Gangeshwar Prasad, J. - (1.)Baldeo and his wife Smt. Khiliya were tried by the Sessions Judge of Rampur for committing the murder of Gokul and for causing simple hurt to his son Bhura. The learned Judge convicted Baldeo Under Ss. 304 IPC and 323 IPC and sentenced him to ten years' rigorous imprisonment and six months' rigorous imprisonment respectively under the aforesaid sections; while he convicted Smt. Khiliya Under Sec. 323 IPC only and sentenced her to simple imprisonment till the rising of the court. Baldeo has preferred an appeal against his convictions and sentences, while a notice has been issued to him by this Court to show cause why his acquittal of the offence Under Sec. 302 IPC with which he stood charged should not be set aside and he should not be convicted under that section.
(2.)Appellant Baldeo is the son of Debi deceased from his wife Smt. Himiya. After the death of Debi Smt. Himiya married Gokul and from that union was born Bhura. The Appellant and his wife Smt. Khiliya lived in the same compound in which Gokul and Bhura lived, although they occupied a separate portion of it. The case of the prosecution is that there was a dispute between the Appellant on one hand and Gokul and Bhura on the other regarding the Division of the compound. Panchayats of the village people had been held for the settlement of the dispute and the Panches had determined the shares of the parties, but Baldeo had refused to accept and abide by their decision. It is alleged that at about 10.00 O'clock on the night of 9 -6 -1963, while it was drizzling, Baldeo and Bhura badly needed some dry place inside the compound for tying their cattle. Bhura asked the Appellant to let him have some place for the above purpose but the Appellant refused to do so and his, wife Smt. Khiliya started abusing Bhura.' Bhura asked Smt. Khiliya not to indulge in abusive language whereupon the Appellant and Smt. Khiliya began an assault on Bhura. The weapon said to have been used by Smt. Khiliya was a lathi, but there are divergent versions about the weapon which the Appellant used. However, according to the prosecution, Gokul arrived at the place of the assault in the meantime and he too was attacked by the Appellant and Smt. Khiliya and was in the end given a spear thrust in his chest by the Appellant. As a result of the spear injury Gokul died on 10 -6 -1963 in the hospital.
(3.)A report about this occurrence was lodged by Bhura at the police station a distance of about four miles from the village where the occurrence took place, at 6.15 a.m. the next morning and it was recorded as a report for an offence Under Sec. 323/324 IPC. After the receipt of the result of the post -mortem examination on the dead body of Gokul the case was converted into one Under Sec. 302 IPC. The post -mortem examination showed that Gokul had received two contused wounds on the head and a punctured wound (3/4" Ã - 1/4" deep down to the chest and the abdominal cavity) which had punctured the pleura underneath it and pierced the left lung through and through. The medical examination of Bhura disclosed that he had received twelve injuries, all caused by some blunt weapon.