Palok Basu, J. - (1.) THIS appeal has been filed by the two brothers Gaudas and Shyam Lal against the judgment and order dated 27-4-1979 passed by III Additional Sessions Judge, Jaunpur in Session Trial No. 84 of 1978. By the aforesaid judgment Gaudas has been convicted under section 302 IPC whereas Shyam Lal has been convicted under section 302 IPC read with section 34 IPC and both of them have been awarded the sentences of imprisonment for life.
(2.) CHARGE against the appellants was that on 10-9-1979 at about 8.30 p.m. near the southern gate of Tilakdhari College of Jaunpur City, Line Bazar, Police Station Kotwali, district Jaunpur, Rampher was done to death by causing injury intentionally with the scissors which was struck by appellant Gaudas and the appellant Shyam Lal had caught hold of the deceased Rampher with a common intention to cause the death of the decased. According to the prosecution case at about two or three days prior to the occurrence in question a quarrel took place between the appellants and Rampher. An application was moved by Rampher addressed to Superintendent of Police, Jaunpur. The fact of making of this application by the deceased has been duly proved by PW 10 Bishwanath Sahai who has proved the handwriting. It is said that on 10-9-1979 at about 8.30 p.m. the deceased Rampher was confronted with by the, two accused Gaudas and Shyamlal who were coming from the direction of the city through the road which runs from north to south and exists in front of T.D. College. The two accused started abusing him. In consequence thereof a quarrel occurred between deceased Rampher and the two accused. At that time on the electric pole on the road side, a bulb was glowing and on the the two Gumits near the gate the barrs' were burning. One of the 'Gumti' belonged to informant Lallan (PW I) in which he was having a betal shop, while the another Gumti situated on the southern eastesn corner of the gate belonged to Balchand (PW 2). The quarrel amongst the deceased Rampher and the two accused attracted the informarnt Lallan (PW 1), Balchand (PW 2) and others and the witnesses saw that the appellant Shyam Lal caught hold of daceased Rampher and the appellant Gandas struck scissor suddenly on the chest of Rampher, as a result of which Rampher (deceased) fell down and died. Consequently, the witnesses reached the place atonce and gave a chase but could not catch the appellants. Shortly after the occurience the informant Lallan proceeded to police outpost of the bazar which was at a distance of about one furlong from the place of occurrence and lodged verbal report at 8.50 p.m. which was registered by PW 3 Ambika Prasad, posted at the said out-post as Head Constable, at serial no. 21 of the general diary through Ext. Ka-1, PW 3 Ambika Prasad Shukla immediately went to the place of occurrence along with other constables. Constable Dileep Kumar Pal (PW 11) was deputed by Ambika Prasad Shukla (PW 3) to go to the police station Kotwali to lodge the verbal first information report. According to the statement of the canstable Dileep Kumar Pal (PW 11) a first information report was lodged at police station Kotwali, district Jaunpur at 9.20 p.m. and the chik first information report Ext. Ka-3 was prepared and a case was registered at serial No. 47 of general diary proved as Ext. Ka-4. Kamil Siddiqui (PW 8) S.I. was present at the police station who recorded the statement of Dileep Kumar Pal (PW 11) at the police station and proceeded to the place of the occurrence. He found Ambika Prasad Shukla and some other constable persons present there but the eye witnesses had left by then. Having become already late, inquest proceeding was not held the same night and it was held the next day after 6.00 a.m. the dead body was thereafter entrusted to Constables Lacha Ram and Surya Deo Lal for the post mortem examination. At about 4.00 p.m. on 11-9-1977 the autopsy was conducted on the dead-body of Rampher by Dr. R. P. Rastogi (PW 5) and it was" found that the deceased was a middle aged man of about 50 years and of average built. The rigor-mortis was present in upper and lower of the body. The abdomen was distended and there was greenish discolouration on the abdomen. The mouth and right eye were closed and the left eye was half opened. The doctor found the following ante-mortem injuries. 1. Incised punctured wound 7.1 cm x 3 cm x chest cavity deep slightly oblique on the left side of chest 7 c.m. in and above left nipple of cm below the inner end of left clavicle 10 cm outer towards line of body. Upper end of the wound was lacerated while the lower end of wound was clean cut. The margins of wound were also clean cut. The wound was directing downwards and inwards. On internal examination the Dotor found that the chest walls under injury had been cut and third rib at the root was also found clean cut the pleure was also found cut with one ounce of blood in the left clavicle. The left auricle under the injury was also found cut in the length of 1.5 cm. In the opinion of the Doctor the death had occurred due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. The clothes of deceased were sealed into a bundle and handed over to the constable on duty. The Doctor was further of the opinion that the death had occurred about 3/4 day before.
(3.) THEREAFTER the investigating officer recorded the statement of eye witnesses including Lallan (PW 1) and Balchand (PW 2) on 11-9-1977, prepared a site plan and recovered the blood stained stones and plain stones from the place of the occurrence. In the meantime Dharamveer Singh (PW 9) had reached the police station and come to know of the incident and, therefore, rushed to the place of the occurrence and took over the investigation himself from Kamil Siddiqui S. I. (PW 8). He had also interrogated the appellants who in the meantime surrendered in the court of Magistrate. THEREAFTER by S. P. Shri Jamal Ashraf had taken over the investigation from S. O. Dharamveer Singh and on completion thereof submitted the charge-sheet as Ext Ka- 15 against the appellants on 30-10-1977. In order to prove its case only two eye witnesses, have been examined by the prosecution, which are Lallan (PW 1) and Balchand (PW 2). It may be mentioned here that Balchand (PW 2) has been declared hostile but a complete reading of his statement: proves beyond doubt that he has supported the major part of the prosecution story and lends corroboration to the eye witnesses account given by PW 1 Lallan. The other formal witnesses have also supported the prosecution story.;