K.K.MISRA, J. - (1.) THIS appeal arises out of the judgment and order dated 223.1980 passed by Shri P.C. Saxena, the then Session Judge, Pilibhit in Session Trial No. A -189 of 1979 State v. Brahma Swaroop and others, convicting the appellants under Section 302/34 I.P.C. and sentencing each of them to undergo life imprisonment.
(2.) THE brief facts of this case are that on 17 -10 -79, the deceased Ram Singh had gone to Bisalpur in connection with the Pairvi of a case which was pending between Pooran and the accused and from there he was to return by bus in the afternoon. He and Pooran used to get down from the bus at Bilsanda and. due to enmity of the accused persons with the deceased, some of his sons used to receive him at Bilsanda Bus Stand wherefrom they used to come together on foot. On the day of incident also, two sons of the deceased, namely, Jhabboo Singh, informant P.W. I and Pahalwan Singh along with their uncle Khurram Singh P.W. 2 met the deceased at Bilsanda Bus Stand at about 4.30 P.M. Pooran was also in the company of the deceased at that time and these five persons started journey on foot towards their village. At about 5 P.M. when they reached near the grove of Durga Bhurji in the Banjar land of village Hempura, accused Brahms waroop came out from behind the Neem tree and assaulted the deceased with Kanta which hit him on the head. When the deceased turned back and started running, the remaining three accused persons, namely, Mool Chand, Tribhuwan Singh and Nathu Singh who had hidden themselves behind the eastern Khai of the aforesaid grove came out with weapons in their hands. At that time Nathu Singh accused was armed with Suja and Mool Chand and Tribhuwan Singh were armed with Kantas. All these four accused surrounded Ram Singh deceased and assaulted him with their respective weapons. This occurrence was seen by Jhabboo Singh, the first informant Pahalwan Singh, Khurram Singh, P.W. 2 and Pooran Singh, P.W. 4. They shouted for help but as there was none in the vicinity, they had no alternative but to flee away from the place of the occurrence. When they came back after collecting certain persons from the village, they found that the accused had already left the place of occurrence and Ram Singh deceased was lying dead. Jhabboo Singh, informant left some of those Persons near the dead body. He then scribed the report at the “Arhat” shop of one Jwala and thereafter lodged the F.I.R. at the Police Station Bilsanda district Pilibhit at 7.15 P.M. The investigation of the case was entrusted to S.I. Daya Ram Dube, P.W. 6 who rushed to the place of occurrence and conducted the inquest of the dead body, which was sent by him for post mortem examination. At the trial, the prosecution in order to prove its case against the accused produced six witnesses in all. Out of them Jhabbo Singh P.W. I, Khurram Singh, P.W. 2, and Pooran, P.W. 4 were eye witnesses arid rest relate to post -mortem of the dead body of the deceased and the investigation of the case after its registration.
(3.) DR . A.K. Mehrotra, P.W. 3 conducted the post mortem examination on the dead body of the decease Ram Singh on 18 -10 - 79 at 3.30 P.M. The following ante mortem injuries were found on the dead body of Ram Singh, deceased who was aged about 60 years: 1. Incised wound 26 cm x 10 cm x through the buccal cavity oblique extending from the right side neck upto the left eye and right. Vertebrae column deep. The body of the fist cervical cut cleanly obliquely. The upper and lower -jaw tissue under the injury cut and the skull hanging with the help of skin only. (2) Incised Wound 16 cm x 4 cm on right side face x skull deep from in front of the right ear, hanging separated with a piece of skin. (3) Incised Wound 10 cm x 1.5 cm x brain cavity deep horizontal and in the post part of skull 18 cm from the fore - head more on right side of skull. (4) Incised Wound 10 cm x 1.5 cm x brain cavity deep on the left side scalp 8 cm from the left ear pinna. (5) Incised Wound 5 cm x 1 cm x bone deep on the Left side forehead vertical just above the left eye brow. (6) Incised Wound 4 cm x 1 cm x bone deep on the left side cheek horizontal just below the left eyes. Probably the continuation of injury. No. 5. (7) Incised Wounds three in number each about 1 cm apart on the chin and each measuring 3 cm X 0.5 cm. X skin deep extending from the middle of the chin and towards inside chin. (8) Incised Wound 4 cm X1 cm X buccal cavity deep on the right side face with the lower jaw cut under injury. The injury is 2 cm for injury No. 1 and anterior. (9) Incised wound 4 cm X 1.5 cm X bone deep on the ant aspect of the tip of right shoulder with the head of humerus cut under injury. (10) Incised wound 3 cm X 0.5 cm. X chest cavity deep on the right side back of the chest near midline 24 cm below the base of the neck. (11) Incised Wound 3 cm X 0.5 cm. X skin deep on the back of the chest in mid line 4 cm below injury, No. 10. (12) Punctured wound 3 cm X 1 cm X muscle deep on the right side back of the abdomen 14 cm above the right Iliac spine. (13) Abrasion 7 cm X 1.5 cm on the outer and middle aspect of right upper arm. (14) Two linear abrasions making a X shaped mark and measuring about 7 cm X 0.5 cm each on the upper part of right side abdomen 15 cm below the right nipple. (15) Linear abrasion 5 cm X 0.5 cm on the right side chest anteriorly 4 cm from the right nipple and near midline. (16) Punctured Wound at the left border of umbilicus. 2 cm X 1 cm X abdominal cavity deep. (17) Incised Wound 5 cm X 2 cm X bone deep at the base of 3 and 4 metacarpal and through the web of the two fingers extending on the palmer aspect of right hand. The web being cut. ;