Hon’ble Vijay Kumar Verma, J.—Heard Amicus Curiae Shri Sudhir Bharti appearing for the appellants and AGA for the State.

2. This appeal has been preferred against the judgement and order dated 16.2.1979 passed by the IVth Addl. Sessions Judge, Bareilly in S.T. No. 118 of 1978 (State v. Pati Ram and others), whereby the appellants Pati Ram and Ram Swarup have been convicted and sentenced to undergo rigorous imprisonment of three years under Section 304, IPC read with Section 34, I.P.C.

3. Lower Court record has been burnt in the fire, which broke out in Bareilly judgeship in the intervening night of 18/19-11-1979. Hence, the case of the prosecution is being mentioned from the certified copy of the impugned judgement, which has been filed in this appeal.

4. The prosecution story, in brief, is that the complainant Kundan Lal is the uncle of the accused and witnesses Shiv Singh and Behari Lal are his Khandani. All these persons live in the same house though their residential portions are separate from each other. The complainant had three sons and Baboo Ram deceased was his second son. The complainant Kundan Lal purchased mango crop of a grove during the days of occurrence and on the date of occurrence he and his third son Bhoop Ram were looking after it from the morning time. Baboo Ram deceased also went to the same grove, but he returned to the house by noon. Baboo Ram deceased left some money in the pocket of his Kurta before going to the said grove but found it missing after his return from there. He asked the accused about that money but the accused persons denied to have taken it. They also started abusing Baboo Ram and Baboo Ram had also abused the accused persons. Thereupon the accused Ram Swarup grappled Baboo Ram and the accused Pati Ram caused injuries to him with his ‘Hansia”. However Baboo Ram got himself free, snatched the “Hansia” from the accused Pati Ram and used it in his private defence. After sustaining the injuries Baboo Ram fell down under “Oalti” of his thatch and sufficient blood had also fallen on the ground. This occurrence was witnessed by Shiv Singh and Behari Lal who were present at the time of occurrence. On hearing this “Marpit” the complainant Kundan Lal rushed to the house from the said grove and made enquiry from his son Baboo Ram about the occurrence. Accordingly Baboo Ram narrated the story and the manner in which the occurrence took place. The complainant got scribed a written report Ex.Ka-1 from Shiv Singh and thereafter took the injured Baboo Ram to P.S. Bhojipura in a bullock cart. The complainant was directed by the police men to go Bhojipura Block Hospital for treatment but unfortunately Baboo Ram died at the said hospital. Thereafter his dead body was taken to P.S. Bhojipura.

5. The investigation of the case was carried out by S. I. Surat Singh, who submitted chargesheet against both the appellants. On the case being committed to the Court of Session for trial, charge under Section 304 read with Section 34, IPC was framed to which the accused persons pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution examined P.W. 1 Kundan Lal, P.W. 2 Nathoo Lal, P.W. 3 Shiv Singh, P.W. 4 Sri Surat Singh (I.O.), P.W. 5 Dr. A. K. Pandey and P.W. 6 Dr. V. S. Saxena.

7. In defence, the accused persons had examined Mangli as D.W. 1 and filed three papers (Ext. Kha-6 to Kha-8).

8. After hearing parties counsel and taking entire evidence into consideration, the learned Court below convicted and sentenced the appellants as stated in para-1 above. Hence, this Appeal.

9. After admission of the appeal, lower Court record was summoned from the Sessions Judge, Bareilly, who reported that lower Court record has been burnt in fire, which broke out in Bareilly judgeship in the intervening night of 18/19-11-1979. The Sessions Judge, Bareilly was directed to re-construct the record, but vide letter No. 14/VIII-Crl dated 24.3.2009, the In-charge Sessions Judge, Bareilly has r