- (1.) Y. R. Tripathi, J. This appeal arises out of the judgment and order dated 25-6-1985 passed in S. T. No. 361/m of 1984 by Sri O. P. Garg, the then VIth Additional Sessions Judge, Kanpur convicting and sentencing the appellants on different counts.
(2.) APPELLANT Ajay Kumar Dubey on his conviction under Sections 302 IPC and 323 IPC read with Section 34 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively. APPELLANT Sanjay Kumar on his conviction under Sections 302 IPC read with Section 34 IPC and 323 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively and appellant Chandra Bhan on his conviction under Sections 302 IPC read with Section 34 IPC and 323 IPC read with Section 34 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively. The prosecution case as unfolded in FIR and evidence is that the deceased Nirmal Kumar Srivastava was the real brother of Bimal Kumar Srivastava, PW-1. Nirmal Kumar Srivastava resided in House No. 122/626 in mohalla Shashtri Nagar, P. S. Kakadeo of District Kanpur. It is alleged that on 4-7-1984 around 8. 30 p. m. the informant alongwith his brother Nirmal Kumar was going to market to purchase vegetables and when they reached in front of the Punjab National Bank one Mahesh Kumar alias Raju Mishra, a friend of the deceased met them and started talking with Nirmal Kumar Srivastava. In the meantime, the appellants Ajay Kumar Dubey Chandra Bhan, both real brothers and Sanjay Kumar their friend, appeared there. Ajay Kumar Dubey pointing towards the deceased remarked that he poses himself to be a great ruffian. Appellant Chandra Bhan in the meantime exhorted Ajay Kumar to teach the deceased a lesson, saying 'mar do sale ko' whereupon Ajay Kumar whipped out a knife from the fold of his pant and dealt several blows to Nirmal Kumar, with it. Appellant Sanjay Kumar Dubey, who had a hockey stick with him also assaulted Nirmal Kumar, Bimal Kumar Srivastava and Raju Mishra intervened raising an alarm and tried to save Nirmal Kumar whereupon Sanjay Kumar dealt a blow to the informant also from the hockey stick which he was wielding at that time. Nirmal Kumar on sustaining his injuries ran towards South West and fell down on the ground. Several persons of the vicinity attracted on the scene of the incident are said to have witnessed the occurrence. The younger brother of the deceased Manoj Kumar P. W. 2 who resides in a house situated nearby also saw the occurrence from the chhajja of his house. On arrival of the witnesses, the accused ran away towards Kanhaiya Hotel holding out threats. The informant rushed his injured brother to Helet Hospital on a Riksha where the doctor on duty declared Nirmal Kumar Srivastava as brought dead. Leaving the dead-body of his deceased brother in the hospital premises the informant went to P. S. Kakadeo which lies at a distance of 2 kms from the scene of the incident and made over a written report Ext. Ka-1 there on the basis of which, a chick FIr Ext. Ka-12 was prepared by constable clerk Ram Babu PW-8 who also registered a case vide G. D. Ext. Ka- 13, S. I. Laxmi Narain Yadav PW-6 then posted at P. S. Kakadeo held inquest on the dead-body of the deceased on 5-7-1984 at 10. 30 a. m. at the mortuary and completed other formalities. The post-mortem examination on the dead-body was conducted by Dr. R. P. Bajpai PW- 4, who on internal examination found thorax walls of the deceased ruptured and his left pleura punctured. About one litre blood was found present in left pleura cavity. Dr. Bajpai also found the pericardium and heart of the deceased punctured. According to him the deceased was of average built, his eyes were partially open, mouth closed and froth coming out of nostrils. Rigour mortis was found present in both the extremities. Post- mortem stainings were present over whole of the buttock and thigh. The abdomen was distended. In the opinion of Dr. Bajpai, the death of the deceased had occurred due to shock and haemorrhage as a result of his ante-mortem injuries. It appears that the police of P. S. Kakadeo had referred informant Bimal Kumar also for his medical examination which was conducted by Dr. G. K. Tiwari PW-3 then posted as Medical Officer in L. L. R. Hospital, Kanpur, who examined him at 10. 48 p. m. on the very day of the incident and found a vertical red contusion of the size of 3 cm. x 2. 0 cm. on the parietal region of the left side of his scalp.
(3.) THE investigation of the case resulted in presentation of charge-sheet against the appellants culminating into their trial and resultantly conviction and passing of sentences as aforesaid. We have heard the learned Counsel for the appellants at sufficient length and have also gone through the materials on record.;