JUDGMENT

C. B. Capoor, J. - This appeal by the State of Uttar Pradesh is directed against an order of the learned Civil and Sessions Judge, Fatehpur, acquitting the respondent of an offence under Section 302 I.P.C. The accusation against the respondent was that on July 30, 1962, at about sun-rise time he had committed the murder of Desh Raj while he was sleeping on a cot in front of his house in village Kumharan ka purwa, a hamlet of Chak Saroli police-station Hathgaon district Fatehpur.

2. Basdeo (P.W. 3) is the son of one Pittan who resided in Kumharan ka purwa. On the death of Pittan his widow was kept by Desh Raj deceased who began to reside in the house of Basdeo about five or six years ago. In front of and at a distance of about 100 cubits from the aforesaid house of Basdeo there was a Bel tree close to which was the land of Sheo Bhajan Ahir and with the permission of Sheo Bhajanesh Raj used to tether his cattle on that land. On July 29, 1962 the respondent fixed his pegs in that land. This was taken exception to by Desh Raj who pulled out the pegs and threw them away. An exchange of hot words and abuses took place between Desh Raj and the respondent and a threat was held out by the respondent that if he was true to his salt he would cut his neck. On the night between July 29/30, 1962 Basdeo (P.W. 3), Desh Raj deceased and Smt. Munnia, sister of Basdeo slept in front of their house on three separate cots. At about sun rise Basdeo felt some movement close to his cot and was awakened and saw that the respondent was inflicting blows with a Gandasa at Desh Raj. Basdeo got up i from the bed and raised an alarm, where at Sukhnandan (P.W. 2), Srinath (P.W. 1), Baldeo (P.W. 4) and &Raghurai (P.W. 13), who happened to be in close vicinity rushed to the scene of occurrence and the respondent was caught red-handed with a Gandasa in his hands by Basdeo (P.W. 3) and Srinath (P.W. 1). The Gandasa appeared to be blood-stained. The persons who had reached the scene of occurrence tied the respondent with a rope and made him to sit in front of the house of Basdeo. The Gandasa (Ext. 1) was placed on the ground at a distance of two or three cubits from the respondent. The victim succumbed to his injuries almost instantaneously. Baldeo (P. W. 4) was sent to fetch the Chaukidar of village Itaili who reached, the house of Basdeo after about an hour. Thereafter the respondent was escorted to the police-station by the Chaukidar, Basdeo (P. W. 3) and Srinath (P. W. 1). The Gandasa (Ext. 1) was also taken to the thana. Basdeo lodged a report at police-station Hatgaon on the the same day that is on July 30, 1962 at 8 a.m. The Gandasa Ext. 1 was also handed over at the police-station and the respondent was taken into custody. He was wearing a Dhoti Ext. 2 which appeared to be blood-stained and that was also taken into possession.

3. The post-mortem examination on the dead-body was performed on July 31, 1962 at 9.45 a.m. The probable time since death was estimated as a day.

4. As a result of the external examination the following ante mortem injuries were found:

(1) Transverse incised wound 1 x x bone deep on the chin lower jaw bone cut 114" deep.

(2) A big gaping wound with sharp margins oblique, slightly higher on left side and lower on right side, and a resultant of four injurise by a sharp edged cutting weapon. It is 7" x 2" x vertibral column deep, on left side, front and right side of neck. Its left end is 2" below left ear while right end is 2" below right ear. All muscles, vessels trachea, oesophagus etc. are cleanly cut across, more on the left side than on the right. Body of the 5th cervical vertebrae clearly cut across completely along with spinal cord. Body of 6th cervical and 7th cervical cut across completely except for a very small portion of right side where they remain united. Vertebral column dismembered at the level of 5th cervical vertebra. Trachea and oesophagus cut across at three places.

(3) Oblique incised wound 1" x ?" x skin d