- (1.) VISHNU Sahai, J. Four persons namely, Nem Raj, Nanku alias Nankau, Sipahi Yadava and Shohrat were tried by II Addl. Sessions Judge, Bahraich in Sessions Trial No. 431 of 1979, for the offence punishable under Section 302/34 IPC. Vide judgment and order dated 21-1-1981 the learned Judge found them guilty for the said offence and sentenced each one of them to undergo imprisonment for life. Aggrieved by the said judgment and order, Sipahi Yadava and Shohrat preferred criminal appeal No. 47 of 1981 and Nem Raj and Nanku alias Nankau criminal appeal No. 57 of 1981, in this Court. Since both these appeals arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment.
(2.) SHORTLY stated the prosecution case runs as under: The informant Smt. Bhuwanpati P. W. 1 and Yashodra Devi P. W. 2 were wife and mother respectively of the deceased Ram Khelawan. At the time of the incident, they along with Ram Khelawan and other members of the family were living in village Gur Purwa, Hamlet of Hallapur, within the limits of police station Bhinga District Bahraich. At that time, the four appellants were also living in village Parashrampur Bhatgar, within the limits of Police Station Bhing a District Bahraich. Appellants Nem Raj and Nanku alias Nankau are real brothers and appellants Sipahi Yadav and Shohrat are said to be the associates of appellant Nem Raj. Six months before the incident, a theft had taken place at the house of the informant and in the FIR pertaining to it, which was lodged by the husband of the informant, deceased Ram Khelawan alias Khelawan, appellant Nem Raj and three others were nominated. Nem Raj and others were arrested and thereafter were released on bail. On account of this, they bore grudge against the deceased Ram Khelawan alias Khelawan. On the night of 27/28-10-1979 informant along with her husband Ram Khelawan alias Khelawan and their child aged about 1 and 1/4 years, slept in her western madha, the informant's mother-in-law Yashodra Devi slept in the eastern madha, and the informant's brother-in-law (elder brother of her husband) Swami Dayal slept in the western madha. At about mid night while informant her husband and their 1-1/4 year old child were sleeping, the four appellants, namely, Nem Raj, Nanku alias Nankau, Sipahi Yadava and Shohrat came, Nem Raj was armed with knife and the remaining with dandas. Nanku alias Nankau dragged out the informant from her cot, scolded her and made her at a distance of three feet. At that juncture the informant raised cries, hearing which her mother- in-law Yashodra Devi and her brother-in-law Swami Dayal came. The latter had a torch. Some of the appellants also had torches. Later on some other witnesses came. All of them saw the four appellants assaulting Ram Khelawan alias Khelawan with their weapons. After assaulting Khelawan alias Ram Khelawan the appellants ran away. As a consequence of the knife assault intestines of Ram Khelawan alias Khelawan protruded out. Therefore, the informant along with Swami Dayal took her husband Ram Khelawan alias Khelawan, who was precariously injured, to Bhinga Hospital, where the doctor after examining his injuries advised that he be taken to Civil Hospital, Bahraich. Thereafter, she and Swami Dayal arranged for some money from Chander Sonar and then got that FIR scribed by a boy, who had reached there. Then along with her FIR the informant proceeded to police station Bhinga where she lodged the same at 7. 30 a. m. on the morning of 28-10-1979, the police station being situated at a distance of three miles from the place of incident. The evidence of Head Constable Lalji Dixit P. W. 3 shows that on 28-10-1979 at 7. 30 a. m. FIR of the incident was lodged by informant Smt. Bhuwanpati at Bhinga Police Station. On the basis of the said FIR an offence punishable under Section 307 IPC was registered against the appellants. Going backwards to the injuries of Ram Khelawan alias Khelawan were medically examined on 28-10- 1979 at 3. 45 a. m. by Dr. S. K. Sinha (P. W. 5) Medical Officer, Male Dispensary, Bhinga, who found on his person the following injuries: (1) Abraded contusion 4 cm x 2 cm on the top of right shoulder joint simple blunt injury. (2) Contusion 5 cm x 2 cm on the right upper arm outer aspect lower part of deltoid, reddish simple blunt injury. (3) Penetrating wound 3 cm x 2 cm x abdominal cavity on the right side of abdomen at rib level of the cortal margin in the anterior mid line. omentum protruding out of the wound, with fresh blood oozing, sharp pointed injury. (4) Contusion 14 cm x 2 cm on the front of the right chest 11 cm below the nipple. Directed side ways. (Sic) for the mid line. . . . sic. . . . . . Reddish colour simple blunt injury. (5) Penetrating wound 2 cm x 1-1/2 cm x abdominal cavity on the right side of abdomen 5 cm away from the umbilicus at 10'o clock position and directed side ways. Omentum protruding out, the wound with fresh blood oozing. Sharp pointed injury. In the opinion of Dr. Sinha injuries No. 1, 2 and 4 were simple in nature and were attributable to a blunt weapon like lathi/danda and injury Nos. 3 and 5 were attributable to sharp edged weapon like knife. In his statement, during trial, Dr. Sinha stated that the said injuries could have been caused on 27/28-10- 1979 at about 12-1. 00 a. m. and were sufficient in the ordinary course of nature to cause death. It is pertinent to mention that the evidence of Dr. Sinha (P. W. 5) shows that the victim was admitted in his dispensary at 3. 20 a. m. and immediately on his admission he sent information to police station Bhinga. It is also significant to mention that the evidence of H. C. Lalji Dixit (P. W. 3) shows that on 28-10-1979 at 5. 00 a. m. information was received through Chaukidar from Bhinga Hospital about the admission of Ram Khelawan alias Khelawan at Bhinga Hospital.
(3.) THE evidence of the informant Smt. Bhuwanpati shows that while she and her brother-in-law Swamy Dayal, along with Ram Khelawan alias Khelawan, were on way to Civil Hospital, Bahraich, Ram Khelawan alias Khelawan breathed his last. The evidence of H. C. Lalji Dixit P. W. 3 shows that on 29-10- 1979 information was received about the death of Ram Khelawan alias Khelawan and consequently the case was converted from Section 307 IPC to one under Section 302 IPC.;