Vishnu Sahai, J. - (1.) THIS appeal has been preferred by Chheda and Sri Krishna against the judgment and order dated 26.11.1980, passed by the IIIrd Additional Sessions Judge, Hardoi in Sessions Trial No. A-69 of 1979, whereby they have been convicted and sentenced in the manner stated hereinafter : Chheda under Section 302, I.P.C. to imprisonment for life. Sri Krishna under Section 323/ 109, I.P.C. to one year's R.I. and to a fine of Rs. 1,000.00, in default to undergo three months' R.I.
(2.) SHORTLY stated, the prosecution case runs as under : "The informant Jagdish Prasad P.W. 1 is the son of the deceased Khurramdas. At the time of the incident, the informant, the deceased, Ram Bhajan P.W. 4, Ganesh P.W. 5, Kehari P.W. 6 and appellants Chheda and Sri Krishna were living in village Chinta Khera, hamlet of Beniganj, within the limits of police station Beniganj, district Hardoi. There was enmity between the informant and the deceased on one side and appellants on the other. About two months prior to the incident, the cattle of the appellants had damaged the crop of the informant and the deceased, resulting in the deceased and the informant reprimanding the appellants at their house. Three-four days thereafter the appellants threw stones inside the house of the informant. The informant's father told this to the villagers, who reprimanded the appellants. For these reasons the appellants started nursing ill-will against the informant's father Khurramdas. On 6.11.1977, at about 6.30 a.m., the informant Jagdish Prasad along with his brother Ayodhya Prasad was scraping grass to the west of the field of Kaptan Singh. At that time, he saw that his father Khurramdas, after answering the call of nature, was sitting by the side of a drain, where monsoon water had been accumulated, washing his face and hands. He also saw that appellant Chheda armed with a lathi and appellant Sri Krishna armed with a kanta, came near his father and Sri Krishna instigated Chheda in terms "Mar Lo Sale Ko Jane Na Pawe". At the juncture, Khurramdas raised cries, hearing which, he (the informant Jagdish Prasad), Ram Bhajan, Ganesh, Kehari and some others rushed to the rescue of Khurramdas, who ran in the western direction being chased by the appellants. The appellants overtook Khurramdas and started assaulting him with lathi and kanta. However, Khurramdas did not sustain kanta injuries because he avoided kanta blows. On the challenge of informant and others, the appellants ran away. Thereafter the informant Jagdish Prasad arranged a bullock cart and took Khurramdas, who was precariously injured, on the same to police station Beniganj. However, prior to reaching the police station, Khurramdas succumbed to his injuries. Thereafter, the informant lodged his written F.I.R., Ext. Ka-1 at the police station Beniganj." The evidence of Head Constable Jai Ram Singh P.W. 7 shows thus : "On 6.11.1977, while he was posted at police station Beniganj, the informant Jagdish Prasad lodged a written F.I.R. Ext. Ka-1 on the basis of which he prepared a chik F.I.R. Ext. Ka-3 and registered a case in General Diary vide Ext. Ka-4. It is significant to mention that a perusal of the chik F.I.R. shows that the F.I.R. was lodged at 10.00 a.m. and the distance between the place of the incident and the police station Beniganj was two miles." The evidence of S.I., S. P. Shukla, P.W. 8 shows thus : On 6.11.1977, he was posted as Sub-Inspector at police station Beniganj, in his presence, the F.I.R. was lodged , and he was entrusted with the investigation. At the police station itself, he performed the inquest (Ext. Ka-5) on the corpse of Khurramdas and thereafter prepared the challan lash (Ext. Ka-7). Thereafter he seized the clothes, which were on the corpse i.e., baniyan and kurta vide Ext. Ka-10. At the police station itself, he interrogated informant Jagdish Prasad and Chhotey Lal. Thereafter he left for the place of the incident where he prepared the site plan Ext. Ka-11. He seized the plain and blood stained earth in separate containers vide recovery memos, Exts. Ka-12 and Ka-13. Thereafter, he recorded the statements of Kehari, Ganesh and Ram Bhajan and others. He searched for the appellants but could not find them. He did some investigation also, but since, in our view, a reference to it is not necessary for the disposal of this appeal, we are not adverting to it."
(3.) ON completion of the investigation, the appellants were charge-sheeted. Going backwards, the autopsy on the corpse of the deceased Khurramdas was conducted on 7.11.1977 at 2.00 p.m. by Dr. J. K. Verma P.W. 2, who found on it the following ante-mortem injuries : (i) Lacerated wound 5 x 1 cm. x bone deep on the left side of scalp 9 cm. above the ear obliquely placed. (ii) Lacerated wound 4 cm. x .75 cm. x bone deep on the left side of scalp 1 cm. above and 1 cm. behind the left ear obliquely placed. (iii) Contusion 6 cm. x 3 cm. on front of left shoulder middle part obliquely placed. (iv) Multiple abraded contusions of 4 cm. x 2 cm. to 1 cm. x 1.5 cm. on the top and back of left shoulder in an area of 10 cm. x 6 cm. (v) Abrasion 3 cm. x 1.5 cm. on the lateral side of left arm 11 cm. above elbow. (vi) Multiple abrasion 3 cm. x 1.5 cm. to 1 cm. x 1 cm. on the back of left fore arm in an area of 6 cm. x 5 cm., 5 cm. below elbow. (vii) Lacerated wound 1 cm. x .3 cm. x muscle deep on the front of distal phalanx of the left ring finger. (viii) Contusions 6 cm. x 2 cm. on the back of neck left side just above the root of neck 4 cm. lateral to mid line, obliquely placed. (ix) A contusion 7 cm. x 2 cm. on the back of right shoulder, obliquely placed. (x) Multiple contusion of 6 cm. x 2 cm. to 4 cm. x 1.5 cm. on the left side of back of chest in area of 12 cm. x 8 cm., 4 cm. lateral to mid line and 5 cm. below the root of neck. (xi) A contusion 7.5 cm. x 2 cm. on the left gluteal region upper, outer quadrant, obliquely placed. (xii) Contusion 7 cm. x 2 cm. on the back of left thigh upper part just below the gluteal region obliquely placed. On internal examination, Dr. Verma found beneath injury No. 1 depressed fracture of left parietal bone, membranes and brain lacerated and beneath injury No. 10, fractures of 5th, 6th and 7th ribs on the left side. In the opinion of Dr. J. K. Verma, the deceased died on account of shock and haemorrhage on account of ante-mortem injuries suffered by him. In his deposition in the trial court, Dr. J. K. Verma stated that ante-mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death and the deceased could have died as a consequence thereof on 6.11.1977 between 6.00 a.m. to 7.00 a.m. ;