- (1.) S. K. Jain, J. This criminal appeal has been preferred by the appellants under Section 374 (2) Cr. P. C. against the judgment and order dated 31-8-1982 passed by learned 7th Additional Sessions Judge, Azamgarh in Sessions Trail No. 192 of 1981, State v. Radhey Shyam and two Ors. , whereby the learned Additional Sessions Judge convicted appellant Radhey Shyam under Section 302 I. P. C. and sentenced him to undergo life imprisonment. Appellant Radhey Shyam was also convicted under Section 307 I. P. C. and sentenced to undergo rigorous imprisonment for a period of ten years and to a fine of Rs. 250/- and in default rigorous imprisonment for one year.
(2.) APPELLANTS Khurchun and Smt. Dulari were convicted under Section 302 read with Section 34 I. P. C. and sentenced to undergo imprisonment for life. They were further convicted for the offence under Section 307 read with Section 34 I. P. C. and sentenced to undergo rigorous imprisonment for seven years and sentenced to pay a fine of Rs. 100/- and in default of payment of fine a further sentence of rigorous imprisonment for a period of six months was imposed on each of them. Appellant Khurchun died during pendency of appeal and the appeal stands abated against him vide order dated 24-5- 2007. The prosecution case in brief is that Samharu and appellant Khurchun were brothers who were litigating in Civil Court over some land. It is further alleged that on 18-1-1981 at 8. 00 a. m. in village Zindopur, the first informant Smt. Surati Devi was scavenging the courtyard of her house and her brother Ram Shabd was leveling the floor of his hut. Because of enmity of land appellants Khurchun, Radhey Shyam and Smt. Dulari came there. Appellant Radhey Shyam was armed with a Gandasa (meant for cutting of fodder ). The three appellants pounced over Ram Shabd. Appellant Smt. Dulari caught his feet and made Ram Shabd fall on the ground. Deceased appellant Khurchun sat on the chest of Ram Shabd and appellant Radhey Shyam inflicted several Gandasa blows on the neck of Ram Shabd. The occurrence was witnessed by Smt. Surati who raised an alarm and rushed towards deceased Ram Shabd. She was caught by appellant Dulari, who caught her feet and made her fall on the ground. Appellant Radhey Shyam caused her injuries. It is further case of the prosecution that on alarm being raised wife of Kamal Dhari, Smt. Balwanta, Ram Nayan and brother-in-law of Smt. Surati, Mandev arrived. Man Dev was also assaulted by Radhey Shyam by Gandasa. It is further alleged that Ram Shabd died on the spot and Smt. Surati and Man Dev sustained injuries. Smt. Surati got the report scribed by one Subedar and went to the police station Bardah and lodged the same at 12. 10 p. m. The distance between the place of occurrence from the police station was ten miles.
(3.) ON the basis of this report made by Smt. Surati Ext. Ka-1 a chick report Ext. Ka-5 was written by P. W. 6 H/c Mulli Lal and case was registered by him in the GD report No. 14 at about 12. 10 p. m. as per Ext. Ka- 6. The two injured namely, Smt. Surati and Man Dev were sent for their medical examination. Their injuries were examined at PHC Thekma. Their injury reports are Ext. Ka-2 and Ka-3 on the record. PW7 Kamleshwar Pandey who was posted as Station Officer, took up the investigation, recorded the statement of Mulli Lal Head Constable, Surati and thereafter along with constable and one Sub- Inspector went to the place of occurrence, held inquest of dead-body of Ram Shabd prepared its report Ext. Ka-8. After sealing the dead-body of Ram Shabd and preparing necessary papers for post-mortem sent the same for post-mortem to Sadar Hospital, Azamgarh. From the place of occurrence he took the blood stained and ordinary earth into his possession, sealed the same and prepared recovery memo Ext. Ka-15 and after preparing the site plan Ext. Ka-16, he remitted the charge-sheet Ext. Ka-17 against the accused persons. Pw2 Dr. N. K. Singh on 18-1-1981 conducted the medical examination of Smt. Surati and found the following injuries on her person : (1) Incised wound 11 cm x 4 cm x 3 cm on back side of right chest on 10th 11th 12th ribs. (2) Incised wound 1cm x. 5 cm x 2 mm on the right shoulder joint. (3) Incised wound 2 cm x 1 cm x 1 mm on left hand. (4) Incised wound 3 cm x 1 cm x 3 cm on the left fore head. (5) Contusion red in colour 3 cm x 2 cm on sternum in the inter mammory region.;