D.C.Srivastava, J. - (1.) This is an appeal against the judgement and order dated 26th November, 1979 of Daya Shankar, VII Additional Sessions Judge, Shahjahanpur, convicting the appellant under Section 304 Indian Penal Code and sentencing him to undergo ten years R.I. An oral report was lodged by village Chaukidar Shri Krishan unfolding the prosecution story briefly as under :
(2.) The village Chaukidar received an information at 8.00 P.M. on 6th January, 1979 that Mahega Singh was murdered by the appellant Makhan Singh in the Jhala where the house of the accused is situated. The village Chaukidar on this information went to village Jagdishpur. He was informed by Suchcha Singh that in the evening of occurrence at about 7.00 P.M. Mehega Singh was murdered by appellant Makhan Singh causing injuries by sword. He further informed the Chaukidar that besides him, Chandra Bhal, Ajudhi and Bahorey had also seen the occurrence. The village Chaukidar saw that the dead body of Mahega Singh was lying inside the Jhala. He thereafter went to the police station and lodged an oral F.I.R. Usual investigation proceeded. The Investigating Officer went to the scene of occurrence and made certain queries. The dead body was recovered inside the Jhala. He also took in his possession the torches of the witnesses. The witnesses saw the occurrence in their torch light. The torches were returned to the witnesses. Blood stained earth was found near the dead body. The blood stained and plain earth was taken in possession and a recovery memo was prepared. A Dibbi was giving light at the place of occurrence. It was also seen and its recovery memo was prepared. The blood stained pant was also taken in his possession by the Investigating officer and a recovery memo was prepared. Thereafter he sealed the dead body and along with the connected papers sent it for autopsy. The autopsy on the dead body was done on 8.1.1979 at 3.00 P.M. Five ante-mortem injuries were found on the dead body which consisted of three incised injuries and two punctured injuries. One incised injury was on the neck, second incised injury was on the back of right hand, the third incised injury was on the right side of abdomen, fourth injury was on the left side of abdomen and the fifth injury was on the left side upper part of back. The cause of death was shock and haemorrhage due to ante-mortem injuries.
(3.) The appellant pleaded not guilty and after controverting the allegations made by the prosecution, stated that between 8 and 9.00 P.M. his wife was in the adjoining Jhala. She raised alarm "Bachao" "Bachao". Thereafter the appellant saw that the deceased Mahega Singh was holding a sword and was standing near the cot of the wife of appellant. Mahega Singh gave two sword blows to the appellant, whereupon the appellant ran for saving him self. He in his defence examined Dr. V.K. Agarwal, who had proved the injury report of the appellant.;