Palok Basu, J. - (1.) TWO brothers Dwarika alias Lalla and Keshav Dubey sons of Ram Kripil have preferred this appeal against their conviction u/Sec. 302/34 IPC sentencing them imprisonment for life, as awarded by the third Additional District Judge, Gorakhpur in Sessions Trial No 135/78.
(2.) ONE Vishwanath and two appellants were prosecuted under Section 302/34 IPC on the charge that in furtherance of their common intention the three accused caused fatal lathi injuries to Sarjoo Pandey at about 8.30 A. M. in village Bhandaro, Police Station Chilawa Tal, district Gorakhpur. The informant of this case is Dinesh Chandra son of deceased Sarjoo Pandey. According to the prosecution case, he was accompanying his father on the day of the incident upto the Railway Station Jagatbela, wherefrom they would have proceeded to their different destination. When the two had reached near about the pipal tree in village Bhandaro, the three accused (two appellants and Vishwanath) were present there alongwith lathis. Keshav alias Lalla Dubey incited the others saying that the deceased would not be compromising the matter. Let us kill him today. At this, all the three belaboured Sarjoo Pandey with their lathis causing him injuries, consequent upon the hue and cry, raised, Shiv Kumar Shukla, Arindam Dubey, Ram Kriksha Tiwari and Gabboo Yadav reached the spot and said why the accused were beating teacher Sarjoo Pandey deceased. At this the accused ran away. The prosecution case further is that the victim was carried by the informant alongwith two other persons namely Badal Yadav and Shobhi Yadav, who took the victim to the district hospital Gorakhpur, where the victim expired around 10 30 A. M. Consequently, Dinesh Chandra lodged FIR at P. S. Kotwali district Gorakhpur on 12-8-77 at 11 A. M. Lost Mortem examination was conducted on the dead body of Sarjoo Pandey on 13-8-77 at 2 P. M. by Dr. P. N. Awasthi PW 5 who found the following ante-morten injuries on the person of the deceased. "Antemortem injury- 1.Contusion with swelling 4" x 3" on lower half outer right upper arm. 2.Contusion with swelling 4-1/2" x 3" on lower half outer part left upper arm. 3.Abraded contusion 3-1/2" x............part of left knee. 4.Seven oblique hardled contusion on back coming from right to left side varying from 8" x 1" to 5" x 1" On internal examination, fracture lower 1/3 right humerous, multiple fracture lower 1/3 left humerous was found. Mo other internal damage was noted in the Post-Mortem Examination Report. However, the opinion as to the cause and manner of the death, as is apparent from the said report, is that the death was caused due to shock and internal haemorrhage as a result of the injuries described. After due investigation, Chargesheet was submitted by PW 4 Laxmi Narain Yadav against two appellants whereas co-accused Vishwanath was apparently absconding and as such the charge sheet against the said accused was filed as absconder. After due committal proceedings, the accused were committed to the Court of Sessions and the Sessions Judge has, believing the prosecution case, convicted and sentenced the appellants as stated above.
(3.) BOTH the accused have pleaded not guilty and have attributed their false implication due to enmity. They have examined two defence witnesses Udbhav Nath Tiwari and Amir Ahmad in order to prove that one of the witness Shiv Kumar Shukla had filed an affidavit in the Court of the Chief Judicial Magistrate, Gorakhpur, denying the witnessing of the incident as alleged in the First Information Report. In order to prove the case, the prosecution examined three eye witnesses namely Dinesh Chandra Pandey, PW 1, Shiv Kumar Dubey PW 2 and Gabboo Yadav PW 3. The second set of witnesses were formal in nature and they consisted of PW 4 Station Officer, Laxmi Narain Yadav who is one of the Investigating Officers, PW 5 Dr. P. N. Awasthy who conducted the Post Mortem examination on the dead body of Sarjoo Pandey, deceased, I. P. Singh PW 6 is the doctor who was posted in the District Hospital Gorakhpur, who had examined the victim when alive, Sub-Inspector Rajeshwar Shukla PW 7 is also one of the Investigating Officers and Head Constable Kailash Nath and Head Constable Sri Prakash PW 8 and 9 are deposing about the lodging of the F.I.R. We have heard Sri Jagdish Singh Sengar, learned Counsel for the petitioner and Sri T. N. Sinha, learned Government Advocate on behalf of the State of Uttar Pradesh and we have examined the record.;