M.C.JAIN,J. - (1.) HERE are two appellants, namely, Shiv Mangal and Dhunu @ Shiva Bhawan (real brothers) who have filed this appeal against the judgment and order dated 16-7-1981 passed by the then Sessions Judge, Banda in Sessions Trial No. 555 of 1980, convicting both of them under Section 302 IPC with the sentence of life imprisonment.
(2.) THE incident took place on 11th October, 1980 at about 1 p.m. in the field of Bhau Singh situated in village Chaura, P.S. Pahari District, Banda. The deceased was Prabhu Dayal, resident of the same village. The report of the incident was lodged by an eye-witnesses Ram Jeet (brother of the deceased) the same day at 4.30 p.m. The distance of the Police Station from the place of occurrence was 4 Kms. The broad features of the case may be set forth. On the fateful day, the cattle of the deceased was grazing in the vacant land of the Gaon Sabha. His brother Ramjit - complainant PW 1 with his wife Jahari and Prabhu Dayal's wife Sukhia were cutting cattle fodder in the field of Bhau Singh situated towards east of the vacant land. The field of the appellant Shiv Mangal was adjacent to the west of the Parti (vacant) land in which he had stacked some grass. The two appellants were sitting near the well in the field of Shiv Pratap Singh. While grazing in the vacant land of Gaon Sabha, cattle of Prabhu Dayal sneaked into the field of Shiv Mangal and started eating grass stacked there. Shiv Mangal abused Prabhu Dayal who entreated that the cattle had eaten only dried grass and no damage had been caused. He thus implored Shiv Mangal, not to abuse him. Without paying any heed. Shiv Mangal continued hurling abuses and called his brother Dhunu who was sitting at some distance from the well below a tree. Dhunu attacked Prabhu Dayal with a lathi from behind. Shiv Mangal also attacked him with lathi. Prabhu Dayal also had a lathi and tried to shield himself in vain. The two appellants inflicted injuries upon Prabhu Dayal who fell down. Sukhia and Jahari who were in the nearby field of Bhanu Singh rushed up. The appellants fled towards the village. Prabhu Dayal died on the spot as a result of the injuries sustained by him. Leaving the dead body in the care of his nephew Tirath who had by that time arrived, the complainant - Ramjit PW 1 left with village watchman for the Police Station. Reaching a mile ahead he met Natthu Prasad brother of his wife and got the report written by him. He lodged the same at the Police Station in consequence whereof a case was registered and investigation undertaken by SO Jai Prakash PW 6.
(3.) POST mortem over the dead body of the deceased was conducted by Dr. S.D.S. Chauhan PW 2 on 12-10-1980 at 3 p.m. The deceased was 35 years of age and about one day had passed since he died. The following ante mortem injuries were found on his person : (1) Lacerated wound 6 cm x 2 cm x bone on front of head horizontally 4-1/2 cm above left eye-brow. (2) Lacerated wound 5 cm x 1 cm x scalp, horizontally, just in front of tuft in middle of scalp. (3) Abraded contusion 5 cm x 2 cm on back of left forearm 4 cm above wrist joint with fracture of radius and ulna underneath. (4) Multiple contusions overlapping each other varying from 3 cm x 1 cm x 3 cm x 2-1/2 cm in area of 30 cm x 28 cm on left lateral side of chest and left side of back upper one third. (5) Contusion 8 cm x 2 cm on the top of right shoulder. (6) Lacerated wound 3 cm x 1 cm x skin on outer aspect of left upper one third. (7) Contusion 4 cm 1-1/3 cm on back of right leg upper one third. ;