VIRENDRA MISRA Vs. STATE OF U P

JUDGEMENT

(1.) M. M. Lal, J. These two appeals have been filed against a judgment and order dated 29. 9. 78 passed by Sri U. D. Shukla, the then III Addl. Sessions Judge, Varanasi, by which he has convicted the above named three appellants under Sec. 302/34 I. P. C. and has sentenced each of them to undergo imprisonment for life. Indra Deo Misra and Virendra Misra appellants are real brothers. They are sons of Jagesar Misra. Chhabinath Misra is the real brother of Jaqesar Misra. Chhabinath Misra has no male issue. Lalji Yadav appellant is said to be the companion of the remaining two appellants. Vishwanath deceased and P. W. 1 Barhi informant were real brothers. They had taken agricultural land of aforesaid Chhabi nath Misra on 'batai', and were thus cultiva ting the said land. According to the case of the prosecution on 21. 11. 77 at about noon P. W. 1 Barhi informant was irrigating the aforesaid field which had been taken on 'batai' from Chhabi nath Misra. Barhi informant was lifting water with the help of 'panbaha' to the said field. Nandlal and Nagina were also lifting water from the 'garhi' of Nand Lal with the 'don'. Vishwanath deceased wa:> preparing 'kiyaris'. After preparing 'kiyaris' Vishwanath deceased sat on a 'lat' (high mend) of the field. It is further the case of the prosecution that on the said date i. e 21. 11. 77 at about 12 in the noon, when Vishwanath deceased was sitting on the 'lat', all the three appel lants armed with 'lathis' came there and enquired frpm Vishwanath deceased as to whose 'bapauti' (inheritence) he was sitting. To thfe same Vishwanath deceased replied that the said inheritance (property) was that of Chhabinath Misra. On the same all the three appellants struck one 'lathi' blow each on the head of Vishwanath decea-'sed as a result of which he fell down uncon scious at the spot. Barhi informant, who was working at a distance of fifteen steps, rushed to the rescue of his brother Vishwa nath but the appellants wielded 'lathi' on him. However, Barhi informant protected himself with the help of 'panbaha' which he was carrying, and therefore, escaped hurt. Bikarama and Shyam Karan, who were scraping grass nearby and Nand Lal and Nagina, who were also working nearby, rushed to the place of occurrence. The appellants then ran away from the place of occurrence. Barhi informant and others rushed Vishwa nath to the Dhanapur Hospital, where his injuries were examined. He was then referred to S. S. P. G. Hospital Varanasi, where he died on the same day at 6. 00 p. m. Barhi P. W. 1 got the report of the incident written from aforesaid Chhabinath Misra. He took the same to P. S. Dhanpur, situated at a distance of 3 kms. where he lodged the same on the same date at 1. 30 p. m. In support of its case the prosecution examined seven witnesses. P. W. 1 Barhi, P. W. 2 Bikarma and P. W. 3 Shyam Karan have given an eye-witness account of the incident. PW. 4 Brij Kishore Singh S. I. had gone to S. S. P. G. Hospital, Varanasi where he prepared the inquest report of the dead body of Vishwanath deceased on 21. 11. 77, P. W. 6 Aditya Giri was S. O. P. S. Dhanapur. On 21. 11. 77 at 1. 30 p. m. this case was regis-tered in his presence under Section 307 I. P. C. It may be noted that subsequently when information regarding the death of Vishwanath was received at police station, this case was converted into a case under Section 302 I. P. C. The investigating officer had started investigation of this case from 21. 11. 77. The Investigating Officer went to S. S. P. G. Hospital Varanasi, where he found Vishwanath in an unconscious condition. The Investiga ting Officer recorded the statements of P. W. 1 Barhi, P. W. 2 Bikarama and others. He inspected the place of occurrence and prepared the site plan thereof. On 24. 11. 77 the Investigating Officer recorded the state ments of P. W. 3 Shyam Karan and others. He searched for the appellants but to no avail. He submitted a report for taking action against the appellants under Sec. 82-83 Cr. P. C. On receipt of the warrants the Investigating Officer attached the property of the appel lants on 26. 11. 77. P. W. 5 Dr. Tej Bahadur Rai was Medical Officer Incharge, Dhanapur Hospital. On 21. 11. 77 at 12. 10 p. m. he had examined Vishwanath and found the following injuries on his person: 1. Contusion with swelling 1 cm x 9 cm on left side of head. 8 cm above the left ear. Kept under observation and advised for X-ray and technical opinion. T. . Contusion with swelling 15 cm x 13 cm on tight side of head starts just above right ear. kept under observation. Advice for X-ray and technical opinion. 3. Lacerated wound 2 cm x. 5 cm x. 5 cm on left side of head. 13 cm above from left ear. At the time of the examination of his injuries Vishwanath was unconscious. The post mortem examination of the dead body of Vishwsnath deceased was conducted by P. W. 7 Dr. A. K. Dwivedi, the then Medical officer, S. S. P. G. Hospital, Varanasi on 22. 11. 77 at 3 p. m. He found the following ante mortem injuries on the dead body. 1. Contusion 9 cm x 7-1/2 cm over left parietal. 8 cm from left ear.

(2.) CONTUSION 12 cm x 10 cm over right temple 2 cm above right ear.