Vishnu Sahai, J. - (1.) THESE appeals have been preferred by Appellant Laxman (Criminal Appeal No. 777/1987 through counsel and Criminal Appeal No. 884/1989 from jail) against the judgment and order dated 7.12.1987 passed by the Special Additional District and Sessions Judge, Hardoi in Sessions' Trial No. 326A of 1981, whereby he has been convicted and sentenced in the manner stated hereinafter: (i) under Section 302/34, I.P.C. to suffer imprisonment for life ; and (ii) under Section 323, I.P.C. to suffer six months' R.I. The substantive sentences of the Appellant have been directed to run concurrently.
(2.) SHORTLY stated, the prosecution case runs as under: The informant Basantu, P.W. 1 is the real brother of the deceased Umrai and the cousin brother of Ram Prasad P.W. 3. At the time of the incident, the informant, the deceased, the injured -victim Ram Prasad and Ram Avtar, P.W. 2 were living in village Nardhira, within the limits of police station Pihani, district Hardoi. There was enmity between victim Ram Prasad and deceased Umrai on one hand and Appellant Laxman and co -accused Srikrishna on the other. In 1977, Umrai had lodged an F.I.R. of theft against Laxman and Srikrishna. 2.1. On 17.9.1980, at about 4.00 p.m., the victim Ram Prasad and the deceased Umrai were proceeding to Kila Pandarwa market. When they reached near the sugarcane field of Ram Sahai, Appellant Laxman and co -accused Srikrishna emerged therefrom. Laxman was armed with lathi and Srikrishna with ballam. They instigated "mar dalo" (kill them). Thereafter Laxman with lathi and Srikrishna with lathi portion of the ballam assaulted them. On their cries, Ram Autar P.W. 2, Mahadev Prasad P.W. 7, Jagannath and Salik Ram rushed to the place of the incident. Thereafter Appellant Laxman took out the knife from his pocket and served the nose of Umrai with the same. Then Appellant Laxman and co -accused Srikrishna ran away. 2.2. Thereafter Ram Prasad and Mahadev Prasad narrated the entire incident to Basantu, who got the F.I.R. scribed by one Jagannath Prasad and proceeded to police station Pihani along with cut nose of Umrai. At the said police station, Basantu lodged his F.I.R. and deposited the cut nose. The evidence of Sub -Inspector Islam -ul -Haq P.W. 5 shows that on 17.9.1980, he was posted as Head Moharrir at police station Pihani and on the said date, informant Basantu lodged his F.I.R. at 6.45 p.m., on the basis of which he prepared the chik F.I.R. Ext. Ka -8. It is significant to mention that it was registered for offences under Sections 307/326, I.P.C. Subsequently, on the death of Umrai, a case under Sections 302/307, I.P.C. was registered. It is pertinent to mention that a perusal of chik F.I.R. shows that distance between the place of the incident and police station was four miles. It is significant to mention that thereafter Ram Prasad and Umrai were sent to Pihani Hospital. However, on the way Umrai succumbed to his injuries. Since no doctor was available at Pihani Hospital, Ram Prasad was sent for medical examination to the District Hospital, Hardoi.
(3.) THE injuries of Ram Prasad, P.W. 3 were medically examined on 18.9.1980 at 11.30 a.m. by Dr. Rajendra Shukla P.W. 8, Medical Officer, District Hospital, Hardoi, who found, on his person, the following injuries: (i) Contusion 3 cm. x 1 cm. on the back of right elbow with diffused swelling and deformity around the elbow red coloured ; (ii) Contusion 1.5 cm. x 1.5 cm. on the dorsum of left hand near the base of the thumb red coloured ; (iii) Lacerated wound 1 cm. x 3 cm. x muscle deep on the web of left little finger. Margins oedematous, oozing of blood on probe present ; (iv) Abraded contusion 3 cm. x 1.5 cm. on the front and outer part of left knee obliquely placed red coloured. In the opinion of Dr. Shukla, excepting Injury No. 1, which was kept under observation and in respect of which X -ray of right elbow was advised, all the injuries were simple in nature. In his deposition in the trial court Dr. Shukla stated that said injuries could have been caused on 17.9.1980 at about 3 -4 p.m.;