STATE OF U P Vs. MURLI

JUDGEMENT

(1.) Heard the parties.

(2.) Four accused, A-1 Murli respondent herein, A-2 Harish Chandra, A-3 Chandra Pal and A-4 Som Nath were put to trial before the trial court for an offence under Section 302 read with Section 34 IPC. A-3 Chandra Pal and A-4 Som Nath were acquitted by the trial court. A-1 Murli and A-2 Harish Chandra were, however, convicted under Section 302 read with 34 IPC and sentenced to R.I. for life. They preferred an appeal before the High Court against their conviction. During the pendency of the appeal, A-2 Harish Chandra expired and the appeal against him stands abated. So far the appeal preferred by A-1 Murli is concerned, the High Court accepted the evidence of the prosecution recorded by the trial court. The High Court, however, altered the conviction under Section 302 IPC into one under Section 304 Part I IPC and reduced the sentence to 7 years R.I. Aggrieved thereby this appeal by special leave is preferred by the State of U.P.

(3.) The prosecution story in brief is as follows : Harish Chandra and Lala Ram Sarup (deceased) and first informant, Roshan Lal, were three brothers. Harish Chandra had three sons, Murli respondent herein, Som Nath and Chandra Pal. There appeared to be a partition of landed property among the three brothers, namely, Harish Chandra, Lala Ram Sarup and Roshan Lal. Harish Chandra along with his sons was residing at Moradabad whereas Lala Ram Sarup and Roshan Lal were living in village Badawala within local limits of Amroha township. There was a dispute between Lala Ram Sarup on one side and Harish Chandra and his sons on the other side with regard to construction of mend in between their fields. The attempt of settlement of the dispute amicably through the intervention of the villagers had failed and the relations between the two brothers continued to be strained. It is stated that on 15.1.1988 at about 3 p.m. when deceased Lala Ram Sarup was going towards his field and reached near the field of Pradhan Harnam Singh, Harish Chandra and his three sons suddenly appeared at the scene from their hideout. It is alleged that the accused Murli was armed with a knife, Harish Chandra with a handle of hand-pump and Som Nath with dandas in their hands attacked and over-powered Lala Ram Sarup and on exhortation of Harish Chandra, the respondent Murli gave knife blows to Lal Ram Sarup. On being raised alarm witnesses Harnam Singh, Kishan Lal, Ram Sarup and his wife Smt. Heera Devi rushed to the scene of occurrence from nearby fields whereupon the miscreants ran away. A case was registered under Section 307 IPC at 5 p.m. on 15.1.1988 itself. However, in the course of investigation Section 307 IPC was converted into Section 302 IPC. The trial court after examining the prosecution evidence threadbare including the dying declaration and testimony of the witnesses convicted the two accused as aforesaid. The deceased Lala Ram Sarup was medically examined by Dr. A.K. Jain, P.H.C., Amroha on 15.1.1988 at 4 p.m. and found the following injuries: