Judgment :

C. Nagappan, J.

1. Leave granted

2. This appeal is preferred against the judgment of the High Court of Uttarakhand at Nainital in Criminal Appeal No.176 of 2010.

3. The present appellant was appellant No.2 in Criminal Appeal No. 176 of 2010 and he along with appellant No.1 therein Ganga Ram, was tried in Sessions Trial No.1 of 2008 on the file of Sessions Judge, Pauri Garhwal for the alleged offence under Section 302 read with Section 34 IPC and they were found guilty of the charge and convicted and sentenced each to undergo imprisonment for life and to pay a fine of Rs.50,000/- each and in default to undergo imprisonment for 5 years. Aggrieved by the conviction and sentence both the accused preferred appeal in Criminal Appeal No.176 of 2010 and the High Court by judgment dated 9.7.2013 dismissed the appeal. Challenging the conviction and sentence appellant/accused No.2 Chetram has preferred the present appeal.

4. The case of the prosecution in brief is as follows: PW1 Dharam Singh and deceased Udairaj are sons of PW5 Sohan Singh. Accused No.1 Ganga Ram is the son of Rampal, the brother of PW5 Sohan Singh. Accused No.2 Chetram is brother-in-law of Ganga Ram. Accused No.2 Chetram had come to the house of Accused No.1 Ganga Ram about 10 days prior to the occurrence. PW5 Sohan Singh’s family was not in talking terms with the family of accused No.1 Ganga Ram. On 4.9.2007 Dharam Singh and his brother Udairaj who are residents of Meerapur Modiwala village had gone to New Colony, Kalagarh and Udairaj was selling guavas on the side of road near the motor-cycle mechanic shop and PW1 Dharam Singh was selling guavas on other side of the road near the bank. In the afternoon at 1.30 p.m. both the accused came there and while accused No.2 Chetram caught hold of Udairaj, accused No.1 Ganga Ram stabbed him with knife. On seeing this PW1 Dharam Singh ran towards them and both the accused fled away. PW2 Danwari Lal and PW3 Balwant saw the accused persons fleeing away from the occurrence place. Blood was oozing out from the injury on the left thigh of Udairaj and PW1 Dharam Singh took him to the hospital but Udairaj died on the way. PW1 Dharam Singh lodged the complaint in writing at 2.20 p.m. in FIR Ka-1 in Police Station Kalagarh. On the said complaint chick report Ex.Ka-18 was prepared registering the case under Section 302 IPC. Ex. Ka-7 is the relevant entry in general diary. Inquest was conducted in the presence of Panchayatdars–and Ex. Ka-11 Inquest Report was prepared and the body was sent for post-mortem. Blood soaked earth and sample earth were taken from the occurrence place under Ex.Ka-17 and Ex.P-8 is the spot map.

5. PW4 Dr. J.C. Dhyani conducted autopsy on the body of Udai Raj at 3.00 p.m. on 5.9.2007 and found the following ante-mortem injuries:

“(1) an elliptical shaped incised wound of the size 8 cm length x 4 cm width at 3 cm depth over middle part of front of left thigh, about 15 cm above left knee, the wound is reddish in colour, clotted blood present underling soft tissues, muscles and great vascular blood vessels are injured.

(2) Another incised wound, elliptical shaped, of size 5 cm length x 1 cm width over back of the left elbow, the wound is superficial deep only.”

He expressed opinion that death has occurred on account of shock and hemorrhage due to excessive bleeding as a result of ante-mortem injury No.1 and issued Ex.Ka-4 post-mortem certificate.

6. The investigation officer seized blood stained trouser of deceased Udairaj under Ex.Ka-3 and sent the other articles for examination at the forensic laboratory. He also recovered the knife on 16.10.2007 under recovery Memo Ex. Ka-5. He completed the investigation and filed Ex.Ka-10 charge-sheet against both the accused.

7. In order to prove the case prosecution examined PW1 to PW9 and marked the documents. No witness was examined on the side of the defence. The accused were questioned under Section 313 Cr. P.C. and their answers were recorded. The trial court fo