M.C.JAIN, J. - (1.) THE appellant Mahendra Yadav has preferred this appeal against the judgment and order dated 22 -4 -1994 passed by Sri R.P. Shukla, Addi ­tional Sessions Judge, Gyanpur -Varanasi in Sessions Trial No. 63 of 1991. He has been convicted under Section 302 I.P.C. and sentenced to life imprisonment and to pay a often, of Rs. 5000/ -. In default of pay ­ment of fine he has been sentenced to undergo further simple imprisonment for two months.
(2.) THE prosecution case, as per the First Information Report and the evidence adduced in the Court, may be stated in its broad essentials. The deceased was one Awadhesh engaged in preparing earthen pots. The incident look place on 21 -6 -1991 at about 6 A.M. near railway line in village Kanghai, Police Station Chauri, district Varanasi. The informant was Hansraj PW 2 brother of the deceased who lodged the report of the incident at 7.30 AM. that day. The distance of the Police Station from the place of occurrence was five kilometers. The marriage of Bhola Nath younger brother of the accused -appellant was to be performed on 17 -6 -1991. Two -three days before that, he approached the deceased at his house and asked him to supply earthen pots needed in the marriage of his brother on credit. The deceased declined to supply the earthen pots to him on credit. The accused -appellant got annoyed thereby and went away after offering threats to him that he would be taught a lesson after the marriage of his brother was over. On the fateful day and time, the deceased went to ease himself in the southern side of the village near the rail ­way line and he was easing himself when the accused -appellant committed his mur ­der after coming out from the foliage of Babool trees and striking Phwara blows on him. The erics of the victim attracted the informant Hansraj PW 2, Somaru, Kailash Molai PW 1, Bauram and Mangaru who came running and challenging the ac ­cused - appellant. After striking repeated Phwara blows on the victim, the accused appellant tried to run away with the weapon of offence. The complainant and the other witnesses chased him and ap ­prehended along with blood stained Phwara wherewith he had struck blows lo the victim. The victim Awadhesh died then and there. The accused -appellant was left in the cus ­tody of Somaru, Molai, PW 1, Bauram and Mangaru and the informant Hansraj PW 2 went to lodge the First Information Report which was lodged same day at the Police Station at about 7.30 AM. A case was registered. The investigation followed as usual which was conducted by S.I. Dwarka Prasad Mishra, PW 6. He reached the spot, inspected it, recorded statements of the wit ­nesses, look in possession the Phwara and took in his custody the accused - appellant Mahendra Yadav. After necessary formalities the dead body was sent for postmortem which was conducted by Dr. Rav Dutt Dwivedi PW 4 on 21 -6 -1991 at 5 P.M The deceased was aged about 30years. The following ante -mortem injuries were found on his person: (1) Incised wound 6 em. x 1.5 cm. bone deep in size on the dorsal surface o ihe scalp on the right side 3 cm. posterio superior to the right mortoid bone. (2) Incised wound 7 cm. x 1 cm. x bond deep in size on the right side of the face jus below the lobule of the right ear pinna extendinganterio -posteriorally. (3) Incised wound 7 cm. 1.5 cm. x bone deep in size on the right and dorsal surface of the neck 2 cm. posterio interior to injury No. (2). (4) Incised wound 15 cm. cm. x 5 cm. x 8 cm. deep in size on the right side of the neck and face. Blood vessels, nevus, muscles and bones are cut across in the wound. (5) Incised wound 3 cm. x 0.5 cm. bone deep in size on the right side of the buttock 7 cm. left to the midline at the level of the 5th lumber spine. (6) Incised wound 7 cm. x 1.5 cm. x bone deep in size on the left side of the back at left to the midline at the level of the 3rd thoracic spine. On internal examination, skull bone was found fractured on right side and posterior part. Base was also fractured. The death had occurred due to shock and haemorrhage on account of ante - mortem injuries and about half day had passed since he died.
(3.) THE accused -appellant pleaded false implication due to enmity and con ­tended that he had been apprehended by the police from his house.;