N.S.GUPTA, J. - (1.) THIS criminal appeal is directed against the judgment and order of conviction dated 3-5-1980, passed by Sri M. M. Saran, the then Sessions Judge, Lalitpur, convicting the accused appel­lants under Section 302/114,1. P. C. and 302, I.PC. respectively and sentencing them to undergo imprisonment for life.
(2.) THE prosecution story briefly stated is as follows: The accused appellants Mulloo and Summa are real brothers. They are resi­dents of village Bent, 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 Mohalla were waiting to fill water. Accused Summa abused him. The deceased Chukka asked accused Summa to refrain from abusing him. In the meantime Summa's brother Mulloo came on spot. He cut out battons 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 Chukka 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 Chuk­kha 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 wit­nessed by Gopal (RW. 2), Rabooda (P.W. 3), the brother of the deceased, Pyare Lal (P.W. 1), Bhajju (P.W 4) & Ors. The deceased was lifted by his brother Rabooda (P.W 3) and Gopal (P.W. 2). He was kept on a cot and while he was being taken to police out-post pali, Police Sta­tion Jakhlaun, he succumbed to his in­juries. Rabooda (P.W. 3) then went to his village and got a report Exh. Ka 11 scribe by Hira Lal Jain (P.W. 7) and started towards police out-post pali. When he reached about one and half furlong from his village, he met Head-constable Jogendra Singh (P.W. 11) who was coming from the opposite direction. He handed over the F.I.R., Exh. Ka. 11 to him. The head constable went to the village of the complainant. He saw the dead body of the deceased and then went in search of the accused appellants and succeeded in apprehending the accused appellants from their houses. Head constable Jogcndra Singh (P.W. 11) took the accused appel­lants and the complainant to police out post pali where he registered a case under Section 302,1.P.C. against the accused ap­pellants and the investigation followed. P.W. 6 S.I. Hand Kishore who was then working as S.O. Jakhlaun, district Lalitpur took up the investigation for the case. He recorded the statement of Bhajju (P.W 4), Gopal (P.W. 2), Pyare Lal (P.W. 1) and Haridas. He also examined the ac­cused appellants and after needful inves­tigation 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, I.P.C. against the accused appellant Mulloo and under Section 302, I.P.C. against the ac­cused appellant Summa. The accused ap­pellants pleaded 'not guilty' and claimed trial. Accused appellant Mulloo further pleaded that he was not present at 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 theF.I.R. had obtained a promissory 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 case at the behest of Hira Lal. The accused appellants did not adduce any evidence in their defence.
(3.) THE prosecution examined as many as 11 witnesses. Out of whom Pyare Lal (P.W. 1), Gopal (P.W. 2), Rabooda (P.W. 3) and Bhajju (P.W 4) were the witnesses of fact and have given eye-witness account of the occurrence in question P.W. 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:;