JUDGMENT :

VIRENDRA KUMAR SRIVASTAVA, J.

1. This appeal under Section 374 (2) Code of Criminal Procedure, 1973 (hereinafter referred to as Code) has been preferred against the judgment and order dated 20.01.2020, passed by VIth Additional Sessions Judge, Lakhimpur Kheri, in Sessions Trial No. 207/1992 arising out of Case Crime No. 71/90, Police Station-Phardhan, District-Kheri, whereby the appellants-Kamlesh Kumar and Chotey Lal (hereinafter referred to as appellants) have been convicted and sentenced for the offence under Section 304 (2) read with 34 I.P.C. for four years rigorous imprisonment each.

2. The prosecution case, in brief, is that the appellant-Kamlesh Kumar is son of the appellant-Chotey Lal, resident of Village-Rousa, P.S. Fardhan, District-Lakhimpur Kheri. The deceased-Ram Avtar was neighbour to the appellants. There was enmity between the deceased-Ram Avtar and the appellants due to land dispute. On 22.05.1990 at about 2:00 p.m. Ram Kishore (PW-2), brother of the informant, Ram Kishan (PW-1) and Rajesh Kumar, son of Ram Avtar (deceased) had gone to take water from hand pump. At the time of occurrence, Ram Kishore (PW-2) was operating the hand pump and Rajesh Kumar was taking water with hollowed palm (Chhullu). Meanwhile, Sunita, daughter of the appellant-Chotey Lal, came there and put soil (dust) in the hollowed palm (Chullu) of Rajesh Kumar and thereafter hot talk started between them. Meanwhile, the appellants-Kamlesh Kumar, Chotey Lal and co-accused-Ram Vilas (since deceased) appeared with lathi and started to beat Rajesh Kumar and Ram Kishore (PW-2). Upon hearing a noise, Ram Avtar and Maya Devi (PW-3) came there to save Rajesh Kumar and Ram Kishore (PW-2) but the appellants and co-accused-Ram Vilas (since deceased) also beaten them. Appellant-Kamlesh Kumar attacked on the head of the deceased-Ram Avtar with lathi, whereby he fell down and became unconscious. The said occurrence was seen by Rama Kant son of Girija Dayal, Sarafat Ali son of Karim and Kanhaiya Lal son of Kunj Bihari, resident of Parsehra Khurd, P.S. Neemgaon and when so many people raised alarm, the appellants and co-accused-Ram Vilas (since deceased) by threatening fled away from the place of occurrence towards their house.

3. Ram Kishan (PW-1) got the first information report (Ext.Ka-1), prepared by one Parmesh Chandra Tiwari and carried the injured persons including Ram Avtar by tractor to police station-Fardan and lodged the report. On the basis of the said information, case crime No. 71 of 1990, under Sections 308, 323, 504 and 506 I.P.C. was registered on 22.05.1990 at 3:45 p.m. by Constable-Narendra Nath Tiwari. The injured persons, including the deceased-Ram Avtar were sent for medico legal examination and for treatment to District Hospital, Lakhimpur Kheri where Ram Avtar was admitted due to critical condition but he died after sometime. The medico legal examination of other injured person namely Rajesh Kumar and Ram Kishore (PW-2) and Maya Devi (PW-3) was conducted by Emergency Medical Officer on 23.05.1990 between 00:30 a.m. to 00:50 a.m. The death information report of the deceased was sent to concerned police station. S.I. Munna Lal Bajpayee conducted the inquest proceeding and prepared the inquest report (Ext.Ka-2) in the presence of punch witnesses including Ram Kishan (PW-1). The dead body of the deceased was sealed and was sent for post-mortem examination to District Hospital, Lakhimpur Kheri.

4. Dr. Y.B. Chand (PW-4) conducted the post-mortem examination of the deceased-Ram Avtar on 23.05.1990 at about 4:00 p.m. and prepared the post-mortem report (Ext.Ka-3). According to him, the deceased was aged about forty years and had died one day before, rigor mortis passed off from both upper limbs and postmortem staining was present on back of deceased. According to him further, the following ante mortem injury was found at the time of examination:

“(1) Lacerated would 1 c.m. x ½ cm x bone deep on the right side of the head 4 cm above to