- (1.) G. P. Mathur, J. Than Singh has filed this appeal against his conviction under Section 302, IPC and sentence of imprisonment for life imposed by the Sessions Judge, Rampur, by judgment and order dated 14-7-1979 passed in S. T. No. 137 of 1978.
(2.) THE case of the prosecution, in brief, is that the appellant Than Singh and PW 2 Ram Singh are real brothers, being sons of DW 1 Sohan Lal, PW 1 Smt. Phula Devi is the wife of the deceased Mohan Lal, who was real brother of Sohan Lal aforesaid. PW 6 Balak Ram is the sister's husband of Sohan Lal. THE house of the deceased Mohan Lal and his brother Sohan Lal are adjoin ing to each other in Mohalla Sahukara. It is alleged that at about 7. 30 a. m. on 10-3-1978 Mohan Lal was getting the foundation dug for construction of the boundary wall of his house which was objected to by the appellant Than Singh. Mohan Lal said that he was making the construction on his own land and he had no right to raise any objection. On this Than Singh gave two blows with Tabal on the head of Mohan Lal who fell down unconscious on the spot. A report about the incident was lodged by Smt. Phula Devi on to-3-1978 at 8 a. m. at P. S. Bilaspur which is two furiongs from the place of occurrence. THE injured was taken to Primary Health Centre, Bilaspur, where he was medi cally examined at 9. 15 a. m. and the doctor found two injuries on his head Mohan Lal, however, succumbed to his injuries and the case was converted to Section 302, IPC. After usual investigation charge-sheet was submitted against the appellant under Section 302, IPC. The prosecution in support of its case exami ned in all 12 witnesses. The defence of the accused was that when he asked the labourers not to dig foundation Mohan Lal was present there armed with a gun and he had said that the foundation would be dug at that very place. On the instigation of Ram Singh, Mohan Lal pointed the gun towards him and then he used lathi in self-defence. He examined one witnesses, namely, Sohan Lal, in support of his defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant as mentioned earlier. Pw 1 Phula Devi is the wife of the deceased Mohan Lal and is also real aunt of the appellant. She has stated that at about 7,30 a. m. on the date of the incident Mohan Lal was digging foundation for making construction which was objected to by the appellant Than Singh. Mohan Lal said that he had no right to raise any objection on which the appellant gave two blows with Tabal on his head. In her cross- examination she has stated that Than Singh was living separately from his father and his house was towards southern side of his father's house. She has further stated that the court-yard of all of them was towards eastern side. Nothing material has come out in her cross-exami nation which may discredit her testimony. Since the incident took place just in front of her house her presence on the spot is most natural. Her version finds corroberation from the FIR which was lodged by her within half an hour of the occurrence. In our opinion she is a reliable witness.
(3.) PW2 Ram Singh has stated that he lives in the same compound. At about7. 30 a. m. on 10-3-1978 Mohan same compound. At about 7. 30 a. m. on 10-3-1978 Mohan Lal was digging foundation which was objected to by the appellant. Thereafter the appellant assaulted the deceased by giving two blows with Tabal. It may be noticed that this witness is the real brother of the appellant and nothing material has come out in his cross-examination which may discredit his testimony. The only thing elicited by the defence is that his grandfather Tulsi Ram had executed a will of his property in his favour but the said land was still in the possession of his grandfather. How ever, we are of opinion that the mere fact that the grand father of the appellant had executed a will in favour of this witness cannot lead to an inference that he would falsely implicate his real brother in a murder case. In our opinion he is a truthful and reliable witness. Pw 6 Balak Ram has stated that he had come to Mohan Lai's place for taking milk when the accused came there and asked the deceased not to Jig foundation. When the deceased said that it was his land and he would definitely dig foundation there the accused gave two Tabal blows on his head. In his cross- examination he has stated that in his presence Sohan Lal DW 1 had not asked the deceased not to dig the foundation there nor the deceased was carrying a gun. This witness' is the husband of the sister of the father of the appellant and being closely related there no reason why he would falsely implicate the appellant. His testimony is also reliable and trustworthy.;