[Per : Hon’ble Rajeev Gupta, C.J. (Oral)]

The appellants have preferred his appeal under Section 374(2) Cr.P.C. against the impugned judgment dated 01.08.1986 passed by Sessions Judge, Nainital in Sessions Trial No. 229 of 1984, whereby appellant Khima Nand was convicted under Section 302 and appellant Kirti Ballabh under Section 302 read with 24 of the Indian Penal Code with sentences of imprisonment for Life.

2. The short facts of the case, essential for deciding this appeal are that :

A. appellants Khima Nand and Kirti Ballabh are real brothers. Informant Hari Dutt is father of Kanti Ballabh (since deceased) and Tara Devi is his sister. Kanti Ballabh was employed in Jal Sansthan at Nainital. On 19.10.1984, at about 7:00 p.m., when Kanti Ballabh was taking his meals in his house and his father Hari Dutt, sister Tara Devi and mother Smt. Devki Devi were also present there, appellant Khima Nand asked Kanti Ballabh to come out of his house. When Kanti Ballabh came out of the house, appellants Khima Nand and Kirti Ballabh inquired from Kanti Ballabh as to why water was not being supplied to their house. Kanti Ballabh replied that there was some defect in the pipeline and, as such, he could do nothing in the matter. Kirti Ballabh, not being satisfied with his reply, caught hold of Kanti Ballabh by both of his hands and exhorted his brother Khima Nand to assault him. Appellant Khima Nand took out a knife from his pocket and dealt one blow on the chest of deceased Kanti Ballabh. The alarm raised by Hari Dutt attracted witness Jaint Singh. Deceased Kanti Ballabh, after sustaining the injury on his chest, fell on the ground and both the appellants fled away from the place of occurrence. PW1 Hari Dutt and PW3 Tara Devi saw the entire incident in the light of the lantern.

B. Hari Dutt, father of Kanti Ballabh, took his injured son first to the dispensary at village Daulatpur and then to Civil Hospital, Haldwani. The doctor, on examination, declared Kanti Ballabh dead. Hari Dutt, then, lodged the First Information Report by submitting a written report at Police Station Haldwani at 11:20 p.m. The Investigating Officer, after observing the necessary formalities of preparing inquest etc., sent the body of deceased Kanti Ballabh for Post Mortem Examination. The autopsy surgeon found one incised wound on the chest of the deceased as detailed in the Post Mortem Report (Ex. Ka. 3). During the course of investigation, accused Khima Nand and Kirti Ballabh were arrested by the police. After completion of the investigation of the case, the police filed charge sheet against the accused persons alleging commission of the offence punishable under Section 302 read with 34 I.P.C.

3. Accused Khima Nand and Kirti Ballabh abjured their guilt and pleaded false implication to the charges framed by the Trial Court under Sections 302 and 302 read with 34 of the Indian Penal Code respectively.

4. At the trial, the above charges against the accused persons were sought to be proved on the evidence of PW1 Hari Dutt, PW2 Jaint Singh, PW3 Tara Devi, PW4 Head Constable Irshad Ahmad, PW5 Sub-Inspector Karam Hussain, PW6 Dr. B.P. Aggarwal and PW7 Constable Rajpal Singh. The accused persons, however, did not examine any witness in their defence.

5. Of the seven witnesses examined by the prosecution at the trial, PW1 Hari Dutt and PW3 Tara Devi are eye-witnesses of the incident of assault on deceased Kanti Ballabh, whereas PW2 Jaint Singh saw the accused persons running away from the place of occurrence.

6. The Trial Court, on a close scrutiny of the evidence led by the prosecution at the trial, found the evidence of the two eye-witnesses PW1 Hari Dutt and PW3 Tara Devi truthful and reliable. The Trial Court further found that the evidence of these two eye-witnesses was amply corroborated by the evidence of PW2 Jaint Singh and the medical evidence of PW6 Dr. B.P. Aggarwal, who categorically stated that the incised wound, found on the chest of deceased Kanti Bal