Hon'ble Bharat Bhushan,J.

Hon'ble Alok Kumar Mukherjee,J.

(Delivered by Hon. Bharat Bhushan, J.)

1. This criminal appeal on behalf of surviving appellant Mukesh assails judgment and order dated 24.2.1983 passed by the then Additional Sessions Judge, Meerut in Sessions Trial No. 198 of 1982 (State versus Sanjay and another) whereby sole surviving appellant Mukesh and late appellant Sanjay were convicted under section 302 read with section 34 Indian Penal Code (in short, IPC) and sentenced to undergo imprisonment for life.

2. During pendency of this appeal, appellant Sanjay died, therefore, his appeal stands abated. This Court is now concerned with the appeal of sole surviving appellant Mukesh only.

3. Appellant Mukesh and late appellant Sanjay were brothers. Deceased Brijesh Mohan Sharma and informant Dharmesh Mohan Sharma (PW-1) were brothers too. Both, accused-appellants and deceased used to reside in Shivpuri locality though houses of deceased and appellants were situated on Hapur and Garh road respectively. Smt. Vimla, Bua (father's sister) of deceased and wife of veterinary doctor used to reside at the residence provided within compound of veterinary hospital situated at Hapur-Garh road, Meerut. On the day of incident (5.2.1982), informant Dharmesh Mohan Sharma (PW-1) and his elder brother Brijesh Mohan Sharma left their residence at about 3:45pm for visiting their Bua Smt. Vimla, then living in the compound of veterinary hospital. PW-2 Rajendra also met and joined them. As soon as, they reached near the house of Sri Ram Kumar Sharma, owner of National Book Depot, his son, namely, Mukesh (appellant) and Sanjay (deceased appellant) accosted them. Appellant Mukesh was armed with spear (bhala) and late appellant Sanjay was wielding knife. Both of them expressed their annoyance at the alleged use of foul language by deceased against accused persons and threatened to kill him. Appellant Mukesh first advanced towards deceased Brijesh Mohan Sharma aiming spear at him but caught by PW-1 Dharmesh Mohan Sharma (informant). Both of them scuffled with each other. In the meantime, late appellant Sanjay attacked deceased Brijesh with knife and caused injuries. PW-1 Dharmesh Mohan Sharma pushed appellant Mukesh away and tried to grab accused-appellant Sanjay who pushed the informant back and then struck deceased Brijesh Mohan Sharma several times with knife whereupon already injured deceased fell on the ground. Mukesh also attacked deceased with handle part of Spear (Bhala). The blood sprinkled over cover of the car of accused persons and some blood also scattered on the ground. A crowd also gathered there whereupon both the accused fled from the spot.

4. Injured deceased was initially admitted to Pyare Lal Sharma Hospital (in short, P.L.Sharma Hospital) and later shifted to Medical College, Meerut. In the meantime, a report was scribed by Dinesh Mohan Sharma at the dictation of Dharmesh Mohan Sharma (PW-1) and lodged at Police Station (in short, P.S.) Civil Lines, Meerut at 4:55pm.

The place of occurrence was situated at 1 ½ kms. away from the P.S. Civil Lines, Meerut. The deceased was examined by Dr. Sharvan Kumar (PW-6), who found the following injuries on the person of deceased :-

1. Incised wound 3 cm. X ¾ cm. X depth not probed. Over Rt. Side of chest 6 cm. from the nipple- tailed outer side.

2. Incised wound 4 cm. X 2 cm. X depth not probed on Lt. Side of chest over 11 cm. above the left nipple-tailed outer part.

3. Incised wound 1/8 cm. X 1/8 x muscle deep on outer front part of Rt. thigh upper part.

4. L. wound 3 cm. X ½ x scalp deep on Lt. side of head 8 cm. Above the head.

5. Deceased then succumbed to the injuries and died therefore, the case was converted to section 302 IPC and relevant entries were made in General Diary (in short, G.D.) at the P.S.Civil Lines. Initial investigation was conducted by one S.I. Pooran Singh Sagar (PW-5). He recorded statements of Dharmesh (eye-witness) and Head Moharrir Kripal Singh (PW-7) visited P.

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