OM PRAKASH Vs. STATE OF U P

JUDGEMENT

(1.) NASEEMUDDIN, J. This Appeal has been filed by Om Prakash S/o Ganesh Prakash and Santosh S/o Om Prakash against the judgment and order dated 13-8-1991, passed by Sri R. C. Gautam, the then III Addl. Sessions Judge, Lakhimpur Kheri in S. T. No. 101 of 1990, whereby the appellants were convicted for an offence punishable under Sections 302/34, I. P. C. and each of them was sentenced to under go imprisonment for life.

(2.) ON 10-6-1989 at 0030 hours an F. I. R. was lodged with the Police of Kotwali Dhaurhara district Lakhimpur Kheri by P. W.-l Babboo Lal S/o Mihi Lal R/o Raipur against the two appellants, alleging that the same night on 9-6-1989 while he alongwith his brother Bhaiya Lal and the younger brother Ram Khelawan, Chhotey Lal S/o Mool Chand, P. W.-2 Kishori Lal were returning from Dhaurhara Bazar to their village Raipur and reached near the sugarcane field of Peer Ghulam about 8 p. m. then the two appellants armed with Banka, challenging Bhaiya Lal started causing hurt to Bhaiya Lal by means of Banka. That out of fear these persons rushed towards the village. That many persons of the village were brought to the spot of occurrence by these witnesses. That these persons found that Bhaiya Lal was lying dead and the miscreants had run away. ON the basis of this EI. R. Ext. Ka-1 Chick Ext. Ka-3was prepared and case was registered vide Ext. Ka-4. Case was inves tigated by P. W.-4 Sukh Ram Sonkar S. I. who went on the spot and prepared the inquest report on the dead body and sealed it. The inquest report Ext. Ka-5 and its connected papers Exts. Ka-6 to Ka-9were sent alongwith the dead body for post mortem. Then site map of the place of occurrence Ext. Ka-10 was prepared. Sample of blood stained and plain earth was taken into custody and sealed and prepared its memo Ext. Ka- 11. Some papers (Ext. 2 and 3) were given by Smt. Bitto of which memo Ext. Ka-12 was prepared. Statements of the witnesses were also recorded and autopsy on the dead body of Bhaiya Lal was prepared by P. W.-3 Dr. S. K. Tiwari. After completing the investigation charge-sheet was sub mitted. Accused denied the allegations and pleaded not guilty to the charge. Ac cused Santosh was alleged to be a minor. The trial Court believed the evidence of the prosecution witnesses and convicted and sentenced the appellants as above. Feeling aggrieved the present appeal has been filed.

(3.) THE occurrence is alleged to have taken place at about 8 p. m. in the night. No source of light was mentioned in the EI. R. under which the alleged appellants were seen and identified. THE post-mortem report inter alia, reveals that 100 gram of food matter recognised as rice was present in the stomach. THEre was material and gases in the two intestines also. Besides, there were found to be the following ante-morrem injuries on the dead body of Bhaiya Lal: (i) Incised wound 4 cm. x 1 cm. x muscle deep on right side of head 10 cm. above right ear. (ii) Incised wound 25 cm. x 2 cm. x bone fractured right side of head 3 cm. above right ear. Membranes an bones are divided. (iii) Incised wound 20 cm. x 2 cm. on the right temple and right side of neck and bone just above right ear pinna extending from front of right ear pinna to back of neck on right side (Note under neath by No. 38. 4 fracture of tem poral parietal and middle cranial fossa found ). (iv) Incised wound 3 cm. x 1/2 cm. x muscle deep on left side head 7 cm. above right ear. (v) Incised wound 8 cm. x 3 cm. x bone deep on right scapular area, horizontal direc tion (scapula fractured ). (vi) Incised wound 7 cm. x 1 cm. x muscle deep on right side back of chest in middle part, vertical and oblique. (vii) Incised wound 6 cm. x 2 cm. x cavity deep on the left side chest 7 cm. below left nipple axilla fractured and pleura and lung congested. (viii) Incised wound 3 cm. x 1 cm. x muscle deep on palmer side of left wrist. (ix) Incised wound 14 cm. x 1/2 cm. x bone deep in left palmer, extending from root of thumb to base of little finger. (x) Incised wound 7 cm. x 1 cm. x bone deep in left palm at the base of index finger. (xi) Incised wound 15 cm. x 3 crn. x bone cut in right fore arm back aspect and inner back, muscles, vessels and both bones of fore arm divided. (xii) Incised wound 2 cm. x 1 cm. on right fore arm and proximal of wrist. Brain, membranes were congested pulpy and divided. Middle cranial fossa fractured. THE cause of death was shock and haemorrahage as result of ante-mortem in juries. THE post-mortem was conducted on 11-6-1984 at 5. 20 p. m.