UMA NATH SINGH, J.

( 1 ) THIS criminal appeal filed by the State arises out of a judgment dated 13/11/1995 passed by learned Sessions Judge, Sajapur in Sessions Trial No. 336/91 acquitting accused Sanjay, Sitaram and Rajesh of charge under Sections 302/34 of the Indian Penal Code. The State preferred this appeal with application for leave to appeal, which was granted only in respect of accused respondent Sitaram.

( 2 ) BRIEFLY narrated the facts of the prosecution case giving rise to this criminal appeal are that on 6. 7. 1991 at about 11 Oclock in the day time deceased Balvir Singh was at home. Adjoining his house was situated a building known as Sanjay Lodge which belonged to accused. The said building was under construction on the date of incident. At about 10 Oclock on the date of incident some bricks fell on the house of the deceased from the second storey of the adjoining house. The deceased objected to that and cautioned the accused against such negligence. Being infuriated all the three accused, namely, Sanjay, Sitaram and Rajesh came out. At that time, Jasubai (PW 1), wife of the deceased was cooking food inside the house and the deceased was standing nearby Hearing the shouts of the deceased, PW 1 cannot out and wit-nessed that the accused were grappling with the deceased. Accused respondent Sitaram caused a stab wound on the side neck of the deceased and the rest of the accused kept on grappling with him. Jasubai (PW 1) called her sons and carried the deceased to Hospital. Doctor vide Exhibit P-4 informed the police that the deceased was admitted in the hospital in injured condition, whereupon vide Exhibit P-8 police station incharge Satnam Singh recorded an offence under Section 307. The police made endeavour to record dying declaration of the decea-sed, but he was not in a fit condition to give the statement. The deceased was shifted to Bhopal for further treatment and after having undergone necessary treatment he was discharged. Again on 19. 7. 1991, his health deteriorated and therefore he was again lodged in the hospital. On 19. 7. 1991 itself at 1 Oclock he died. Post-mortem was conducted by Dr. V. P. Dubey (PW 6 ). In his opinion the cause of death was shock and duration of death was within, three to twelve hours of the post-mortem. He noticed a fresh healed scar of stitching of the size 1 and 1/2 inches long transversely situated on upper-most right side region of the neck. He also found another stitched mark of 2 Inches length being longitudinally situa-ted above supra-sternal tracheotomy site. The FIR (Exhibit P-8 WAS lodged at 19 hours on 6. 7. 1991, wherein the time of mci-dent was mentioned to be of 11 Oclock in the day time. The FIR was recorded on the basis of information received from the doctor. In the FIR, it was mentioned that the deceased had been brought to hospital in injured condition with incised wound on the right side of his neck and his condition having been serious he was shifted to Bhopal for further treatment. On the same date i. e. on 6. 7. 1991, the Sujalpur police had asked for medical report which was given vide Exhibit P-3 by Dr. Shivnarayan Gupta (PW 5 ). He found an incised wound of 2-1/2 x 1- 1/2 inches depth (not probed ). He also found a cut on the right trachea, which had been caused by a sharp-cutting object. He found the nature of injury being grievous. On the memorandum under Section 27 of the Evidence Act given by accused respondent Sitaram, the knife by which the injury was caused on the neck of the deceased was seized vide Exhibit P-2. Vide Exhibit P-9 on 7. 7. 1991, the blood stained clothes of the deceased were also seized. Vide Exhibit P-b, 1. 0. Satnam Singh (PW 7) seized the blood stained and controlled earth from the spot of incident. On 12. 7. 1991 accused Rajesh, s/o Sitaram was arrested vide Exhibit P-li. Vide Exhibit P-12, accused Sanjay and Sitaram were arrested. In the inquest report (Exhibit P-14) the cause of death of the deceased was found to be stab woun

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