is alleged that Subhash (PW 3), a boy of 10 years used to look after his grandmother and sometimes he stayed with her in the village. The Accused-Appellant is the son of Jaipal who is brother of husband of the Deceased and there was some dispute between the parties regarding agricultural land. It is alleged that on the date and time of the incident Subhash (PW 3) was staying with the Deceased. In the night of 22/23.6.1981 both of them slept on one cot in the courtyard of the house. As per the allegation of FIR, the Appellant reached in the courtyard and forcibly lifted the Deceased and took her towards west along with two other unknown companions who were armed with latthi and spear. Subhash, who was sleeping on the same cot, identified the Appellant in the moonlight and he objected but he could not do anything on account of threat given to him. When Subhash saw in the morning the pool of blood and trail of blood in western side of the house through which he reached upto river. Thereafter on the advice of co-villagers he went to the Police Outpost Ekauna, Police Station Rudrapur, District Deoria and narrated the entire incident to one Ram Sajeewan Yadav constable (PW 2) and accordingly the chick (Ext.Ka-2) was prepared. In consequence thereof, case was registered in GD (Ext. Ka-3) at the same time. On 24.6.1981 at about 10:30 hours, the dead body of the Deceased was recovered from the river. SI, Kailash Mohan Srivastava (PW 8) prepared inquest report (Ext. Ka-7) of the dead body and other papers. Thereafter the dead body was sealed and sent for postmortem through constables Alakh Niranjan Singh and Dularey Singh. The Deceased was about 65 years of age and died more than 2 days before. The body was highly decomposed. Regor mortis was passed away both upper and lower limbs, abdomen was distend. Skin peeled of all over the body. Foul smell was present. The following ante-mortem injuries were found on her person: (i) Penetrating wound 1½ cm x ½ cm x bone deep left side neck near branchis; (ii) Penetrating wound 1½ cm x 1½ cm x chest cavity deep front side of chest between both breasts; (iii) Penetrating wound 1½ cm x 1 cm x chest cavity deep front of manobra sternum; (iv) Penetrating wound 1½ cm x ½ cm x 1 cm deep left side of chest just on the nipple; (v) Multiple penetrating wound in area of 4cm x 3cm part of the right side chest, just below the right breast each is 1cm x ½ m x chest cavity deep; (vi) Penetrating wound 1½ cm x 1 cm x abdominal cavity deep right iliac fossa, 5 cm above iliac crest through which a loop of intestine came out; (vii) Penetrating wound 2½ cm x 1 cm x abdominal cavity deep, 3 cm above the injury no.6 through which intestine came out; (viii) Multiple abrasion in an area of 5 cm x 3 cm left side of shoulder; (ix) Penetrating wound 1 cm x ½ cm x bone deep on the left knee; (x) Penetrating wound 1½ cm x ½ cm x bone deep on the dorsum of the left palm. On external examination sternum was found punctured. Both lungs were found lacerated, membranes were also found lacerated. Intestines were found badly lacerated and congested. Faecal matter was coming out. Bladder was full. Abdomen was empty. In the opinion of Doctor, death of the Deceased was caused due to shock and hemorrhage as a result of injury.
(3.) THE IO investigated the case and submitted charge sheet against the Appellant and two others, namely, Ram Adhar and Tufani on 6.7.1981 (Ext. Ka-15). On the basis of charge sheet (Ext. Ka-15), the CJM, Deoria summoned the Accused and committed the case to the court of sessions where it was registered as ST No.371 of 1981 (State Versus Ram Bharosa and others). Additional Sessions Judge, Deoria on 13.11.1981 charged the Appellant and two others for the offence punishable under Section 364 read with Section 34 IPC, 302 read with Section 34 IPC. and 201 IPC.;