M.C.JAIN, J. - (1.) THE appellant is one Satya Prasad Misra who has filed this appeal from jail against the judgment and order dated 28 -1 -1998 passed by Sri Brahma Singh, the then Sessions Judge, Sonebhadra in S.T. No. 66 of 1993. He has been convicted under Section 302 I.P.C. and sentenced to life imprisonment for murdering his own brother Laxman Prasad and further under Section 324 I.P.C. with sentence of six months rigorous imprisonment for voluntarily causing hurt by a cutting weapon to his nephew Pradeep Kumar.
(2.) SRI Ramesh Sinha was appointed as amicus curiae to argue out the appeal on behalf of the appellant. We have heard him for the appellant as also Sri G.S. Bisaria, learned A.G.A. from the side of the State. The incident occurred on 29 -3 -1993 at about 8 p.m. in village Majhgawan Misir, Police Station Ghorawal, District Sonebhadra at the house of the victim and the accused appellant. The report was lodged the same day at 10.10 p.m. by Ambika Prasad Misra (brother of the deceased and the accused appellant), an eye -witness. The deceased was the eldest of the three brothers and the accused appellant the youngest, Ambika Prasad PW 1 being in between. The accused appellant had fallen out of the other members of the family about two years before the incident and used to roam about hither and thither. At intervals, he used to come and live with the family, asking the eldest brother to separate his share in the property. About a week before the incident also he had come to be house and was living there. Once or twice earlier, he was even scolded and pulled up by his eldest brother and had then left the house, threatening to kill him (eldest brother) if he did not partition his share. On the fateful day, he had borrowed an axe from the house of Jhulai Lohar and after axing fuel wood placed it beside the Tulsi plant vegetating in the courtyard. In the evening all the three brothers were sitting in the verandah of the house. Earthen lamp was glowing on the alcove of the wall. At about 8 p.m. their younger sister came to call them for meals. The eldest brother Laxman Prasad lay on a cot along with the informant's son Pradeep and started taking his test of tables. The informant Ambika Prasad accompanied by the accused appellant went to the kitchen to take meals where his nephew Santosh was also called. All the three were taking meals. After eating two Chapatis the accused appellant Satya Prasad got up all of a sudden, hurried to Tulsi plant and picking up the axe went out. The informant and others heard shrieks of informant's son Pradeep. He and his nephew Santosh rushed outside without washing their hands and spotted that the accused appellant was assaulting Laxman Prasad with the axe. On alarm being raised, Ram Pyare, Sri Kant Dubey and Ram Baran were attracted to the scene of crime. The accused appellant fled away leaving the axe. Blood was oozing out of the neck of Laxman Prasad. The child Pradeep was also injured and crying. He was bleeding from the right side of the forehead. Laxman Prasad had become unconscious and was laden in trolley tractor with bedding for being taken to the hospital, but in the meanwhile he died. Leaving the dead body laden on trolley, Ambika Prasad P.W. 1 went to the police station with written FIR and lodged it there. The case was registered and investigation started by the Investigating Officer Shiv Murti Dwivedi P.W. 4 who came to the spot, prepared the inquest report and completed the other formalities. The dead body was sent for post -mortem which was conducted by Dr. V. Singh P.W.3 on 30 -3 -1993 at 3.15 p.m. About 3/4 day had passed since he died. He was of about 35 years. The following ante -mortem injuries were found on his person: (1) Incised wound 4 cm x 1 cm x cavity deep on left side of face just lateral to angle of mouth. The left maxilla bone was fractured and molar and premolar teeth of upper and lower jaw (left side) stood fractured. (2) Incised wound 2.5 cm x 1 cm x bone deep on left side of face, 3 cm below injury No. 1. There was fracture of mandible bone on left side. (3) Incised wound 9 cm x 1.5 cm x bone deep on left side of neck. (4) Incised wound 3.5 cm x 1 cm x bone deep on back of right writs.
(3.) THE death had occurred due to shock and haemorrhage resulting from ante -mortem injuries.;