- (1.) M. M. Lal, J. This is an appeal against a judgment and order, dated 30th August, 1978 passed by Sri Brij Mohan, the then 1st Addl. Sessions Judge, Ballia, by which he has convicted Gupteshwar Nai, appellant under Sec tion 302, I. P. C. and has sentenced him to undergo imprisonment for life.
(2.) GUPTESHWAR Nai, appellant and Vishesar informant are two real brothers. They were residing in a common house, situate in village Balihar, P. S Haldi, district Ballia. They were in occupation of different rooms, which opened in a common courtyard. They were barbar by profession and during the course of profession they used to go to marriages to perform certain cere monies. Virendra Nath deceased was the son of Vishesar informant. Smt. Manakia is the wife and Km. Radhika is the daugther of GUPTESHWAR appellant. About four days prior to this occurrence there was marriage of the son of one Sri Ramnath Misra in village Balihar. In order to perform certain ceremonies, from the side of Vishesar informant his mother, who used to live with him and from the side of the appellant his daughter Km. Radhika had gone. According to the case of the prosecution on 26-6-1976. i. e. on the date of the incident, Km. Radhika, i. e. daughter of the appellant, had returned and she made a complain to her parents regarding lesser payment made to her as compared to the payment made to the mother of the informant. The same led to an altercation between the daughter of Vishesar informant on one side and wife and daughter of the appellant on the other. When the informant came from the market to his house he found that the appellant was beating his (infor mant's) wife and daughter Vishesar informant asked the appellant as to why he was beating his wife and daughter on which the appellant started beating Vishesar informant as well. Soon after Virendra Nath deceased reached the spot and he tried to intervene. He gave a push to the appellant on which the appellant went to his room and brought out a spear and gave one spear blow to Virendra Nath deceased, which hit him in his chest and he fell down. This happened at about 6. 30 p. m. The hue and cry attracted witnesses to the place of occurrence. After the incident the appellant ran away. Vishear informant then brought his injured son Virendra Nath to the bus station, situated at 'ramgarh dhala' and from there he was brought upon a bus to District Hospital, Ballia, where his injuries were examined by P. W. 6 Dr. T. N. Singh, Incharge of the Emergency Ward, at 10. 15 p. m. on the same date. The said doctor found Virendra Nath having sustained the following injuries:- Punctured wound 4-1/2 cm x 1-1/2 cm X lung deep at 12 O'clock position, left side chest, 8 cm above left nipple. Air was leaking out from the wound; and margins were clean cut. The doctor found the said injuries as grievous, having been caused by a sharp edged weapon.
(3.) ON the next morning Visbesar got the report of the incident scribed. He then went to Kotwali, Ballia to hand over the said report on 17-6-1973 at 10. 40 a. m. As this case related to P. S. Haldi, the papers were forwarded to P. S. where Haldi, the same were received on 18-6-1973 and a case under Sec tion 307, I. P. C. was registered. Virendra Nath succumbed to his injuries in the District Hospital, Ballia on 20-6- 1973 at 12. 10 p. m. whereafter this case was converted and registered into a case under Section 302, I. P. C. In order to prove its case the prosecution besides formal evidence, produced P. W. 2 Vishesar informant and two eye-witnesses, namely, P. W. 3 Sri Ram Misra and P. W. 4 Anirudh Misra. The post mortem examination of the dead body of Virendra Nath was conducted by the foresaid doctor T. N. Singh on 21-6-1973 at 8 p. m. He found the following ante-mortem injuries on the dead body of Virendra Nath: - 1. Stitched wound 4-1/2 cm long over left side of chest 8 cm above the left nipple, at 12 O'lock position. The upper edges of the wound have united. 2. Abrasion 1/2 cm long, linear over left cheek, 3-1/2 cm below middle of lower eye lid.;