D.R.CHAUDHARY, J. - (1.) THE appellants assail validity of the judgment and order dated 19-12-1980 passed by 2nd Additional Sessions Judge, Ghaziabad in Sessions Trial No. 398 of 1979 convicting Appellant No. 1 under S.302, IPC and sentencing him to undergo life imprisonment, his brother Appellant No. 2 under S.302/34, IPC sentencing him to undergo life imprisonment and their Father Appellant No. 3 under S.302/34 and 364, IPC sentencing him to undergo life imprisonment and four years R.I. under S.302/34, IPC under S.364. The sentences however directed to run concurrently.
(2.) THE prosecution came with this case: - Ram Sharan was Grandfather of Jai Bhagwan, whose two brothers were Hari Ram and Godha; Ramsharan had only one son Lakhmi Chand who had four sons, namely, Jagdish Sharma (PW 2), Satish (PW 3) Rishipal and Jai Bhagwan; Hariram had one son, namely, Jaichand (Appellant No. 3) who has six sons out of whom are Appellant Nos. 1 and 2 Narendra alias Nagendra and Virendra alias Lilu Respondents Godha - the third brother of Ramsharan had no issue and he used to live with Lakhmi. In 1974 Godha had executed a registered sale deed of his landed properties for a sum of Rs. 7000/- in favour of four sons of Lakhmi Chand. The names of all four brothers were mutated in the revenue records. Godha died about five years ago and since then Jaichand and his sons had been feeling enmity on account of his transferring his land to four sons of Lakhmi Chand. On 19-6-1979 there was a quarrel between Jai Bhagwan and Narendra on tethering the cattle and keeping bullock cart. Jai Bhagwan slapped on the face of Nagendra. On 20th June, 1979 at about 3 p.m. Jai Bhagwan was returning from his khor after serving chati to his cattle. The khor is at a distance of 15 or 20 paces from the house of Jai Bhagwan. His brother Satish (PW 3) and Satish's wife Smt. Saroj (PW 4) were going towards khor and his other brothers Jagdish Sharma (PW 2) and Rishipal were near the khor under a neem tree. When Jai Bhagwan had gone about five paces from the khor Jaichand (Appellant No. 3) caught hold him by his arm and took him to his kothri which is towards east of the house of Jai Bhagwan whose brothers thought that Jaichand, their uncle, might have taken him to tell him something about yesterday's incident. They followed him to see as to what was the matter. When they were in front of the door of the kothri of Jaichand they saw that Jaichand (Appellant No. 3) and Virendra alias Lilu (Appellant No. 2) held Jai Bhagwan by his arms while Narendra alias Nagendra (Appellant No. 1) gave knife blow on the neck of Jai Bhagwan. On receipt of the knife blow Jai Bhagwan fell down. Narendra alias Nagendra branded the blood stained knife towards them and thereafter all three went towards north by scaling over the wall. After their escape they went inside the kothri. Till that time Jai Bhagwan was alive. When they were bringing him to their house and had just entered the main door of their house, Jai Bhagwan succumbed to his injuries. His dead body was kept near the main door of their house. Thereafter Jagdish Sharma (PW 2) scribed the FIR (Ext. Ka - 11) of this incident and went to Police Station Babugarh and lodged with the same at 4.00 p.m. The report of the case was registered in presence of S.I. Sita Ram Tayagi (PW 1). A case under S.302, IPC was registered against the appellants. The investigation of the case was taken up by PW 7. He recorded statement of Sri Lila Dhar Sharma H. M. (PW 8). At the police station he also interrogated the witnesses Jagdish Sharma (PW 2) and Rishipal and reduced their statement in writing. Thereafter he proceeded to the place of occurrence, inspected the same and prepared the Site Plan (Ext. Ka - 5). He had seen blood in the kothri of Jaichand and took samples of bloodstained and plain earth from there and sealed it separately in two tins. He had found the deadbody of Jai Bhagwan lying near the main door of the deceased's house. There also he had found bloodstained and plain earth. He had prepared memo (Ext. Ka - 4). He held inquest on the dead body of Jai Bhagwan in presence of Panch witnesses and prepared Inquest Report (Ext. Ka - 6). He sealed the dead body and handed it over to Constable Dharmvir Singh and Constable Daya Chandra (PW 6). He prepared challan lash and naksha lash, letters to C.M.O. and R.I. Exts. 7 to 10) respectively. Thereafter at 9.00 p.m. the investigation of the case was taken up by Sri Ramvir Singh S.O. (PW 9). PW 9 reached the place of occurrence at 9.00 p.m. on 20-6-1979 and recorded the statements of witnesses Satish Sharma (PW 3) and Smt. Saroj Devi (PW 4) on 21-6-1979 as they were not in a position to make statement on 20-6-1979. The dead body of Jai Bhagwan was transported to Meerut by PW 6 Constable Daya Chandra and Constable Dharmvir. They reached Police Lines, Meerut on 21-6-1979 at 8.15 p.m. and post - mortem on the dead body was performed the same day at 1.00 p.m. by PW 1 Dr. V. P. Singh, P. O. Piarey Lal Sharma Hospital, Meerut. On external examination he found that the deceased was aged 19 years, who had died about a day earlier, the body was average built; Rigor Mortis was present over the body; the body had turned pale but there were no signs of decomposition. He found following ante - mortem injury. "1. Stab wound 2 cm. x 1 cm. Chest cavity on right side neck at the root of neck 3 cm. Above right clavicle."
(3.) ON internal examination he found an incised wound 1 cm. x 0.5 cm. on the upper lobe of right lung; Brain, pleura, left lung had turned pale; heart was empty, Right carotid artery was lacerated; stomach contained 150 gms. partially digested food; Small intestines contained gasses while large intestines contained faecal matter. He opined that the death was due to shock and haemorrhage as a result of the stab wound and the injury, sufficient in ordinary course of nature to cause death. He prepared Post - Mortem Report (Ext. Ka - 1). On completion of the investigation PW 9 submitted charge - sheet (Ext. Ka - 13) on 12-7-1979 against the appellants who were put on trial.;