The instant appeal is preferred against the judgment and order dated 25.2.2002 passed by Additional Ses­sions Judge, Fast Track Court No. 1, Fatehpur in Session Trial No. 589 of 1997-State v. Sitaram arising out of Case Crime No. 123 of 1997.

2. The appellant has been convicted and sentenced under Section 304 I.P.C. for life imprisonment and fine of Rs. 4,000/-. In de­fault of payment of fine, one year imprison­ment and also under Section 324 I.P.C. 2 years R.I. The trial had proceeded under Sections 304, 308 I.P.C. but the conviction was con­verted under Section 324 I.P.C. instead of Section 308 I.P.C.

3. The appellant is in jail since last 13 years. He had no counsel to defend himself and, therefore, Sri Amit Kumar Srivastava Advo­cate was appointed as Amicus Curiae in the instant appeal to argue the case.

4. The incident is said to have taken place on 3.6.1997 at 12.30 p.m. in the house of first informant Ram Swarup who happens to be real brother of the accused. F.I.R. was regis­tered on the same day i.e. 3.6.1997 at 1.20 p.m. at Police Station Khakhreru, District Fatehpur. The accused appellant was arrested on the spot.

5. According to narration of the F.I.R. reg­istered on 3.6.1997 Ex. Ka-8. a written re­port Ex. Ka-1 was given at police station Khakhreru by Ram Swarup. The prosecution story is that Ram Swarup was sitting at his door with his two daughters. At about 12.30 p.m. he heard shrieks of his father and as soon as he proceeded towards his father's door, he saw the accused Sitaram who was a mentally challenged person since before the incident, had an axe in his hand which was soaked in blood. Certain blood drops had also sprinkled on him. He ran towards the first informant who tried to hide but before he could save his son Dharamvir Singh, the accused as­saulted him by the blood soaked axe in his hand and wielded axe blows on Pintu alias Mahesh, nephew of Kishan who is resident of the same village, he died instantaneously. The first informant's son was injured very badly. Suresh, Rambali and several others ran towards his house after hearing shrieks. Sitaram accused ran towards back side of the house where his sister-in-law (Bhabhi) Belpatiya was sitting with her niece. He also assaulted them by the same axe. Maya died on the spot, sister-in-law Belpatiya fell down after receiving axe injuries. Thereafter he tried to run towards West of the house when he was apprehended on the spot by Pyare son of Baldeo. The accused tried to attack Pyare also who received minor injuries on his hand. However, the people who had gathered there, were able to catch him and handed him over to the police.

6. Three persons namely Smt. Belpatiya wife of Kishori Lal, Smt. Maya wife of Rakesh Pasi and Mahesh son of Budha Pasi have died in the incident. There are two in­jured persons namely Hulla son of Late Pitayee and Dharmvir son of Sarupe.

7. Smt. Belpatiya was examined at PHC Vijayeepur, District Fatehpur on 3.6.1997 at 8.15 p.m. Her injuries are detailed herein below:-

8. Incised wound over the middle of head measuring 10x4 cm in size whitish coloured Brain matter (grey matter) is coming out from cranium. Patient is unconscious in deep coma. Respiration is very deep. Planter reflex ex­tensor. Pupil dilated, not responding to light. Duration-Fresh.

Opinion

Injury has been inflicted by some cutting and heavy object.

Injury is dangerous to life

She is in severe head injury.

9. Post-mortem on the body of deceased Mahesh was performed by Dr. R.C. Kushwahaon4.6.1997 at 3.00p.m. which is Ex. Ka-2. Following ante-mortem injuries were found on his body.

Incised wound 8 cm. x 6 cm. x trachea deep on left side neck,

Arteries. Veins. Muscles, Tendeon and tra­chea cut away.

10. Post-mortem on the body of the de­ceased Smt. Maya was performed by Dr. R:C. Kushwaha on 4.6.1997 at 3.30 p.m. which is Ex. Ka-3. Following ante-mortem injuries were found on her body.

11. Lacerated wound 12 cm. 8 cm. x Brain deep on left side head, left parietal bone frac­tured. Brain mass

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