Pratyush Kumar, J. - (1.) The present appeal, filed under Sec. 374 Cr.P.C. by the accused -appellants, is directed against judgment and order dated 23.5.1994 passed by Sri K.S. Rakhra, the then Sessions Judge, Gonda in ST No. 144 of 1993 (State of U.P v/s. Khushiyal alias Hussain Ullah and another) under Ss. 302/307/323 IPC, P.S. Colonelganj whereby he convicted and sentenced the appellant No. 1 Khushiyal alias Hussain Ullah with imprisonment for life and fine of Rs. 2,000/ - u/s. 302 IPC, with rigorous imprisonment of five years and fine of Rs. 1000 u/s. 307 I.P.C., with rigorous imprisonment of six months u/s. 323 IPC and the Appellant No. 2 Sayyad Ali with five years rigorous imprisonment and a fine of Rs. 1,000/ - u/s. 307 IPC read with Sec. 34 I.P.C.
(2.) The facts giving rise to the present appeal are as under: "On 29th December, 1992 at 10.40 A.M. Isarael gave a written report stating therein that at about 9 A.M. he was standing in front of his door, near the water tap. Between his neighbor Husainullah alias Khushiyal and his brother Hasan Ullah heated exchange was taking place. During this verbal exchange Husainullah alias Khushiyal asked him why he was standing there and slapped him, after returning home he told his mother about that. His mother Smt. Khairul Nissa went along with him to make complaint. At that, Husainullah alias Khushiyal brought farsa from his house and he along with his son Sayyed Ali struck farsa blow on the neck of his mother, who fell down. Meanwhile his father Mohd. Sharif came there. He was also given farsa blow. Dayal, Basharat, Siddiqui and other villagers saw the occurrence and intervened. In critical condition he had brought his mother to police station. He requested that after lodging of the FIR necessary action be taken."
(3.) On this written report, chick FIR Ex Ka -2 was scribed. Case Crime No. 572 of 1992 under Ss. 307/324/323 IPC was registered at P.S. Colonelganj and requisite entry was made in the general diary, copy whereof is Ext. Ka -3. Injured were sent for medical examination and treatment to PHC Colonelganj. Investigation was started. On 11.55 A.M. on that date Khairul Nisa expired. During medical examination conducted on 29th December, 1992 on the person of Mohd. Sharif the following injuries were found: "1. Incised wound 9 cm. x.8 cm. x bone deep, on left side of head, just above eye -brow. Bleeding was present and margins were clean cut. 2. Incised wound 6 cm. x 1 cm. x bone deep, on the left side of head, just above the left ear. Margins were clean cut. Bleeding was present. 3. Lacerated wound 1 cm. x.5 cm. on the outer aspect of upper part of right fore -arm. Bleeding was present vide Ext.Ka -5.";