N.L.Ganguly, J. - (1.) SHEO Murat has filed this Criminal Appeal against the Judgment and order dated 21.6.1988 passed by Sri G. D. Dubey. Sessions Judge, Varanasi convicting and sentencing the appellant to life imprisonment under Section 302, I.P.C. and further convicting and sentencing him to life imprisonment under Section 307, I.P.C. and further six months R.I. under Section 323, I.P.C. All the sentences were ordered to run concurrently.
(2.) THE appellant Sheo Murat is the father of co-accused Ram Shanker. Both were rommitted to the Court of Session for trial under the afore-mentioned Sections. Accused Ram Shanker was charged for the aforesaid offences but with the aid of Section 34,I.P.C. The prosecution case is that Bhusi Ram, Suchit and appellant Sheo Murat are residents of village Atesna, P. S. Cholapur, district Varanasi and are close neighbours. Bhusi Ram and Suchit are real brothers, Smt. Ramapati is the wife of Suchit and Mahodar is the daughter of Suchit. Suresh alias Chhutal is the son of Suchit. The old house of Bhusi Ram was constructed on the land belonging to Sheo Murat appellant, which is towards south of the house of the appellant. They were residing therein since the time of their ancestors for more than 30 years. Sheo Murat appellant was pressing Bhusi Ram to vacate this land. Bhusi Ram constructed another house near the aforesaid house and removed the building materials of the old house. Sheo Murat was pressing that Bhusi Ram should leave the building materials of the old house. Bhusi Ram and others had taken away their materials. Consequently, Sheo Murat used to abuse and threaten to kill Ram Surat, S/o Bhusi Ram and Suresh. About a year before the occurrence, i.e., on 17.2.1985 Bhusi Ram lodged a report (Ext. Ka. 1) in which he had complained of the threats given by the appellant to the reporter and his family. The occurrence is said to have taken place at about 8 a.m. on 24.11.1986. Suresh was going to sell milk after loading two milk containers (Balta) on a cycle. He was proceeding towards north of his house. 2-3 minutes after he had left his house, he raised an alarm. On hearing the alarm. Bhusi Ram his brother, Suchit, his daughter-in-law. Jawahar and the wife of Suchit ran towards the place of occurrence. They saw that Suresh was being assaulted with lathi by appellant Sheo Murat in the field of peas of Narain. The witnesses raised an alarm. Seeing the witnesses coming towards him, the appellant Sheo Murat called his son Ram Shanker co-accused, to bring the Gandasa which he had prepared beforehand. Hearing this alarm, the witnesses stopped but the mother of Suresh Smt. Ramapati went near her son. The appellant Sheo Murat gave lathi blow to her and she fell down. Meanwhile, Ramshanker brought the Gandasa and handed it over to the appellant Sheo Murat. Sheo Murat handed over his lathi to Ramshanker who went away. Sheo Murat assaulted Suresh with Gandasa. After assaulting Suresh. Sheo Murat rushed towards the house of Bhusi Ram shouting that he will kill Ram Surat, son of Bhusi Ram. When found that Ram Surat was not present at the house, he rushed towards the field of Bhusi Ram towards south-east. While rushing towards the field, the accused was shouting saying that Ram Surat must be at the field and he will kill him there. Ram Surat was returning after ploughing his field with plough on his shoulder. His son Ram Asrey was bringing bullocks. When they reached near the Mahaua tree on the Chak road leading towards the village, the appellant was seen by Ram Surat. Ram Surat threw his plough and tried to run away. The appellant assaulted Ram Surat with Gandasa. This occurrence was seen by Bhusi Ram. Jawahar and his daughter-in-law. After assaulting Ram Surat. the appellant Sheo Murat ran away brandishing his Gandasa and threatening the witnesses. When Bhusi Ram went near his son, he found that after wriggling with pain Ram Surat died at the spot.
(3.) AFTER the occurrence, Bhusi Ram wrote a report Ext. Ka. 2 and went to the police station and handed it over to the Head Moharrir Mahant Pandey of P. S. Cholapur, who registered the case and prepared chik report Ext. Ka. 5. He made an entry in the G. D. Copies of the original report, chik report and the G. D. were proved in the case and marked as Exts. Ka. 2. Ka. 5 and Ka. 6 respectively. The investigation of the case was taken up by Sri Babu Lal Sharma P.W. 11, who first went to the place of occurrence and took the dead body of Ram Surat in his possession. He prepared inquest report Ext. Ka. 8, photonash Ext. Ka. 9. Challannash Ext. Ka. 10, letter for post-mortem examination Ext. Ka. 11. He handed over the dead body of Ram Surat in a sealed cloth to the constables Laxman Prasad P.W. 10 and BriJ Bhushan. The dead body was taken to the mortuary of the Banaras Hindu University. Thereafter, the I.O. interrogated Bhusi Ram, Ram Asrey. Jawahar and other witnesses. He collected blood-stained earth and simple earth from the place of occurrence where Ram Surat had died and prepared a recovery memo Ext. Ka. 12. He had also inspected the site and prepared the site plan Ext. Ka. 13. Thereafter, the I.O. inspected the site where Suresh was assaulted. He took plain and blood-stained earth and shoe of Suresh in his possession and prepared memos Ext. Ka. 14. He also prepared a site plan of the place where Suresh had fallen after receiving injuries. The said site plan has been proved and marked as Ext. Ka. 15. The I.O. had prepared the memo for examination of Smt. Ramapati and sent her to the Primary Health Centre, Cholapur for examination. Dr. P. N. Rai P.W. 5 had examined the injuries of Smt. Ramapati at 7 p.m. on 24.11.1986. The injuries found on her person by the doctor are quoted as under : 1. Diffused swelling left leg with complaint of pain and difficulty in walking. Advised X-ray left leg. 2. Contusion 11 cm. x 2 cm. left side back middl\e part. The doctor kept injury No. 1 under observation. Injury No. 2 was opined to be simple. The duration of all the injuries was stated to be half a day. The doctor had prepared injury report Ext. Ka. 3.;