- (1.) M. C. Jain, J. This appeal is directed by appellants Shyam Lal, Om Prakash, Ram Pal and Burmah against the judgment and order dated 18-9-1980 passed by Sri L. S. P. Singh, the then 4th Additional Sessions Judge, Kanpur in Ses sions Trial No. 166 of 1979. Each of them has been convicted under Section 302 I. P. C. read with Section 34 I. P. C, under Section 324 I. P. C. read with Section 34ipc and under Section 323 read with Section 34 I. P. C. Each of them has been sentenced to undergo life imprisonment under Sec tion 302 I. P. C. read with Section 34 IPC, six months' rigorous imprisonment under Section 324 read with Section 34 IPC and three months rigorous imprisonment under Section 323 read with Section 34 I. P. C. All the sentences have been ordered to run concurrently.
(2.) THE prosecution case was that P W 4, informant Buddha used to look after the cultivation of PW 1, Raja Ram in village Bajaraha Punva, Police Station Sheoli, District Kanpur as he was in service at Kanpur and thus unable to look after his cultivation. On 13-4-1979 at about 4 p. m. the accused-appellant Om Prakash and Shyam Lal were digging earth from the drain situated by the side of the field of PW 1 Raja Ram. Bhagwan Din deceased who was the real brother of informant PW 4 Buddha forbade them from doing so, but to no effect. Bhagwan Din then came to Kanpur and informed PW 1 Raja Ram about it. Raja Ram went to his village from Kanpur, enquired from Om Prakash on 14-4-1979 at about 9 a. m. the reason for digging earth from his drain. Om Prakash replied that he had dug the earth and he would dig the same again. He also held out that before digging any further earth, he would teach a lesson to Bhagwan Din who had made a complaint to him (PW 1 Raja Ram ). Short while later, Om Prakash and Shyam Lal armed with spears and Burmah and Ram Pal armed with lathis came to the house of Bhagwan Din. Shyam Lalstrucka blow with his spear on Bhagwan Din and the remaining three accused-appellants assaulted Pooran-father of Bhagwan Din with lathis and spears. On hue and cry being raised by the victim, the informant PW 4 Buddha and the witnesses PW 1 Raja Ram, Ghaseete, Ram Chandra and a num ber of other persons reached there and challenged the victims. THE accused-ap pellants then fled away towards the western side. Bhagwan Din and Puran sus tained injuries. THEy were sent to P. H. C. Chaubepur for medical aid and examina tion. PW 4 Buddha went to Police Station Sheoli and lodged a First Information Report at 11 a. m. THE distance of the Police Station was ten miles. Bhagwan Din died at 10 a. m. the same day. Puran was medically examined by PW 6 Dr. Laxmi Sahai Johari. As per the injury report Ex. Ka-8 the following injuries were found on his person: 1. One contusion 8" x 1/2" at back upper part, on both sides of midline of back. 2. One punctured wound 1/8" x 1/8" at medial aspect of lower half of left forearm, fresh and bleeding profusely. One traumatic swelling in area of 2" x 2" around injury No. 2. One traumatic swelling in area of 2" x 3" transverse in direction at upper half of post aspect of left forearm 3" below left elbow joint.
(3.) ONE traumatic swelling 1-1/2" x 1" at middle part of left forearm at post aspect 1" below injury No. 4. Complaint of pain in left forearm. 3. Injuries No. 1, 3, 4 and 5 were simple which had been caused by blunt object while injury No. 2 was caused by sharp edged weapon. X-ray was advised. Initially, a case had been registered under Section 308 I. P. C. but was ultimately con verted inter alia under Section 302 I. P. C. The investigation of the case was taken up as usual. The dead body of the deceased Bhagwan Din was subjected to post-mor tem by PW 7 Dr. P. C. Tiwari at Kanpur on 15-4-1979 a 2 p. m. He was aged about 18 years and the following ante-mortem in juries were found on his person: 1. Incised wound 5. 5 x 1 cm x cavity deep (chest) on the left side of chest 1. 5 cm below and medial to left nipple and 7. 5 cm left to midline of sternum. 2. Abraded coma? m 3. 5 x 1 cm on the upper middle of back 2. 5 cm below the 7th cervical vertebra. 3. Multiple abraded contusion in area of 20 x 14 cm. on the middle of back, 19 cm below injury No. 2. 4. In the opinion of the Doctor, injury No. 1 had been caused by sharp edged weapon while injury Nos. 2 and 3 by blunt object. The cause of death was shock and haemorrhage as a result of injury to heart (injury No. 1 ). Shyam Lal also allegedly got recovered to the Investigating Officer PW 12, S. I. , Siya Ram Sharma the blood stained blade of the spear from the house of Om Prakash which was subjected to scientific examination and was found to contain human blood. The investigation was subsequently taken over by PW 3, S. I. Chhote Lal, S. O. of Police Station Sheoli who submitted charge-sheet against the appellants. 5. The accused-appellants pleaded not guilty. The defence of Shyam Lal was that he was escorting his niece Smt. Tapeshwari to her second husband's place; that the deceased Bhagwan Din who was present at the door of PW 1, Raja Ram passed indecent remarks against her by asking her to go to the house of Machhalu; that he (Shyam Lal) took exception to these remarks whereupon Bhagwan Din attacked him with spear, that in order to ward off the spear he wielded his lathi as a result of which blade of the spear fell down; that both he and Bhagwan Din tried to take up that blade; that Puran also joined them in a bid to take up the blade and thus sustained injuries there from; that he suc ceeded in catching hold of the blade but finding no way out to save himself, he thrust the blade in the chest of Bhagwan Din; that his niece Smt. Tapeshwari had been abducted earlier by Bhagwan Din, Machhalu, PW 4 Buddha, Puran and Ram Chandra. It was on this account that her first husband had deserted her and she had been married again. The remaining three accused-appellants even denied their presence at the spot. 6. The prosecution examined in all 13 witnesses besides relying on documentary evidence. Yashoda mother of Om Prakash was examined in defence in support of the defence theory put forth by Shyam Lal. Out of the witnesses examined by the prosecution. PW 1 Raja Ram, PW 2 Puran and PW 4 Buddha were examined as eye witnesses. P W10 Devi Din was the witness of recovery of spear got made by accused Shyam Lal to the Investigating Officer. The rest were the Doctors and formal wit nesses including two Investigating Of ficers. The learned Additional Sessions Judge believed the prosecution evidence and convicted and sentenced the accused-appellants as stated in the earlier part of the judgment.;