- (1.) D. K. Trivedi, J. The present criminal appeal is directed against the judgment and order dated 20-12-95 passed by Vth Addl. Sessions Judge, Lakhimpur Kheri convicting appellant Ram Naresh under Section 302, IPC and sentencing him for imprisonment for life.
(2.) IT is an admitted fact that deceased Anup Ram was the real brother of appel lant Ram Naresh. A report was lodged by Smt, Ram Beti wife of Anup Ram (deceased ). The appellant as well as PW-1 Ved Prakash, and PW-2 Har Dayal are real brothers of deceased Anup Ram. IT is said that all the brothers of deceased Anup Ram used to live in viilage-Kashipur, PS. Pasgawan, District Lakhimpur Kheri. Ac cording to the prosecution case on 28-6-93 at about 6 a. m. Anup Ram was cutting 'patawar' and his wife was collecting the said 'patawar'. Appellant Ram Naresh came out behind the 'patawar1 armed with spade and caused spade blow on the head of Anup Ram (deceased ). Anup Ram (deceased) then fell down receiving the injuries and became unconscious. Smt. Ram Beti then raised an alarm and on hearing the alarm, several persons includ ing the brothers of the deceased who were working in nearby field, reached there and caught hold of accused Ram Naresh with the help of the two constables. IT is said that the two constables also reached there and they also caught hold of accused Ram Nareshjust after the incident alongwith spade. Thereafter, Smt. Ram Beti went to the police station Pasgawan and lodged a report (Ext. Ka-5) on the same day i. e. , 28-6-93 at about 9. 15 p. m. The distance of the police station from the place of the incident is about 4-1/2 Kms. Accused Ram Naresh was also handed over alongwith the said 'spade' to the police at the time of lodging of the FIR Pw-4 Amrit Lal, con stable registered the case at the police-sta tion. A memo Ext. Ka-4 was also prepared in respect of the blood stained spade. Thereafter, the case was investigated and finally a charge-sheet was submitted by the police against accused Ram Naresh. As deceased Anup Ram was in an injured condition therefore, he was sent to P. H. C. Pasgawan immediately by PW-4 constable Amrit Lal. He was medically examined by PW-6 Dr. Shiv Prakash Gautam on 28-6-93 at about 9. 50 p. m. It is said by PW-6 Dr. Shiv Praksh Gautam that Anup Ram was dead when he reached P. H. C. but in spite of this the doctor ex amined the injuries of Anup Ram. There after, PW-7 Dr. S. Prakash conducted autopsy on the dead body of deceased Anup Ram on 29-6-93 at 4. 00 p. m. and the doctor found the following ante-mortem injuries on the dead body of deceased Anup Ram: 1. Incised wound 16 cm x 2 cm x at the top of the Head. It is bone deep 3 cm above left ear pinna and 8. 5 cm above right ear pinna. Margin sharp, spindle shape tapening at both the ends. Scalp bone cut through and through and part of brain coming out. On internal examination, the doctor found that the stomach of the deceased contained 100 gms. of food material and small and large intestines were full of Gas and Faecal matters. According to the doc tor, the death of the deceased was caused due to coma on account of injury No. 1. The post-mortem report is Ext. Ka-7. The prosecution in support of its case, examined as many as seven witnesses, out of them P W-1 Ved Prakash, PW-2 Har Dayal, PW-3 Roshan Lal and PW-5 Smt. Ram Beti are the witnesses of fact. PW-1 Ved Prakash and PW-2 Har Dayal are real brothers of accused Ram Naresh and they did not support the prosecution case, and therefore, they were declared hostile. PW-3 Roshan Lal is also resident of the same village Kashipur but he also did not sup port the prosecution case and, therefore, he was also declared hostile. However, all the three eye-witnesses stated that Anup Ram was killed at about 6 p. m. PW-4 Amrit Lal, Constable proved the registra tion of the case as well as other entries made in the G. D. PW-6 Dr. Shiv Prakash Gautam examined injured Anup Ram at the P. H. C. Pasgawan. PW-7 Dr. S. Prakash conducted autopsy on the dead body of deceased on 29-6-93 at about 4 p. m.
(3.) ON the other hand the accused denied the prosecution case and stated that he has been implicated in this case due to enmity. The learned Vth Addl. Sessions Judge, Lakhimpur Kheri after scrutinizing the evidence on the record, came to the conclusion that the prosecution has suc cessfully proved the guilt of the accused-appellant beyond reasonable doubt and therefore, he convicted and sentenced the accused-appellants mentioned above. The accused-appellant aggrieved by the said judgment and order filed an appeal from Jail. As the appellant is not represented by any counsel, therefore, we appointed Sri Vivek Kshottri, Advocate of this Court as amicus curiae to argue the case.;