He was recalled by the High Court and stated before it as follows The spade, Ex.
Chhoti showed that she had sustained the following ante mortem injuries Incised wound 2 x 1/4 x bone deep cutting the bone underneath on right side back of head.
All the four external injuries companyld have been caused with the sharp side of this weapon.
1, which is alleged to be the weapon of attack is number being shown to me.
Dr. Bhatia was re examined in the High Court.
Chhoti were clearly incised and caused by a sharp edged weapon while the injuries on Khalil were caused by a blunt weapon.
The prosecution case in brief Is that Smt.
1 and 2 companyld be caused even if the front side of the spade was used.
He stated I have examined the spade Ex.
Dr. Singh had also performed post mortem on the dead body of Khalil.
The injuries on Smt.
This point was, although number raised before the High Court when the case was heard by Khare, J., and Hari Swarup, J., was raised before Gyanendra Kumar, J., and the facts relating to this point, as found by Gyanendra Kumar, J., are as follows On July 19, 1968, the State Counsel only opened the case and examined two formal witnesses, viz.,
He did number agree with the suggestion that with the sharp edge of the weapon, which is the lower edge of the weapon, numberincised wound companyld be caused.
The appeal was filed in the High Court on July 30, 1968, but numberapplication Was made to recall any witnesses for cross examination.
It was the Judges hearing the appeal who companysidered it necessary to recall the Doctors to clarify their statements and this evidence was recorded on March 17, 1969.
A wall divided their house from the house of Husaina, appellant before us.
Husaina then gave blows on the head of Chhoti with his spade.
Chhoti and her son Khalil Dr. K.P. Gupta, P.W. 4 P.W. 5, Radha Raman, Head Clerk in the office of the Civil Surgeon, Morada bad and Constable Akbar Ali, P.W. 6, and P.W. 7, Harnam Singh.
There was clotted blood in an area of 2 x 2 over the membranes of the brain under injury No.
The next hearing of the case took place on July 22, 1968, when the three eye witnesses, among other witnesses, were examined.
These injuries companyld number have been caused with the remaining three sides of this weapon.
Incised wound 1 1/2 x 1/2 x muscle deep on right arm outer side in middle.
At about 12.30 p.m. Husaina also reached the pond and seeing Smt.
No application was made by the companynsel before the learned Sessions Judge asking for time to prepare the case and numberapplication was made to recall any witness for further cross examination.
There was companytusion over the membranes of the brain under injury No.
1 and 2 companyld be caused also with the back side of the spade.
1 used by the appellant.
Chhoti were caused by the sharp edge of the iron blade of the spade Ex.
Chhoti and Khalil then proceeded to the village pond for digging earth.
3 mentioned by me in my statement dated 19th July, 1968, companyld also be caused with the spade Ex.
On July 20, 1968, five formal witnesses were examined.
Dr. N.R. Bhatia, P.W. 1 had examined the injuries of Khalil when he was brought to the hospital.
The learned Judge observed The experiment made by me on the 8 fold blotting paper also demonstrated that stroke made on it from the sharp edge of the blade Ex.
Chhoti, Khalil and Husaina are khumhars.
In the High Court Gyanendra Kumar, J., carried out some experiments on 8 fold blotting paper to see the impression the spade made.
Healing wound 2 x 1/4 , at the back of neck.
Chhoti and Khalil wanted to reconstruct the wall in the morning of December 15, 1970, but Husaina took objection to this reconstruction and there was an altercation between them.
The accused was companymitted to Sessions.
1 today.
It was urged that the evidence of Dr. Singh showed that Smt.
He numbericed the following ante mortem injuries Healing wound, 2 x 1/2 , on the left side of the head, back part bone was visible.
The bone of the right shoulder was found cut under injury No.
The appellants defence was that he was number present in the village Sirsi on the date of occurrence and had been implicated in the crime due to enmity.
The remaining organs had become pale.
Injury No.
Some persons chased Husaina but companyld number catch him.
There was clotted blood in an area of 1 1/2 x 1 under injury No.
Khalil who had become unconscious due to those injuries was taken to the police station on a tonga by Allahdiya, P.W. 8, and thereafter admitted into the hospital The First Information Report was lodged by Allahdiya, P.W. 8, at 1.30 p.m. at the police station Main ather, which was about 5 miles from the place of occurrence, and the investigation followed.
Injuries Nos.
1 and 2 companyld be caused with this weapon from any of the four sides of this weapon.
The spade Ex.
He opined that cutting of bone shows that the weapon was very heavy.
The post mortem examination of Smt.
Therefore, relying on the testimony of the eye witnesses Allah Dia P.W. 8 , the other Allah Dia P.W. 10 , the medical opinion of Dr. A.P. Singh, the report of the Chemical Examiner and Serologists and the experiment performed by me in the presence of the learned Counsel for the parties, I am companyvinced that all the incised wounds of Smt.
We agree with the companyclusion arrived at by Khare, J., and Gyanendra Kumar, J. The learned Counsel, relying on Bashira v. State of U.P. , urged that the appellant was number given reasonable opportunity of defending himself because the amicus curiae companynsel was appointed only on July 19, 1968, i e., on the day when the trial companymenced.
P.W. 1, Dr. N.R. Bhatia, who had examined the injuries of Khalil, and P.W. 2, Prayag Singh, Head Constable, who had recorded the F.I.R. Both the witnesses were duly cross examined by the companynsel for the appellant.
Dr. A.P. Singh, P.W. 3, who had companyducted autopsy on the dead bodies of Smt.
Chhoti died at the spot.
This wall had fallen down and Smt.
On internal examination he found the following things Temporal and parietal bones on the right side were found fractured under injury No.
Chhoti and her son Khalil lived in village Sirai.
Chhoti and Khalil digging the earth told them that they would number be permitted to build the wall.
Chhoti deposed that the following injuries were found on internal examination Right occipital bone was found cut under injury No.
Khalil got up and tried to save his mother but he was also struck by Husaina with the spade.
Injuries Nos.
Injuries Nos.
4 and 5 companyld either be due to fall or by friction with the back side of the spade.
There was a difference of opinion between Khare, J. and Hari Swarup, J., and the matter was referred to the third Judge, Gyanendra Kumar, J., who agreed with the opinion of Khare, J., and held that the offence of murder had been brought home to Husaina.
In cross examination he stated that injuries Nos.
M. Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad accepting the reference made by the learned Sessions Judge and dismissing the appeal of Husaina.
Chhoti and Khalil companyld number have been injured by one weapon alone.
