NATHOO Vs. STATE

JUDGEMENT

(1.) The accused-appellant-Nathoo has preferred this appeal against the judgment and order dated 31-3-1980 passed by Sri Girish Chandra VIth Additional Sessions Judge, Bareilly in Sessions Trial No. 419 of 1978, convicting him under S. 302, I.P.C. and awarding the sentence of life imprisonment.

(2.) The broad spectrum of the prosecution case may be narrated. He allegedly committed the murder of his own uncle Champat Rai on 25-4-1977 at about 7.30 p.m. in village Bijamau, Police Station Hafizganj, District Bareilly. The First Information Report was lodged by deceased's brother Jhamman Lal the same day at 10.30 p.m. The distance of the police station from the place of occurrence was three miles. Jhamman Lal, Champat Rai deceased and Ram Swarup (whose son the present accused-appellant is) were real brothers. There had been partition between these brothers in respect of agricultural land as well as Abadi property. Ram Swarup - father of the accused-appellant had even died about 8-10 years before this incident. The accused-appellant-Nathoo had a grievance that his share was less while Champat Rai had taken bigger share in the house property. The Khalihan of the deceased was situated towards the eastern side of the village and a culvert had to be crossed to reach his Khalihan. On the fateful day and time the deceased was going to his Khalihan and the informant Jhamman Lal P.W. 1 was also going there, following the deceased at a little distance. When Champat Rai reached near the culvert, the accused-appellant appeared all of sudden and opened fire on him. The fire, however, missed with the result that Champat Rai got alarmed and he immediately caught hold of the country made pistol of the accused-appellant. He succeeded in snatching away the same from the accused-appellant after some grappling. But in the meantime the accused-appellant took out a knife from the folds of his Tahmad and started inflicting knife blows on the deceased. On the shrieks and alarm raised by the deceased, Jhamman Lal P.W. 1 (who was a little behind him) and other witnesses including Umrai Lal P.W. 2 instantly reached there. After inflicting a few blows of knife on Champat Rai, the accused-appellant fled away from the scene of occurrence. The deceased fell down on receiving the knife injuries. A cot was arranged and he was taken to his house on the said cot. Jhamman Lal P.W. 1 dictated the First Information Report to Tota Ram P.W. 3 and proceeded to the Police Station along with the injured Champat Rai on a bullock cart, also carrying the countrymade pistol which had been snatched by him (Champat Rai from the accused-appellant). Champat Rai started crying on account of pain due to movement of the bullock cart and as such he was taken down from it. In the meantime, a mini truck came to the village with paddy bags. The victim Champat Rai was taken to the police station on the said mini truck where Jhamman Lal P.W. 1 lodged the First Information Report at 10.30 p.m. Initially, a case under S. 307, I.P.C. and 25 of the Indian Arms Act was registered against the named accused-appellant (which was subsequently converted under S. 302, I.P.C. upon the death of the deceased). The victim Champat Rai was taken to the District Hospital Bareilly. He was medically examined there at 12.20 a.m. on 26-4-1977 by Dr. P. K. Bass. A report was sent for recording the dying declaration of the deceased which came to be recorded on 26-4-1977 between 8.10 a.m. and 8.50 a.m. by Sri R. C. Bharadwaj Sub-Divisional Magistrate P.W. 4. It was Dr. S. K. Mukerji P.W. 8 who had recorded a certificate regarding mental condition of the victim being fit at the time of making dying declaration. The victim died on 27-4-1977 at 4.30 a.m. On the receipt of the information about the death of Champat Rai S.I. Dwarka Prasad P.W. 11 was deputed to the hospital for preparing the inquest report and other relevant papers. The dead body was sent by him for post-mortem after doing the needful. His post-mortem was conducted by Dr. I. J. Punhani P.W. 7 on 27-4-1977 at 4 p.m.

(3.) For proper appreciation, it is useful to detail below the injuries found on the person of the victim Champat Rai at the time of medical evidence on 26-4-1977 at 12.20 a.m. As per injury report Ex. Ka 14 the following injuries were found on his person : 1. Eliptical incised wound left side abdomen 3 cm. x 2 cm. x omentum protruding out about 18 cm. from umbilicus at 2 O'clock. 2. Incised wound 4 cm. x 2.5 cm. x bone deep on left side chest back, 11 cm. below scapula. 3. Eliptical incised wound 2 cm. x 1.5 cm. x muscle deep on back left side chest 3 cm. above and medial to injury No. 2.