- (1.) The sole appellant Nain Singh has filed this appeal under Section 374 Criminal Procedure Code against the judgment and order dated 29.7.1982 passed by IInd Additional Sessions Judge Ghaziabad in Sessions Trial No. 106 of 1980 arising out of Crime No. 569 of 79, police station Modi Nagar District Ghaziabad by which the trial Court sentenced him to life imprisonment for offence under Section 302, IPC.
(2.) The incident had occurred on account of dispute between the two sides with regard to taking of water from a canal for irrigation of their fields. This incident occurred on 8.7.1979 at 1.30 a.m. in village Phaphrana Police Station Modinagar District Ghaziabad. The prosecution case is that deceased Omvir s/o Khem Chand was irrigating his field by taking water from canal and at that time Satya Pal, his real brother Onkar and Bhola were also present there in the field. At about 1.30 in the night appellant Nain Singh alongwith Satyavan, Mangali and Roshan reached there and asked the deceased Omvir for diverting water to his own field Omvir did not agree to this which resulted into altercation and exchange of abuses between them. It is alleged that the appellant Nain Singh and three co-accused then opened assault on Omvir with lathi and Ballam. Nain Singh with an intention to cause death gave a ballam blow causing injury on the neck of Omvir. This ultimately proved to be fatal and Omvir died on account of this injury at 9.15 a.m. the same day. The informant Jai Pal Singh on receiving information about the incident rushed to the place of occurrence and lodged report of the incident on the same day at 2.30 a.m.
(3.) Injuries suffered by Omvir Singh were examined by doctor at M.M.G. Hospital Ghaziabad at 4.00 a.m. and following injuries were found on him. (i) Incised wound 3/4" x 2/10" x depth not probed on the front of neck 2'1/ 2" above upper border of manubrium bleeding present. Advised X-ray. (ii) Incised wound 4/10 "x 1/4" bone deep on the middle of chin 1'1/2" above injury No. 1. Bleeding was present. X.ray advised. Injuries were fresh and in the opinion of the doctor were caused by sharp edged weapon. Subsequently the post-mortem examination of Omvir's body was conducted by Dr. Vijay Singh P.W. 4 on 9.9.1979 at 3.00 p.m. He had noticed stitched wounds on the neck and chin of the deceased and some diffused swelling on the top of the head and contusion on the back of right forearm. Giving his report as Ex. Ka.2 the doctor opined that death was result of asphyxia due to injury on larynx.;