JUDGMENT

Palok Basu, J. - Liaqat alias Bhagwandeen, his son Badri Ram Prasad alias Prasadi and his brother Babulal have filed this appeal against the judgment and order dated 30.10.1979 passed by Vth Addl. Sessions Judge, Kanpur where by all the appellants have been convicted under sections 302/34I.P.C. and sentenced to life imprisonment and 323/34 I.P.C. sentenced to one year R.I. Both the sentences were directed to be run concurrently.

2. The charge against the appellants was that on 21.11.1978 at about 5.30 P.M. all the four appellants in furtherance of their common intention committed the murder of Shyam Manohar and thereby committed an offence punishable U/s 302 I.P.C. and also caused injuries to Triloki Nath Verma and thereby committed an offence punishable U/s 323/34 I.P.C. It may be mentioned here that the appellant Liaqat and Badri were said to have been armed with knives at the time of actual incident whereas the other two appellants Ram Prasad and Babulal were unarmed.

3. P.W. 1. Triloki Nath lodged a first infonnation report on 21.11.1978 at 5.45 P.M. at police station Babu Purwa, Kanpur alleging therein that his brother Shyam Manohar has been done to death and he was been assaulted. All the four appellants were named in the said first information report.

4. According to the prosecution, informant Triloki Nath and deceased Shyam Manohar had gone to appellant Liaquat's Coal shop some altercation took place regarding the price charged at which Liaqat and his son Badri got infuriated and abused them. Badri appellant took out a knife, with the result that the informant and deceased ran to their house. At about 4.45 P.M. Triloki Nath was going to purchase vegetables when he met Liaqat near the Public Latrine in village Dhakna Purwa. Liaqat told him not to feel offended and offered him to take ginger. Both went to nearby ginger shop and had taken four ounces of wine each. price of which was paid by Liaqat appellant. Then they went to Pakauri shop situated nearby. Trilok Nath remained at the pakauri shop while Liaqat appellant left the shop. When Triloki Nath started for his house and reached near the Railway Line he saw that the appellants Liaqat and Badri were assaulting his brother Shyam Manohar with Knives. As soon as he rushed to save him, the other appellants Prasadi and Babulal intervened, Prasadi floored him on the ground and Babulal gave him blows by kicks

and fists At the hue and cry, several other persons such as Madar etc. arrived at which the appellants fled away. Triloki Nath found that his brother Shyam Manohar has died and leaving the body with the witnesses, he started for the police station. He mat P.W. 7 Bashiahtha Narain Jha a constable on patrol duty who was posted at outpost Babu-Purwa. However, after informing him about the murderous assault and telling him in short the incident informant did not stop there and went to police station directly P.W. 2. Satya Swaroop Yadav constable Muharrir was present who took down the dictation of Triloki Nath information, registered a case and prepared chik report. The F.I.R. has been proved as Ext. Ka 2.

5. Since informant Triloki Nath was having, injuries, a Majroobi Chiththhi was prepared and consequently Triloki Nath was sent to the Ursuta Hospital through Constable Suraj Singh who has filed on affidavit. Inspite of his filing of aftidavit the Trial Judge has mentioned him as P.W. 4. However, he has not been cross-examined.

6. Triloki Nath was medically examined on 21.11.1978 at 8.10 P.M. Dr. A.K. Rastogi found the following injuries on his person:

1. Abraded contusion 3.5 cm. x 3 cm. on left temporoparietal region, 5 cm. above and front of left ear.

2. Abrasion 1 cm. x 7 cm. below of right elbow.

3. Complains of pain on left ankle outerside.

The medical report further says that smell of alcohol was present in the breath but gait and speech of the victim was normal. All the injuries were found simple and fresh and were caused by blunt object. The victim was