- (1.) THROUGH this appeal, the appellant challenges the judgment and order dated 8-10-1980 passed by the III Additional Sessions Judge, Lucknow, in Sessions Trial No. 21/1980, convicting and sentencing him to undergo imprisonment for life for the offence punishable under Section 302 IPC. It is pertinent to mention that alongwith the appellant was tried his real brother Sadhu, who has been acquitted vide the impugned judgment and the State of U. P. has not impugned his acquittal by preferring an appeal under Section 378 (1) Cr. P. C.
(2.) SHORTLY stated the prosecution case runs as under: The informant Umrao (PW-1) was the brother of the deceased Newaji. At the time of the incident the informant, deceased, the informant's wife Smt. Kamla (PW-3), the informant's sister-in-law Smt. Madhu Rani (CW-1), the appellant and the acquitted accused Sadhu were living in different portions of the same house in village Babapurwa, hamlet of Shivpuri within the limits of Police Station Itaunja, District Lucknow. The appellant and Sadhu were the sons of the uncle of the informant. There was a common outlet of the house of the informant and others on one hand and the appellant and Sadhu on the other. With regard to it the relations between them were strained. On the date of the incident i. e. on 4-9-1979, at about sunrise, the son of the appellant had defecated near the fodder- cutting machine of the deceased Newaji, in front of the house of the appellant and the informant. As a consequence thereof the leg of the deceased Newaji got soiled. Newaji shouted as to who had defecated. Thereupon the wife of the appellant replied that her son had deflcated. On that the appellant said that the daily pin- pricks be finished and challenged that Newaji be killed. Appellant's brother Sadhu was also present there. Then the appellant, who was having a ballam in his hands, inflicted a blow on the abdomen and neck of Newaji. When the informant protested against Newaji being assaulted co-accused Sadhu inflicted a lathi blow on him. The informant's wife Kamla tried to save the informant whereupon the appellant assaulted her with a ballam. Co-accused Sadhu also assaulted the informant and Kamla and inflicted a gandasa blow on the person of Kamla. After assaulting, Newaji, the informant Umrao and his wife Kamla, the appellant, and acquitted accused Sadhu ran away. The informant, who as a consequence of the assault had become unconscious, regained his conscious ten to fifteen minutes later and discovered that Newaji was dead. Thereafter on the place of the incident he scribed his FIR and alongwith his wife proceeded to Police Station Itaunja, where he lodged his FIR. The evidence of Constable K. P. Tiwari (PW-4) shows that on 4- 9-1979 he was posted as Constable Clerk at Police Station Itaunja and the informant Umrao lodged his FIR on the basis of which he registered an offence under Section 302 IPC. A copy of the chik FIR shows that the FIR was registered on 4-9-1979 at 8. 30 a. m. and the distance between the place of the incident and the police station was five kilometres. The autopsy on the corpse of the deceased Newaji was conducted on 5-9-1979 at 11. 30 a. m. by Dr. M. S. Kunwar (PW-5), who found on it the following ante-mortem injury: - "stab wound 3 cm x 2. 5 cm present on right side of neck 10 cm below the right ear. The wound have clean cut edges which are parallel but slightly curved to each other like an ellipse and have sharp angle at the two extremeties. The wound is muscle deep and probe is passing upto 9 cm deep. the clotted blood is conniving out from the wound and present around the wound. " The cause of death spelt out in the post-mortem report was shock and haemorrhage as a result of the ante-mortem injuries suffered by the deceased.
(3.) THE injuries of Umrao were medically examined by Dr. V. S. Shukla (PW-8) on 4-9-1979 at 11. 00 a. m. at PHC Itaunja, Lucknow. Dr. Shukla found on his person the following injuries: - " (1) Lacerated wound 3 cm x skin deep on scalp left to mid line 18 cm away from root of nose. (2) Conusion 2 cm x 2 right to mid line 17 cms away from root of nose. (3) Contusion 4 cm x 6 cm in thigh 6 cm above the knee. " In the opinion of Dr. Shukla the said injuries were simple in nature and were attributable to a blunt weapon. Dr. Shukla also examined Smt. Kamla the same day and found on her person the following injuries: - " (1) Lacerated wound on forehead 2. 5 cm x 1 cm x skin deep 5 cms above the root of nose. (2) Contusion 4 cm x 4 cm on left shoulder. (3) Incised wound 3. 5 cm x 1 cm on right side of chest 5 cm below the axilla in mid axilla. (4) Incised wound 3 cm x 1 cm on back of right chest 4 cm below the axilla on post axallary. " The case was investigated in the usual manner and thereafter the appellant and co-accused Sadhu were charge-sheeted.;