- (1.) THIS criminal appeal is directed against the judgment and order of conviction dated 3-5-1980, passed by Sri K. C. Saran, the then Sessions Judge, Lalit pur, convicting the accused-appellants under Sections 302,114, IPC and 302, IPC respectively and sentencing them to un dergo imprisonment for life.
(2.) THE prosecution story briefly stated is as follows: THE accused-appellants Mulloo and Summa are real brothers. THEy are resi dents of village Oent, police station Jakhlaun, District Lalitpur. On 11-10-1979, at about 8. 30 a. m. accused-appellant Summa was taking a bath at the water tap near the house of the deceased Chukkha. THE deceased Chukkha objected to it saying that the ladies of the mohalia were waiting to fill water. Accused Summa abused him. THE deceased Chukkha asked accused Summa to refrain from abusing him. In the meantime Summa's brother Mulloo came on spot. He cut out buttons of Naseni with the help of Surya (a sharp edged weapons like Hasia) and handed over the pati Exh-1 to Summa and asked Summa that Chukkha should be killed. On this Summa rushed towards the deceased Chukkha and gave him a pati blow on the back side of his neck. THE deceased Chuk kha fell down by the side of his chest. He tried to get up but again fell down from the side of his back. This occurrence was wit nessed by Gopal (PW-2), Rabooda (PW-3), the brother of the deceased, Pyare Lal (PW-1), Bhajju (PW-4) and others. THE deceased was lifted by his brother Rabooda (PW-3) and Gopal (PW-2), He was kepi on a cot and while he was being taken to police out-post pati, police sta tion Jakhlaun, he succumbed to his in juries. Rabooda (PW-3) then went to his village and got a report Exh. Ka-11 scribe by Hira Lal Jain (PW-7) and started towards police out-post. When he reached about one and half furlong from his village, he met Head-constable Jogendra Singh (PW-11) who was coming from the opposite direction. He handed over the F. I. R. , Exh. Ka-11 to him. THE head con stable went to the village of the com plainant. He saw the dead body of the deceased and then went in search of the accused-appellants and succeded in ap prehending the accused-appellants from their houses. Head constable Jogendra Singh (PW-11) took the accused-appel lants and the complainant to police out post pali where he registered a case under Section 302, IPC against the accused-appellants and the investigation followed. (P W-5) S. I. Nand Kishore who was then working as S. O. Jakhlaun, district Lalitpur took up the investigation of the case. He recorded the statement of Bhajju (PW-4), Gopal (PW-2), Pyare Lal (PW-1) and Haridas. He also examined the ac cused-appellants and afler needful inves tigation into the matter submitted charge-sheet against the accused-appellants. After committal of the case before the court of Sessions the case came up for trial before the Sessions Judge, Lalitpur who framed charges under Section 302/114, IPC against the accused-appellant Multoo and under Section 302, IPC against the accused-appellant Summa. The accused-appellants pleaded not guilty and claimed trial. Accused appellant Mulloo further pleaded that hewas not present al the spot at the time of the occurrence. He stated that he was doing service at the house of one Sitaram Lahoria. He claimed that Hiralal Jain (P W- 9) the scribe of the F. I, R. had obtained a promisory note for Rs. 500/- from him. He was paying Rs. 500/-per annum to this Hira Lal Jain and had also been paying one quintal of food grains every year. He pleaded that he did not give the same in the year of the occurrence, he was, therefore, falsely implicated into this caseat the behest of Hira Lal. The accused-appellants did not adduce any evidence in their defence. The prosecution examined as many as 11 witnesses. Out of whom Pyare Lal (PW-1), Gopal (PW-2), Rabooda (PW-3) and Bhajju (PW-4) were the witnesses of fact and have given eye-witnesses account of the occurrence in question, (PW-5) Dr. R. P Gupta was the medical office of the district hospital Lalitpur who conducted the autopsy on the dead body of the deceased on 12-10-79 at 3. 30 p. m. and found the position as under: The deceased was aged about 45 years. He had died about one and half day back. His body was average built. Rigor Mortis passed off. Post-mortem staining and decomposition had started. Greenish discolouratation was there. Abdomen was distended. Eyes were closed. There was sub-conjunctural haemorrhage on right side. Coloured fluid was coming out from ear, nostrils and mouth.
(3.) THE Doctor found the following ante-mortem injuries on the person of the deceased: (1) Contusion 16 cmx 11 cm on right side scalp in the region of forehead, temporal region and right eye with sub-conjunctural haemor rhage right side. (2) Two abrasions 3 cm apart on hack right side upper part No. (1) 1 cm x 1 cm and No. (2) 2 cm x 1cm. (3) Contusion 10 cm x 8 cm on front of chest left side upper part. On internal examination of head and neck the doctor found sub-contenious haemorrhage under Injury No. 1. Membranes were congested, subdural haemorrhage on right side was there. He found haemorrhage also under injury No. 3 with fracture of IInd and IIIrd rib, left side, pleural cavity was full of blood.;