STATE OF U P Vs. BHIMSEN

JUDGEMENT

(1.) 1. The State of U.P. has come up in appeal under Section 378 Cr.P.C. against the judgment and order dated 24.2.1983 passed by Sri M.S. Premi, the then Additional Sessions Judge, Shahjahanpur whereby he acquitted three brothers, namely Bhimsen, Bahadur and Babu Ram, all sons of Jhamman Lal, of the charge framed under Section 302 read with Section 34 of the Penal Code.

(2.) Two brothers, namely Bhimsen and Babu Ram expired during pendency of this appeal. The appeal filed against them abated vide order of the Court dated 10.9.2005. Briefly stated, the facts of the prosecution case were as under: P.W.1 Drigpal, son of Ganga Ram Kurmi, a resident of village Kasrak, P.S. Katra, who is brother-in-law (brother of the wife) of the deceased Munna Lal, is the informant. He handed over a written report at P.S. Katra on 9.8.1982 at 4-10 P.M. and on the basis of the report, the local Police registered a case under Section 302 I.P.C. at crime no. 146. It was alleged that the deceased (Munnal Lal) was an accused and facing trial under Section 307 I.P.C. in the court for making a murderous assault on accused Bhimsen in the year 1981. Consequently, the parties were having strained relations. On 9.8.1982 at about 1-00 P.M., Munna Lal along with his labourer Brijpal were returning home along with fodder. The fodder was being carried in a cart driven by two he buffalos. When the cart reached near sugarcane field of Jagdish, all the three brothers, named above, and one unknown person appeared there from sugarcane field and they all attacked upon Munna Lal with their respective weapons. Accused Bhimsen was armed with a kanta and his two brothers Bahadur and Babu Ram were carrying lathis. The unknown assailant was armed with a gun. Both Munna and Brijpal raised alarm for help. On hearing hue and cry, Drigpal and his sister's son Ram Naresh, who were present at the tube well, rushed to the scene of incident and saw the assailants assaulting Munna Lal. The accused having guns, challenged the witnesses and threatened to kill them. Munna Lal was killed on the spot.

(3.) After registration of the case at the Police station, the local Police started investigation and after completing all formalities sent the dead body to mortuary for post-mortem examination. Dr. S.K. Kulshrestha conducted autopsy on 10.8.82 at 4-00 P.M. and found four lacerated wounds, bone deep on left pinna just below the left ear, below mandible and muscle deep with underlying base of thumb, second and third fingers of left hand. Two abrasions on the left thigh and right knee were also detected. One lacerated wound, muscle deep with underlying base of second, third and fourth fingers of the right hand were also found. On internal examination, the doctor found food particles and rice about 200 grams in the stomach and semi digested food were present in the small intestine. The base of skull was found fractured. In the opinion of doctor, the death took place about one day prior to examination due to coma caused as a result of ante-mortem injuries.