CHHOTEY Vs. STATE OF U P

JUDGEMENT

(1.) V. P. Goel, J. Chhotey and Mohabbat Sher have preferred this appeal st the judgment and order dated 31-3-1979 passed by Sri Sachidanand, Sessions Judge, Sahajahanpur in Sessions Trial No. 316 of 1978, canvicting and sentencing each of the appellants to undergo imprisonment for life under Sec tion 302/34 I. P. C. The charge against the appellantss has been that they in furtherance of their common intention, committed the murder of Wilayat on 23-9-1977 at bout 12. 30 p. m. in the house of Wilayat situated in village Hauli Bauri, Police station Jalalabad, district Shahjahanpur, since the parties are closely related it will be material to give their pedigree.

(2.) WILAYAT is elder brother of Mohabbat Sher and Chhote. Accused Chhote, who is elder to Mohabbat Sher, lived in a separate house. Accused Mohabbat Sher and deceased WILAYAT lived in the same house. Two years before the date of occurrence, WILAYAT deceased got recovered a pistol from the possession of accused Mohabbat Sher. At time of occurrencene WILAYAT was keeping buffaloes and had troughs for feeding them. Accused Chhote got some buffaloes from his father-in-law. He insisted for feeding his buffaloes before those of WILAYAT's in those troughs. This insistance led to an altercation between WILAYAT on one hand and Chhote and Mohabbat Sher on the other. In the midst of that altercation, Mohabbat Sher struck WILAYAT with a knife and Chhote gave several blows to WILAYAT with a lathi, some of them hit the head of WILAYAT. On receiving the injuries WILAYAT fell down unconscious and then the accused ran away.

(3.) AFTER Wilayat's statement was recorded he was sent to the District Hospital at Shahjahanpur, where he died at 7-40 p. m. in the evening at 23-9-1977. Doctor Rajesh Chandra Asthana who examined the injuries of Wilayat in a Primary Health Centre at Jalalabad, found following injuries on the body of Wilayat: 1. Lacerated wound 3 cm. x 0. 2 cm. x bone deep on the posterior aspect of the skull, 12. cm away from the right ear. 2. Lacerated wound 5 cm. X 0. 4 cm X scalp deep on the top of skull over the mid line, 12. cm above the right ear. 3. Contusion 3 cm. x 1. 5 cm on the right side upper part forehead, 4 cm above the right eye brow. 4. Contusion 4 cm x 2 cm on the posterior-lateral aspect of the right shoulder. 5. Abrasion 3 cm x 0. 4 cm on the posterior aspect lower part of right forearm, 7 cm. above wrist joint.