KIRTI BALLABH Vs. STATE

JUDGEMENT

(1.) HON'ble Rajeev Gupta, C. J. The appellants have preferred this ap peal under Section 374 (2) Cr. P. C. against the impugned judgment dated 01-08-1986 passed by Sessions Judge, Nainital in Ses sions Trial No. 229 of 1984, whereby ap pellant Khima Nand was convicted under Section 302 and appellant Kirti Ballabh under Section 302 read with 24 of the In dian Penal Code with sentences of Impris onment for Life.

(2.) THE short facts of the case, essen tial for deciding this appeal are that: A. appellants Khima Nand and Kirti Ballabh are real brothers. Inform ant Hari Dutt is father of Kanti Ballabh (since deceased) and Tara Devi is his sister. Kanti Ballabh was employed in Jal Sansthan at Nainital. On 19-10-1984, at about 7:00 p. m. , when Kanti Ballabh was taking his meals in his house and his father Han Dutt, sister Tara Devi and mother Smt. Devki Devi were also present there, appellant Khima Nand asked Kanti Ballabh to come out of his house/when Kanti Ballabh came out of the house, appellants Khima Nand and Kirti Ballabh in quired from Kanti Ballabh as to why water was not being supplied to their house. Kanti Ballabh re plied that there was some defect in the pipeline and, as such, he could do nothing in the matter. Kirti Ballabh, not being satisfied with his reply, caught hold of Kanti Ballabh by both of his hands and exhorted his brother Khima Nand to assault him. Appellant Khima Nand took out a knife from his pocket and dealt one below on the chest of deceased Kanti Ballabh. THE alarm raised by Hari Dutt attracted witness Jaint Singh. Deceased Kanti Ballabh, after sustaining the injury on his chest, fell on the ground and both the appellants fled away from the place of occurrence. PW1 Hari Dutt and PW3 Tara Devi saw the entire incident in the light of the lantern. B. Hari Dutt, father of Kanti Ballabh, took his injured son first to the dis pensary at Village Daulatpur and then to Civil Hospital, Haldwani. THE doctor, on examination, de clared Kanti Ballabh dead. Hari Dutt, then, lodged the First Infor mation Report by submitting a written report at Police Station Haldwani at 11:20 p. m. THE In vestigating Officer, after observing, the necessary formalities of prepar ing inquest etc. , sent the body of deceased Kanti Ballabh for Post Mortem Examination. THE au topsy surgeon found one incised wound on the chest of the de ceased as detailed in the Post Mortem Report (Ex. Ka. 3 ). Dur ing the course of investigation, ac cused Khima Nand and Kirti Ballabh were arrested by the po lice. After completion of the inves tigation of the case, the police filed charge sheet against the accused persons alleging commission of the offence punishable under Sec tion 302 read with 34 I. P. C.

(3.) OF the seven witnesses examined by the prosecution at the trial, PW1 Hari Dutt and PW3 Tara Devi are eye-witnesses of the incident of assault on deceased Kanti Ballabh, whereas PW2 Jaint Singh saw the accused persons running away from the place of occurrence.