- (1.) KUNDAN Singh, J. This appeal has been preferred against the judgment and order elated 11-9-78, passed by Sri R. A. Singh, the then Sessions Judge, Fatehpur, in ST. No. 154 of 1978, whereby Sukkha, Jhalla and Jai Lal have been convicted under Sections 302/34, I. P. C. and sentenced to imprisonment for life. Sukkha has furhter been convicted under Section 323, I. P. C. and sentenced to two months' R. I. , while Jhalla and Jai Lal have also been convicted under Sections 323/34, I. P. C. and sentenced to two months' R. I. , making all the sentences to run concurrently. The prosecution case in brief is as follows:
(2.) SHAHZAD informant and Ulfat are brothers of Shaukat Ali deceased, Razzaq is son of Ulfat (PW-2 ). He was mentally weak. On 30-7-77, after easing himself Razzaq took ablution in a pond and at about 8. 00 a. m. he was jerking his hands to wipe out the water. In the meantime Sukkha accused-appellant happened to be there. While Razzaq was jerking his hands some drops of water fell on Sukkha also. That enraged Sukkha and he gave slaps to Razzaq, who went to his house weeping and narrated about all that what had happened with him. Thereupon Ulfat (PW-2) and Shaukat (deceased) went to the house of the accused at about 5. 00 P. M. and asked Sukkha why he had slapped the boy. Sukkha rather expressing regret for his wrong he misbehaved with Shaukat. In retaliation Shaukat Ali also scolded Sukkha. Ulfat had, however, pacified the situation at that time and brought Shaukat back to home. On the same day, i. e. 30-7-77, at about sun set after milching his cattle in Bagar the deceased was carrying milk to his house. As soon as he reached near Tirath's well he was way laid by Sukkha, his brother Jai Lal and his fellow villager Jhalla, who were armed with lathi and pharsas, respectively. Shaukat Ali cried. On hearing his screeches Ulfat, his cousin brother Zulfi and two neighbours, namely, Bakridi and Rasool came rushing. Jai Lal exhorted his companions to assault Shaukat Ali who had come to their house to insult them. Thereupon Sukkha hit the deceased with the butt-end of his lathi and Jhalla gave pharsa blows on his head. Shaukat fell down in the injured state. Ulfat tried to save Shaukat Ali but he was also dealt lathi blows. The witnesses reprimanded the accused, who thereafter had run away towards south. Shaukat Ali writhed with pain and died on the spot. SHAHZAD got a report scribed and at 11. 00 p. m. left for P. S. Next day he lodged the F. I. R. at 5. 00 a. m. at police station Lalauli, which was 8 miles from the place of occurrence. Pw-8 Prem Chandra, S. O. of Police Station Lalauli, took the investigation in his own hand and recorded the statements of Head Muharrir Vishwanath, informant Shahzad and Rasool Khan at the police station itself. Thereafter he proceeded to the village where the incident had occurred. He reached there at 10. 45 a. m. There he prepared the inquest report and sent the dead body to Mortuary for post- mortem examination. He also recorded the statements of Ulfat, Zulfi, Bakridi and other witnesses. He sent Ulft injured also for medical examination. He tried to interrogate Razzaq but he could not tell any thing, being out of mind. He also inspected the spot and prepared its site plan. Then he took the blood stained and ordinary earth into custody and prepared necessary recovery memos. He recorded the statements of some other witnesses also and made search for the accused but they could not be found. Ulfat was medically examined at 8. 00 p. m. on 31-7-77 by Dr. S. K. Rastogi (PW-7) who found 3 contusions and 2 abrasions on his person and those injuries, in the opinion of the doctor, were simple. Autopsy on the dead body of Shaukat Ali was conducted by Dr. B. R. Bajpai, Medical Officer, at 2. 00 p. m. on 1-8-77. He found 3 incised wounds and 3 contusions on his body. After the transfer of Prem Chandra, S. O. , Sri M. C. Dubey (PW-6) complete other necessary formalities in relation to the investigation and submitted charge-sheet in court against all the three accused persons.
(3.) THE prosecution examined 8 witnesses in all and filed affidavits of Chaukidar Chunka and Mohd. Ashraf constable to prove its case. Out of them, PW-1 Shahzad, PW-2 Ulfat and PW-3 Bakridi have been examined as witnesses of the factum of incident, while others were cf formal character. As usual all the accused persons took the plea of rien culpa and denied the prosecu tion version. THEy stated that they have been falsely implicated in the present case due to previous enmity. Sukkha further stated that he was not present at the place of occur rence. Zulfi, Shaukat, Ulfat are cousin brothers and he had a dispute with Zulfi about Sahan. Shaukat was helping Zulfi. He was a bad character and bad elements used to visit him. Jhalla stated that he had a dispute with Rasool about certain land and he has been involved in the present case at his instance. Jhalla disclosed his age as 17 years on 22-8-78 in his statement recorded under Section 313, Cr. P. C. THE accused also examined one Satya Deo as D. W. 1 in order to prove that the special report was received by the D. M. on 1-8-77. Learned Sessions Judge after going through the evidence on record held the accused persons guilty of the offences charged with and accordingly he convicted and sentenced them as aforesaid.;