THANNOO Vs. STATE

JUDGEMENT

(1.) This is an appeal by one Thannoo aged 20 against his conviction by the learned Sessions judge of Budaun under Section 304, I.P.C., and the sentence of nine years' R. I. passed on him. The learned Sessions Judge does not say, as indeed he should have, as to which of the two parts of Section 304. I.P.C., was the one under which he purported to convict the appellant.

(2.) The deceased in this case was one Likkhi aged 30, who is said to have died on the spot as result of a single lathi blow on his head. The prosecution case, found established by the Court below, was that there was a strip of land separating the houses of the appellant and the deceased, that the appellant was anxious to build a ghar on that land, and that this attempt of the appellant was resisted by the deceased. This resulted in strained relations existing between the appellant and the deceased. The present occurrence is said to have taken place at about 7-30 p.m. on 28-7-1955. The prosecution case was that there was an altercation over the building of the ghar and an exchange of abuses between the appellant and Likkhi at the Chaupal of Chandan P.W. 2, 6 or 7 steps away from Likkhi's house, where Likkhi had gone for a smoke, and that the appellant struck Likkhi with his lathi on the head as a result of which Likkhi fell down and died on the spot. The exchange of abuses was heard and the assault seen by Likkhi's brother Bho-ley P.W. 1, by Chandan P.W. 2, at whose chaupal the occurrence happened, and by others, including the three neighbours Sita Ram P.W. 3, Kuar Singn Mukhia P.W. 4 and Kehri P.W. 5.

(3.) First information report of the incident was lodged by the deceased's brother Bholey P.W. 1 at 9-30 o'clock the same night at police station, Wazir ganj, four miles away from the village of occurrence Kallia Kazampur. Post Mortem disclosed a contused wound on the scalp, 2" x 3/10" x skull, on the front of head slightly to the left of midline 1 1/2" above the left eye-brow with underlying skull bone fractured. In the opinion of Dr. H. P. Banerji, Civil Surgeon, Budaun, who conducted the post mortem death was due to shock and haemorrhage resulting from depressed fracture of the skull and laceration of the brain caused by head injury. The defence was a total denial of the prosecution case. One witness, Raghubir Singh was produced in defence, According to him, at sunset time the dead body of Likkhi was seen being brought towards the village and, when the witness asked those who were carrying the dead body, the latter replied that there had been no marpit and that Likkhi had been killed by some one. The learned Sessions Judge disbelieved the defence witness and convicted and sentenced the appellant as aforesaid, relying upon the testimony of the eye-witnesses produced by the prosecution, There was no attempt at a resuscitation of the defence evidence in this Court.