- (1.) MUKTESHWAR Prasad, J. This Criminal appeal by accused Ishwari and Manglee has been filed against the judgment and order 5- 12-1981 passed by Sri K. S. Rakhra, the then Additional Sessions Judge, Orai in S. T. No. 112 of 1981 whereby he convicted Manglee under Section 304 (Part II) IPC and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- Accused Ishwari was convicted under Section 304 (Part II) read with Section 34 IPC and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/ -. In default of payment of fine they were ordered to undergo further rigorous imprisonment for a period of six months.
(2.) BRIEFLY stated, the prosecution story is as under. P. W. 1 Kadore, son of Baljoo, a resident of village Darmras, police station Churkhi, lodged a FIR at police station Churkhi on 19-7-1980 at 4-45 p. m. under Section 304 IPC against Manglee, Ishwari and Jagdish. The informant alleged that there is a narrow lane between houses of Dhanpat and accused Manglee through which Manglee and Ishwari were trying to flow water forcibly. The drain was being dug by the accused adjacent to the wall of the house of Dhanpat. The informant's brother Dhanpat stopped the flow of water by filling earth. Accused Manglee and Ishwari removed the earth forcibly and with a view to teach a lesson to Dhanpat, they rushed home to bring lathies. In the meantime. Ram Singh, son of Dhanpat, arrived there and he was thrown out in the same drain by Jagdish. On the exhortation of Jagdish Manglee and Ishwari gave lathi blows on the head of Dhanpat. The informant his nephew Ram Singh and brother Chaturi, Dhani Ram and Santosh who had arrived there saw the incident and challenged the assailants and then they took to their heels. This incident took place on 18-7- 80 at about 5. 00 p. m. The informant got a report written by one Gajendra Singh and reached the police station on 19-7-80. On account of heavy rains and non-availability of the conveyance, the informant arranged a tractor alongwith trolley in the morning of 19-7-80. On the way near bus station Damras. Dhanpat succumbed to his injuries at about 9. 00 a. m. The informant left the dead body in the supervision of members of the family and village Chaukidar.
(3.) AFTER registration of the case at the police station at crime No. 90, investigation was taken up by P. W. 4 S. I. Raisul Haque. He took up investigation, interrogated the informant and left the police station for the place of occurrence. He prepared inquest report and other papers and sent the dead body to Orai for post- mortem examination. Next morning, he inspected the scene of incident and prepared site- plan. P. W. 7 Dr. R. C. Singh the then Medical Officer District Jail, Orai conducted autopsy on the dead body of Dhanpat on 20-7-80 at 4. 00 p. m. According to the doctor, the deceased was about 50 years old and had died about two days prior to examination. Dr. Singh found following ante-mortem, injuries: (1) Lacerated wound size 5 cm. x 1 cm. x scalp deep, 7 cm. above over left side head from medial end left eyebrow. Vertical. (2) Abrasion size 1 cm. x 5 cm. , 7 cm. below right nipple.;