- (1.) S. H. A. Raza, J. The appeallants Dewa and Putti Lal have preferred this appeal against the judgment and order dated 31- 3-1980 by means of which they were convicted and sentenced to imprisonment for life under Section 302/34, I. P. C.
(2.) IN brief, the facts of the prosecution case as set out in the F. I. R. (Ext. Ka-1) lodged by Smt. Jagdei, widow of the deceased Bhagwandin, at 10. 30a. M. on 11-11-1978, is that Bhagwandin deceased was her husband. During the course of the consolidation proceedings the agricultural land was allotted to appellant Dewa. There existed a mango tree, the amount of which Bhagwandin was so to get from Dewa appellant. Dewa had promised to pay the said amount. But instead of paying the said amount he started taking the fruits. When Bhagwandin deceased for the payment of the amount Dewa stated that he would neither pay the price of the tree nor allow him to cut the same. On 11-11-1978 at about 3. 30 a. m. when informant Smt. Jagdei as well as her deceased husband Bhagwandin were collecting groundnuts in their agricultural field the Appellant No. 1 armed with a sickle and Appellant No. 2 armed with a Kanta came on the spot. Dewa started saying to Bhagwandin that you were threatening to cut the tree but today we would cut you off and then you cut off the tree. The informant as well as her deceased husband after watching the gesture of the appellants tried to run away but as soon as they reached the field of Mendi Lal, Dewa assaulted Bhagwandin with Sickle as a result of which Bhagwandin fell down. Putti Lal thereafter gave several kanta blows to Bhagwandin. The appellant also chopped off the head of Bhagwandin. On hearing the alarm raised by the informant, Jitta Rajdas, Kallu Pasi, Gaya Prasad Raidas, Suraj Bux Singh and several others reached on the spot and caught hold of Dewa Appellant No. 1, Putti Lal appellant managed to escape. The dead body of Bhagwandin was lying in the field. The informant Smt. Jagdei thereafter went along with Ganga Prasad to lodge the F. I. R. which was scribed by Sri Jamuna Prasad Shukla, Head Moharrir. After lodging of the F. I. R. the case was investigated by Sri Daya Shankar Pandey. Neither Sri Daya Shankar Pandey nor Sri Jamuna Prasad were examined P. W. Sri Satya Parkash Shukla, S. I. who was posted at police station Hasanganj, district Unnao, was produced by the prosecution, who stated that Sri Daya Shankar Pandey, S. I. was seriously ill and was admitted in Medical College, Lucknow and was unable to move and Sri Jamuna Prasad was posted at the relevant time at Allahabad on Kumbh Mela duty. P. W. 4 identified their handwriting and signatures and stated that on 11-11-1978 the F. I. R. was lodged at 10. 30 a. m. which is in the handwriting of Sri Jamuna Prasad Shukla and bears the signature1? of Sri Daya Shanker Pandey. The F. I. R. was marked as Ext Ka-1, Sri Daya Shanker Pandey, S. I. proceeded to fie spot, prepared Panchayatnama, Ext. Ka-3, took photo of Lash (dead body) Ext. Ka-4, prepared Chalan Lash Ext. Ka-5 and the letter to the Chief Medical Officer Gxt. Ka-6 which bore his signature. P. W. 4 further stated that the dead body of Bhagwandin was sealed and sent for postmortem examination. Blood stained and plain earth were taken into custody and sealed separately and memos Ext. Ka-7 and Ka-8 were prepared. Ext. Ka-8 is the memo of Blood statined Hansib and blood stained clothes of Dewa appellant which were taken by the Investigating Officer in presence of the witnesses also bore the signatures of Sri Daya Shanker Paodey. He further deposed that he along with Sri Daya Shanker, S. O. , was present at the time of spot inspection and the site plan Ext. Ka-9 was prepared by the I. O. which bore the signature of Sri Daya Shanker Pandey. On the same day Sri Daya Shanker Pandey recorded the statement of the witnesses and sent Dewa to police station. And after completion of the investigation, the Investigation Officer submitted charge sheet Ext. Ka-10. The charges were framed on 30-8-1979 under Section 302/34, I. P. C. by the Sessions Judge, Unnao against both the appellants. The accused persons state that they are real brothers. Dewa stated that he was arrested from the house and Putti Lal stated that he surrendered himself on 20-11-1979. They were granted bail during the trial of the case.
(3.) THE earth recovered from the place of occurrence, Baniyan, Dhoti, Hansia of the appellant Dewa were sent for Chemical Examination who submitted report dated 21-8-1979 which was filed along with two affidavits Ext. Ka-11 and Ka-12 sworn by constables Jagdish Singh and Anruddha Prasad Pandey. THE Chemical Examiner found that the Baniyan, Dhoti and Hansia of the appellant Dewa had blood-stains. From the side of the defence the appellant relied upon two documents. Ext. Kha-I is copy of the statement of Kusehar dated 17-11-1954 and Ext. Kha-2 is the copy of the judgment in Civil Reference No. 38/110/104/50 of 1957 Hoshram v. Bhagwandin and others to prove that Bhagwandin was not an Adhivasi.;