Judgment

GUPTA, J.: - The appellant has been convicted under Sec. 302 of the Indian Penal Code for the murder of his sister s husband and sentenced to death by the Sessions Judge, Shahjahanpur. He has been further convicted under Section 449 of the Indian Penal Code and sentenced to rigorous imprisonment for five years; the sentence under Section 449 of the Indian Penal Code, as the. Sessions Judge directed, was not to be carried out in case the death sentence was confirmed The accused appealed to the High Court at Allahabad and the High Court heard the appeal along with the reference made by the Sessions Judge for confirmation of the death sentence. On a consideration of the material on record the High Court dismissed the appeal and accepted the reference. In the instant appeal by special leave the accused appellant questions the correctness of the Judgment of the High Court.

2. The appellant s sister Tej Kumari was married to one Joti of village Gopalpur. The prosecution case is that the appellant was a frequent visitor to the house of his brother-in-law Joti from whom he quite often used to demand financial assistance. A case under Sec. 326 of the Indian Penal Code had been started against the appellant for causing injury to his own wife. A few weeks before the murder he asked his brother-in-law Joti for money which he needed to defend that case, but Joti refused to oblige him on this occasion. This infuriated the appellant who threatened to kill Joti. On the night of January 21/22, 1972 Joti was sleeping inside his house and his wife Tej Kumari was also asleep a few feet away from her husband. There were a few "Kuthiyas" (grain bils) in the intervening space between them. At about midnight Tej Kumari woke up hearing a burgling sound coming from the direction of where her husband was sleeping and saw through the space between the "Kuthiyas" that somebody was sitting on her husband s chest. She ran out to the courtyard and recognised the assailant as her brother Jhamman, the appellant who was striking Joti with a knife. The appellant threatened her asking her to keep quiet, but she raised an alarm on hearing which her father-in-law Jhabbu who was sleeping outside under a Khaprail came hurrying inside the house just in time to see the appellant running away with a knife in hand. Her shrieks also brought several neighbours including Ram Bilas and Moola to the place of occurrence. Both Ram Bilas and Moola saw the appellant running away with knife in hand in the light of the torch that each was carrying. Coming to the place of occurrence they found Joti lying dead. Ram Bilas who was a cousin of Jhabbu went to Police Station Tilhar about eight miles away and lodged the first information of the occurrence next day at 7.50 A.M.; out of fear none of them was willing to go and lodge the report on the night of the occurrence.

3. The autopsy of the body of Joti was conducted by Dr. S. P. Srivastava, Surgeon-in-charge, District Hospital, Shahjahanpur at 12.30 p.m. on January 23, 1972. According to the Post-Mortem Report, Ex. Ka-1, the following ante-mortem injuries were found on the person of the deceased.

"1. Oblique incised wound 5 cm. x l cm. directed outwards from left angle of mouth x muscle deep.

2. Four linear incised wounds each about 4 cm. in front middle of neck.

3. Swelling with contusion and abrasion on both sides of front of neck on cutting, laceration of the muscles and compression of blood vessels on both sides were marked. The larynx was broken into pieces.

4. Incised wound transverse 1-1/2 cm. x 1/2 cm. x muscle deep 2 cm. below mid of left collar bone.

5. Abrasion in an area of 6 cm. x 4 cm. mid of chest.

6. Vertical incised wound 2 cm. x 1/3 cm. x skin on the dorsum of left mid-finger.

7. Vertical incised wound 3 cm. x 1/2 cm. x muscle deep (tendon) on the outer aspect of left fore-finger.

8. Vertical incised wound 1 cm. x 1/4 cm. x skin on whole of left ear."

4. In the opinion of the doctor, death was due to asphyxia as a result