- (1.) G. D. Dube, J. Appellants Banarasi and Hittru have been convicted under Section 302 and 302 read with Section 34, I. P. C. respectively and sen tenced to undergo imprisonment for life by Third Addl. Sessions Judge, Jaunpr. Aggrieved by this order they have preferred this appeal.
(2.) IN the first information report lodged by Nebu Lal Harijan at 6. 10 a. m. on 7-2-1978 it was alleged that a long standing dispute was existing between him and his pattidar Banarasi appellant. About 5 days before occur rence Banarasi and Smt. Dhanji had started constructing a house. The father of the reporter intervened and stopped them from making construction. On account of this incident Hittu, son- in-law of Smt. Dhanji came to the house of reporter and threatened his father with dire consequence. It is alleged that at about 11 in the night between 6th and 7th February, 1978 Nebu Lal PW 1, his father (Fakir), grand mother and sister were sleeping in the Osara of the house. A Dibri was burning in the Verandah as usual. At about 11 p. m. Banarasi, Hittu, Pujan, Male Ram, Milan and Ramnain came armed with Lathi and Ballam and started assaulting Fakir with fists and kicks. On his alarm the persons sleeping nearby awoke. Thereafter the accused dragged Fakir by catching hold of his legs. Banarasi said to his componion that this person (Fakir) had stopped his house and he should be killed. He inflicted Ballam blow in the stomach. On the alarm raised by the family members Ram Adhar, Shobhan, Jiywan, Sidhu and several others came flashing their torches. Accused ran away towards south. A local doctor Gulab was called. He gave first aid and bandage on the injuries of Fakir. Fakir died on his way to the hospital. Thereafter Nebu Lal lodged this first information report in police station Sarpataha, district Jaunpur. When the report was lodged the station officer of police station Sarpatha was not present at the police station. He received the papers in village Sarai Mohaddi. He started for the place of occurrence. He took the dead body of Fakir in his possession and conducted the inquest proceedings. Thereafter the dead body was sent to the mortuary alongwith necessary papers for post-mortem. The post-mortem was conducted by Dr. R. P. Rastogi, P. W. 2 at 12. 30 p. m. on 8-2-1978. Doctor found a stitched wound 5 cm obliquely placed on the lower part mid line of abdomen 4 cm. below the umblicous. After removing the stitches the doctor found that margins were clean cut, both ends were also clean cut and abdominal cavity deep having its direction downwards outwards and towards right side. The stomach con tained 3- 4 ounces digested food. The small intestine has cut through and through at two places. The mesentric blood vessel was cut at one place. Facial matter was coming out from the cut portion of the intestine. The doctor opined that the death was caused due to shock and haemorrhage as a result of above injuries. No abnormality was deteited in any other part of the body. The Investigating Officer had found a Debri in the Osara. He had also inspected the torches of the witnesses and prepared memos. At the place of occurrence a pair of Chappals (Ext. 5) was found. The Investigating Officer had prepared the site plan. Banarasi, Ramayan and Hittu were arrested from brick- kiln at about 3. 00 p. m. on 8-2-1978. On the pointing out of Banarasi a spear Ext. 4 was recovared from a hut near brick-kiln. The Investigating Officer had prepared a site plan regarding the place of recovery. The other accused were also arrested after on. After completing the investigation charge-sheet was submitted against the appellants and the others.
(3.) TRIAL proceeded against the two appellants, and Pujan, Male Ram, Milan and Ramnain. The prosecution examined Nebulal P. W. 1, Ram Adhar, P. W. 2, Sidhu Yadav P. W. 4 as eye witness. P. W. 2 Dr. R. P. Rastogi had conducted the post-mortem examination. P. W. 10 Gulab Chand as stated above has given first aid to the deceased. Krishna Bali P. W. 11 is the investi gating officer P. W. 9 Bachcha Singh is the recovery witness of the spear Ext. 5. The accused had pleaded not guilty to the charges. They had not produced any evidence. After assessing the evidence of the witnesses the learned Additional Sessions Judge found only the two appellants guilty of the offence punishable under Section 302, I. P. C. Banarasi was found guilty under Section 302 simpliciter whereas Hittu was convicted under Section 302 with the aid of Section 34, I. P. C. The other accused Male, Milan, Pujan and Ramnain were given benefit of doubt and acquitted accordingly.;