Surya Prasad, J. - (1.) THIS is a criminal appeal against the judgment and order dated 5th September, 1979 passed by the then learned V Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 53 of 1979 State v. Mohammad Jan, and two others, convicting the accused persons under section 302 read with section 34 IPC and sentencing each of them to Imprisonment for Life.
(2.) THE prosecution case briefly stated is that Ata Mohammad son of Altaf Husain, Ballu Kban and Bachchan Khan are residents of village Garhiya Lai Khera, P. S. Katra District Shahjahanpur. THE deceased Bunda Khan. was also a resident of the same village. On 6-12-78 they had all gone to the Fatehganj market. THEy were returning from the said market after making purchases. At about 5.00 P. M. they reached the field of Masit Khan. THE accused Mohammad Jan, Hasnain and Mamma, who are sons of Mia Jan, are residents of the said village Garhiya Lal Khera. THEy along with one unknown person emerged from bushes and shrubs. THE unknown person had masked his face and was aimed with a country made pistol and a lathi. THE accused Mamma, Mohammad Jan and Hasnain were armed with a Gandasa, a Kanta and a gun. respectively. THEy uttered that they would kill Bunda Khan while asking others to stay away. THEreafter they started assaulting Bunda Khan with Gandasa,. Kanta and Lathi. THE other persons tried to save Bunda Khan whereupon the accused Hasnain asked them to stay away, otherwise they would kill them. THEy were all unarmed. THEy were raising alarm while standing. THE accused ran away towards south after murdering Bunda Khan. Bunda Khan received serious injuries on his face, neck, head and hands. Ata Mohammad got a report Ex. Ka-1 written, by one Triveni Sahai Misra on his dictation about the incident. He took it to the police station Katra, where he handed it over to the constable clerk Muneshwar Dayal, who on its basis prepared a check report Ex.-Ka-11 and registered a case in the General Diary at serial No. 38, an extract of which is Ex. Ka-12. After registration of the case, its investigation was entrusted to the then S. O. Sri Murari Lal Sharma, who visited the, place of occurrence and prepared the inquest report. He observed necessary formalities and sent the dead body to the mortuary for post-mortem examination. Dr. M. M. Lal conducted the post-mortem examination on the dead body of Bunda Khan and found the following ante-mortem injuries thereon : 1. A large incised wound 20 cm x 8 cm x vertibral column deep running transversely across the right side and front of neck beginning from the back of neck in mid line across the right side of neck upto a point 3 cm to the left of neck above the level of thyroid cartilage, cutting all the muscles and vessels of neck and dividing the third carvical vertibra through and through so that the head is lying loose drooping to one side. Trachea is also cut completely above the thyroid level. 2. Incised, wound 6.8 cm x 1 cm x bone deep from the back of neck slantingly across the right side neck upto angle of mandible upto middle of lower part of face on right side cutting the mandible in several places. 3. Incised wound 9 cm x 1 cm x bone deep transversely across the left side of head 6 cm above the left ear cutting the left parital and frontal bone to the entire depth but the meninges not. injured. 4.Incised wound 10 cm x 1.5 cm x bone deep transversely across the right side head dividing the right ear in two running upto the back of neck cutting the right temporal and occipital bone underneath upto back half of the thickness of bone. 5. Incised wound 2 cm x 0.3 cm x bone deep slantingly along the middle of forehead, 4 cm above root of nose 6. Incised wound 3 cm x 0.3 cm x bone deep along the middle and front of head meeting injury no. 5. 7. Incised wound 9 cm x 3 cm x muscle deep on the left side neck upper part running slantingly acorss upto left angle of mandible breaking it in two pieces. 8. Incised wound 6 cm x 2 cm x bone deep on the left side head running transversely across close to ear cutting the ear in two, also cutting the left temporal bone upto half of its thickness. 9. Nose has been out off almost (hanging by a piece of skin and soft tissues) by several incised wounds, intersecting each other and making wound 4 cm x 4 cm x bone deep (nazal bone and its cirbriform plate broken). 10. Incised wound 6 cm x 1.8 cm x bone deep on the left side of face (slantingly across the middle of the face) cutting the mandible in pieces. 11. Incised wound 1 cm x 0.5 cm x skin deep on the outer part of the right shoulder. 12. Incised wound 6 cm x 2 cm x skin deep on the outer part of left hand at the root of thumb. Upon the internal examination of the dead body the medical officer found sesophagus out under injury no. 1. Thick liquid food about 120 grams was present in the stomach and some food in small intestines, faecal matter in large intestines and bladder empty. According to him, weight of heart of the deceased was 220 grams and death was caused due to shock and haemorrhage especially due to ante-mortem injury no. 1. According to the medical officer (PW 2) injury nos. 1, 2, 3, 4, 5, 8, and 10 could have been cansed by heavy cutting weapon like Gandasa and the rest of the injuries could have been caused by soft (or light) blow of heavy cutting weapon or by light cutting weapon like Kanta. He also opined that the death of the victim could have been caused on 6-12-78 at 5,00 P.M. that victim would have died immediately after getting injury no. 1, that was, in itself, sufficient to cause death in the ordinary course of nature. He prepared post-mortem report Ex. Ka-3.
(3.) ON the receipt of the post-mortem report and after the completion of the investigation into the case, the Investigating Officer submitted charge-sheet against these accused. The prosecution examined Ata Mohammad PW 1, Dr. M. M. Lal PW 2, Ballu Khan PW 3, Murari Lal Sharma PW 4 and Muneshwar Dayal PW 5 and relied upon certain documents in support of its case.;