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3. The trial Court framed a charge under Section 302 read with Section 34 of the I.P.C and Sections 25 (B) and 27 of the Arms Act against accused Lalit and under Section 302 read with Section 34 against accused Altaf. Both the accused persons abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., Lalit took the plea of alibi. He stated that on the date of the incident, his maternal uncle (phuphaji) Ganeshram was seriously ill; therefore, he and his family had gone to tend him. When he returned, he was informed about the visit by the police; therefore, he had appeared before the Police Station Jahagirabad on 18.7.2002 of his own accord. He has been falsely implicated in the case due to previous enmity. The accused had examined as many as five witnesses in defence to prove that two unknown boys had altercation with deceased Chhotu and they had killed him and also that on the date of the offence appellant had gone to see his Phoophaji.

4. The trial Court recorded findings to the effect that there was previous enmity between accused Lalit and first informant Dalchand on account of the fact that accused Lalit wanted to dispossess Dalchand from the place occupied by him on the platform of Radha Krishna Temple and set up his own shop. Due to aforesaid enmity, there was an incident of stabbing involving accused Lalit and Prakash (PW-4). On the date of offence, accused Lalit accompanied by Altaf and Chiman had gone to Dalchand's Gumti with intention of killing him; however, since deceased Chhotu had facilitated escape of Dalchand from the spot, accused Lalit got enraged and he chased and delivered fatal blows with a sword to vital parts of deceased Chhotu's body resulting in his death. He was also held guilty of possessing and illegally using sharp edged weapon of prohibited dimensions. The statement of defence witnesses and plea of alibi taken by accused Lalit were held not to be reliable. Consequently, the accused Lalit was convicted and sentenced as stated above but accused Altaf was acquitted for want of any evidence.

13. It may be noted at the outset that First Information Report of the incident was lodged within 20 minutes of the incident in the police station that was about 1 km. from the spot. It is true that prosecution has failed to prove the report lodged by Prakash against Lalit and Pappu but on the basis of their oral testimony, which has remained practically unchallenged, it is proved beyond doubt that there was previous enmity between appellant Lalit and Dalchand and his family members because Lalit wanted to remove the Gumti being run by Dalchand near appellant's house on the platform of the temple. It is true that independent eye witness Dharmendra @ Dhammu (PW-10) has turned hostile; however, prosecution case has been supported by first informant Dalchand, Prakash (PW-4) and Button Lal (PW-

22. Now the only question that remains for consideration is whether the act of the appellant would fall within the ambit of culpable homicide amounting to murder or that of culpable homicide not amounting to murder?

23. In this case, there was previous enmity between appellant Lalit on one hand and Dalchand and his family member on the other because the appellant wanted to dislodge the first informant from the spot where he had set up his Gumti. There were also previous incidents of violence between two parties. In this backdrop, the appellant with two other persons armed with a deadly weapon like sword had gone to Dalchand's Gumti and had called him outside his house. However, when he realized that deceased Chhotu, who was living along with Dalchand and his family, had warned Dalchand regarding the danger and had facilitated his escape, he was enraged and rushed to kill Chhotu. When Chhotu ran away, he chased him and hunted him down. He delivered three blows with full force, one of them upon the neck of the deceased. He delivered two more blows. As a result, the deceased died on the spot. Taking aforesaid circumstances cumulatively into account, it may safely deduced that the intention of the appellant was to kill deceased Chhotu. There was neither any quarrel between the appellant and the deceased nor was there any provocation offered on the spot by the deceased. In these circumstance, it is proved beyond reasonable doubt that the appellant had delivered blows with sword to vital part of the body of the deceased with intention to kill him. The act of the appellant would also not fall within the purview of any of the exceptions enumerated under Section 300 of the I.P.C; therefore, his act would fall under the category of culpable homicide amounting to murder and would be punishable under Section 302 of the I.P.C.