LAKHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the] judgment and order dated 13th January, 1982 passed by Ist Additions Sessions Judge, Moradabad convicting and sentencing the appellants Chokhey and Lakhan for life imprisonment under Section 302/34 I.P.C. and six months R.I. 323/34 I.P.C. Both the sentences have been directed to run concurrently.

(2.) PROSECUTION case as unfolded in its evidence is as follows. Complainant Amar Singh (P.W. I) and his brothers Net Ram - P.W. 3, Puran and their father Bhonda (deceased) were all living separately in separate houses. To the west of the house of Bhonda (deceased) is the house of Puran. The house of Bhonda (deceased) faces towards north. To the south of his house lies the Gher of accused appellant Chokhey. The water of the eaves (Olti) of the Chhapper of Bhonda has been falling towards south in the land of Gher of accused appellant Chokhey since last more than 25 years. The accused appellant Chokhey, has constructed his Gher about two years back. He is said to have started constructing a wall adjacent to the house of Puran about two months before the incident, but the same was objected by Puran. It was, therefore, mutually agreed between them that accused appellant Chokhey will not raise the wall any further and the water of the eaves of the Bhonda's (deceased) house would continue to fall towards the Ghar of accused appellant Chokhey as before.

(3.) IT is also alleged that the accused appellants had intimidated the complainant Amar Singh (P.W. 1) on account of which, they could not go to the police station immediately. However, when the accused appellants left for the police station, complainant Amar Singh, alongwith his brother Netram -P.W. 3, mother Smt. Kishanya and father Bhonda (deceased)were going to the police station but his father Bhonda died while on way. They reached there at 2.30 a.m. on 6 -5 -1980 when report Ex. Ka -10 was recorded at the police station on the dictation of the complainant Amar Singh (P.W. 1). Relevant entries were made in the G.D. registering a case under Section 147, 323 and 302 I.P.C. S.O. Shri Ram Vilas Vimal -P.W. 8 was present at the police station. He took the investigation himself interrogated the witnesses present there and deputed Sub - Inspector Shri Ravindra Kumar (P.W. 2) for the arrest of the accused. Accused appellants Chokhey, Lakhan and one Tunda were arrested by him in the same night. S.O. Shri Ram Vilas Vimal - P.W. 8 held the inquest on the dead -body in the morning at about 8 a.m. and prepared the inquest report Ext. Ka.2. Dead body of Shri Bhonda was sent for post -mortem in sealed cover,