- (1.) VISHNU Sahai, J. Through this appeal, appellants Naseer alias Pullu, Naseer alias Bhullan and Aziz have challenged the judgment and order dated 15-5-1981 passed by IIIrd Additional Sessions Judge, Rae Bareli, in Sessions Trial No. 274 of 1980, whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC.
(2.) SHORTLY stated the prosecution case runs as under : Informant Rasool Ahmad (PW 1) was the real brother of deceased Jamil Ahmad. At the time of the incident the informant and deceased were living in village Ghosi Ka Purwa H/o. Rajapur, situated within the limits of police station Salon, District Rae Bareli. At that time, appellant and co-accused Madari were also living in the said village. They are inter-related. Appellant Nasir Ahmad alias Pullu and Madari are real brothers. Appellant Nasir alias Bhullar is the son of the sister of the father of appellants Nasir Ahmad alias Pullu and Madari. Appellant Aziz is the son of Abdul Bari, the brother of appellants Nasir Ahmad alias Pullu and Madari. There was enmity between informant and the deceased on one hand and appellants and co-accused Madari on the other. About two years before the murder of the deceased co-accused Madari had assaulted the informant's brother Sher Mohammed and he was prosecuted in the case arising therefrom. A year before that the informant, deceased Jamil and others were prosecuted for assaulting appellant Naseer alias Pullu and Nasir's brother-in-law (sala) Babban. On 29th April, 1980, at about 7. 30 a. m. informant Rashool Ahmad, deceased Jamil Ahmad and Munna proceeded on cycles to village Salon to sell milk. On the way Mohd. Yusuf (PW 2) met them. He was also on a cycle. Jamil was about 40-50 paces ahead from informant. As soon as informant, Jamil and others reached near a culvert, at the outskirts of village Rajapur, from behind Behaya bushes, appellants Naseer alias Pullu, Naseer alias Bhullan and Aziz and co-accused Madari, all who were armed with lathis, emerged. They were exhorting "jaan Se Maar Dalo". They thereafter, launched an assault with lathis on jamil who fell down as a consequence thereof. When the informant and others tried to rescue Jamil, they told them that they would meet the same fate. After assaulting Jamil, the appellant ran away towards western side. As a consequence of assault Jamil died on the spot. Leaving the corpse of Jamil under the care of Munna and Yunus, the informant Rasool Ahmad got his FIR scribed by Sakir Ahmad and proceeded along with it to police station Salon where he lodged it. The evidence of Head Moharrir Uma Shanker Singh (PW 3) shows that on 29-4-1980 while he was working as constable moharrir at police station Salon, at 9. 15 a. m. , informant Rashool Ahmad came to the police station and lodged his FIR, on the basis of which, he registered a case. It is pertinent to mention that the copy of the chik FIR prepared by him shows that the distance between the place of incident and the police station was about 3 Kms. The evidence of S. I. R. K. Pandey (PW 7) shows that the FIR was lodged in his presence and he immediately proceeded for the place of incident, which he reached at 10. 15 a. m. the same day his evidence shows : He prepared the inquest on the corpse of the deceased, the challan lash, photo-lash and thereafter, on the place of incident itself recorded the statements of informant Rashool Ahmad, Munna and Yusuf. He thereafter, on the pointing out of the witnesses prepared site plan Ext. Ka. 12 and took into possession plain and blood stained earth from the place of incident in separate containers, under recovery memos. On the place of incident, he found a lathi, which was said to have been used by co-accused Madari and he recovered it under a recovery memo. He also found that milk had fallen on the place of incident and the cycle of the deceased, on which a milk can was tied was lying there. He also found that on both sides of the road there were Behaya bushes.
(3.) THE evidence of S. O. Chotey Lal Chaudhary (PW 6) shows that from 15-5-1980 onwards he conducted the investigation and on 3-6- 1980, after completing it submitted the charge-sheet against appellants and Madari. Going backwards, the autopsy on the corpse of the deceased was conducted on 30-4-1980, at about 11. 50 a. m. , by Dr. K. N. Mehrotra (PW 5) who found on it the following ante-mortem injuries : (1) Lacerated wound of 10 cm. x 2 cm. x bone deep (with fracture of underlying bone), one left side, 12 cm. above left ear. (2) Lacerated wound of 2 cm. x 1/2 cm. bone deep on left side of head, 8 cm. above left ear. (3) Lacerated wound 4 cm. x 1/2 cm. x bone deep on left side head, 3 cm. above left ear. (4) Lacerated wound of 1. 5 x 1/2 cm. on tragus of left ear. (5) Lacerated wound of 2 cm. x 1/2 cm. x bone deep on right side head back, 10 cm. above right ear. (6) Lacerated wound of 1. 5 cm. x 1/2 cm. x scalp deep on left back of head, 7 cm. above right ear. (7) Abrasion of 1 cm. x 1 cm. on a back side of left elbow. (8) Abrasion of 1 cm. x 1 cm. on back side of right elbow. (9) Abrasion of 4 cm. 1 cm. on left knee front. (10) Abrasion of 1 cm. x 1 cm. on joint left knee. (11) Contusion of 4 cm. x 2 cm. on left side of left thigh lateral aspect in upper 1/3. (12) Contusion of 4 cm. x 10 cm. on the back of chest in middle on lower costak margin. (13) Contusion of 6 cm. x 2 cm. on back of lower lumbro-sacral region. On internal examination Dr. Mehrotra found fracture of parietal and occipital bones and brain matter protruding out beneath injury No. 1. In the opinion of Dr. Mehrotra, deceased died on account of shock and haemorrhage, as a result of ante- mortem injuries and ante- mortem injury No. 1 was sufficient in the ordinary course of nature to cause his death. He was also of the opinion that the deceased could have died on 29-4-1980, at 8 a. m. and the injuries suffered by him, were attributable to a blunt object, like lathi.;