V. N. Varma, J. - (1.) THIS is an appeal from the judgment and order of Sri R. P. Jain, Sessions Judge, Jhansi, by which he convicted the appellant (Swami Prasad) under section 302 IPC and sentenced him to imprisonment for life.
(2.) THE person who lost his life in this case was one Gajraj Singh. He was a resident of village Pasora, P. S. Todi Fatehpur, district Jhansi. THE appellant is his next-door neighbour, his house being just towards north of his house. Just a wall separated their houses. It appears that a Kachcha room existed in the north west portion of the house of the deceased touching the wall separating the two houses. According to the prosecution this Kachcha room did not rest on this wall. THEre was a wall running parallel to the south of this wall and it was on this wall that the Kachcha room rested on the northern side. THE deceased wanted to construct this Kachcha room into a pucca one. He, therefore, demolished this Kachcha room and first constructed pucca walls on the foundation of the old walls existing towards east, west and south. THE last wall that he was to construct was towards north. He demolished the old wall towards north on 13th and 14th June, 1972 and thereafter he was getting the foundation dug for constructing a new wall in its place. This work was to continue on 16th June, 1972 also. It is said that on 16th June, 1972 at about 7 A. M. the deceased was digging foundation and removing earth for constructing the northern wall when the appellant came there armed with an axe. He asked the deceased not to remove earth from the foundation of the wall. The deceased told him that the wall belonged to him and he was within his right to remove earth from its foundation. The appellant then started hurling abuses on him. He asked the appellant not to abuse him. The appellant felt irked at the conduct of the deceased and he gave an axe blow on his head. The deceased fell down unconscious on the ground. The appellant then ran away from there. This incident was witnessed by a few persons including Ram Swarup (PW 1). Ram Swarup (PW 1) took Gajraj Singh to P. S. Todi Fatehpur on a bullock-cart. There he lodged a written report at 11. 30 A. M. On the basis of that report a case under section 324/504 IPC was registered against the appellant. Thereafter, the police sent Gajraj Singh to district hospital Jhansi for medical examination. There he was examined by Dr. P. 0. Gupta at 4. 30 P. M. He found an incised wound 3" x 1/4" with clean cut edges on the top of the scalp. Gajraj Singh died on the next day at 9. 30 P. M. After the death of Gajraj Singh the case was converted into one under section 302 IPC. The post-mortem-examination on the dead body of Gajraj Singh was conducted by Dr. P. P. Ajwani on 18-6-1972 at 5 P. M. He found the following ante mortem injury on the dead body. "Incised wound 2-1/2" x 1/2" x bone deep on the scalp parieto-frontal region of scalp about 4" above the bridge of the nose. The margins of the wound were clean cut and were gaping."
(3.) EXAMINING internally Dr. P. P. Ajwani found (i) clotted blood in between the scalp and skull bone in parieto frontal region (ii) linear fracture of the frontoparietal bone of the scalp and (iii, clojted blood on the cerebral hemisphere in fronto-parietal region. According to the autopsy surgeon death was due to shock and haemorrhage as a result of injury to the brain.;