KAMLESHWAR NATH AND RAJESHWAR NATH, JJ. Appellant Ram Piarey has been convicted under Sections 302 and 323, I. P. C. and sentenced to under go rigorous imprisonment for life, ann rigorous imprisonment for 6 months respectively, both sentences to run concurrently. His wife, Smt. Chandrawati, has been convicted under Section 302 read with Section 34,i. P, C. , and sen tenced to undergo rigorous imprisonment for life, and under Section 307, I. P. C. sentenced to rigorous imprisonment for 5 years. 2. In village Lachipur, P. S. Bhighapur, District Unnao, appellant Ram Piarey and his wife appellant Smt. Chaudrawati, lived in the house adjoining the house of formers brother Ambika, whose wife Smt, Rajana is said to have been murdered by the appellants. There was a partition of property between Ambika (P. W. 1.) and Ram Piarey accused in the times of their father, but there had been bickerings between them in connection therewith. The bickerings resulting in exchange of abuses of and on not only between male members but also between the ladies of the family. 3. It is said that on 19-2-1982 Ambikas wife, Smt. Rajana, along with her daughters Km. Ramlali and Km. Jagdei, aged about 9 or 10 years, was rturning with a bundle of green fodder from the fields, when the appellants were standing at the door of their house, Smt. Chandrawati threw a brick-bat at Smt. Rajana. The brick-bat is said to have hit Smt. Rajana on the head, she threw the fodder bundle, and rushed into her house and climed over the roof. It is alleged that thereupon Ram Piarey, armed with Pharsa, and Smt. Chand rawati, armed with a Gandasa, climbed over the roof of their own house, and went over to the roof of the house of Ambika, where Ram Piarey attacked Smt. Rajana with the Pharsa. When the two daughters, Km. Ramlali (P. W. 2) and Km. Jagdei (P. W. 3), lushed for the rescue of Smt. Rajana, Ram Piarey is said to have struck Km. Ramlali, and Smt. Chandrawati is said to have struck Km. Jagdei. The attak of Ram Piarey on the person of Smt. Rajana resulted in her death ; both the appellants ran away from the village itself. 4. Ambika had gone to the house of his mother, and on receiving infor mation, returned to the house, where he found Smt. Rajana dead, and Km. Jagdei. The attak of Ram Piarey on the person of Smt. Rajana resulted in her death ; both the appellants ran away from the village itself. 4. Ambika had gone to the house of his mother, and on receiving infor mation, returned to the house, where he found Smt. Rajana dead, and Km. Ramlali and Km. Jagdei injurned. He gathered the facts from Km. Ramlali and Km. Jagdei. He went to P. S. Bhigapur-9 Kms. away where he lodged the F. I. R. at 3. 45 p. m. 5. Constable-Clerk I. H. Rizvi (P. W. 6) recorded the report and regis tered the case. S. I. Nooor Mohammad (P. W. 7) took up the investigation, and reached the spot at. 6 p. m. the same day. He found the dead body of Smt. Rajana on the roof of the house, from where he collected samples of blood stained earth. He prepared the inquest report and the connected papers, and despatched dead body, along with the papers, are sealed, through a constable for post-mortem examination. He recovered Gandasa and Pharsa from the house of the appellants on that very day, which he claimed to have been blood-stained, but he did not send them for chemical analysis. 6. The site-plan of the locality was prepared by him on 20-2-1982. He sent Km. Jagdei for medical examination. Dr. J. N. Sarin (P. W. 4) examined Km. Ramlali at 9. 30 a. m. , and found two contusions of her person, namely 2 cm. x 5 cm. on the left side of the head, and a contusion 3 cm. X 2 cm. on the right shoulder. 7. He examined Km. Jagdei the same day at 9. 40 a. m. , and found one incised wound 3 cm. x 3 cm. scalp deep on her head. 8. The post-mortem examination of Smt. Rajana was done by Dr. J. N. Bajpai (P. W. 5) on 20-2-1982 at. 3 p. m. The doctor found 4 incised wounds on the person of Smt. Rajana. They were located on the neck (5" x 1"), left side of the back of chest (4 " x "), and two on the left thigh (4 " x " and 3 " x ) under which the bone was cut. 9. Both the accused surrendered in court, and where in course of time put up for trial. 10. They were located on the neck (5" x 1"), left side of the back of chest (4 " x "), and two on the left thigh (4 " x " and 3 " x ) under which the bone was cut. 9. Both the accused surrendered in court, and where in course of time put up for trial. 10. The case of the defence is that Smt. Chandrawati was not at home at all, but had gone to village Apsari at her sisters place. Accused Ram Piarey admitted having attacked Smt. Rajana, and said that on the relevant date and time Smt Rajana suddenly began to hurl filthy abuses at him while he implored Smt. Rajana not to do so, but Smt. Rajana went over the roof of her house, and continued hurling abuses when he was in the court-yard of his own house. He said that Smt. Rajana hurled a brick-bat at him, which resulted in a lacerated wound on his head, and continued hurling abuses, whereupon he climbed over the roof of his own house to desist her from hurling abuses, but she persisted. He added that he could not control himself, and picked up a Bank which was lying on the roof of Smt. Rajana, and delivered a few blows on her. He said that he did not know Km. Ramlali and Km. Jagdei received injuries. 11. The prosecution examined the two injured ladies, Km. Ramlali and Km. Jagdei (P. Ws. 9 & and 3), to prove the facts of case. Ambica (P. W. 1) is not an eye-witness, he simply proved the motive and the lodging of the F. I. R. on information given by the two ladies. 12. Constable I. H. Rizvi (P. W. 6) proved the recording of the F. I. R. and the registration of the case, Dr. J. N. Sarin (P. W. 4) proved the injuries on the person of the two ladies. Dr. J. N. Bajpai (P. W. 6) proved the result of post-mortem examination of Smt. Rajana, S. I. Sri Noor Mohammad (P. W. 7) spoke about the investigation of the crime. 13. The appellants examined Ram Nandan (P. W. 1) a neighbour, in their defence to show that Smt. Chandrawati was not there at all, that Ram Piarey attached in the course of the hurling of abuses by Smt. Rajana. 14. 13. The appellants examined Ram Nandan (P. W. 1) a neighbour, in their defence to show that Smt. Chandrawati was not there at all, that Ram Piarey attached in the course of the hurling of abuses by Smt. Rajana. 14. The learned Sessions Judge accepted the posecution evidence, did not rely upon the testimony of Ram Nandan (D. W. 1), and convicted and sen tenced the appellants and mentioned above. 15. Sri J. N. Chowdhary, learned counsel for the appellants, contend that the participation of Smt. Chandrawati in this offence is not satisfactorily borne out, and that Ram Pearey caused injuries to Smt. Rajana under grave and sudden provocation. He urged that Km. Jagdei received injury at the hands of Ram Pearey when she covered Smt. Rajana to protect her and urged that Km. Ramlali did not receive any injury at all on account of the attack, and may have received injuries by a fall. 16. Learned Assistant Government Advocate, Sri A. Banerji, says that the two prosecution witnesses are injured witnesses, and they have spoken about the attak made by both the appellant, and their testimony is good enough to establish the case against both of them. 17. On the material on record, we have doubts about the participation of Smt. Chandrawati in the commission of this offence. The F. I. R. by Ambica, based on information given by the two injured ladies, mentioned that when Smt. Rajana arrived home with a bundle of green fodder on her head, the appellants threw a brick-bat at her, hitting Smt. Rajana on her head Km. Ram Kali (P. W. 2) aged 11 years, did not state as to who of the two appellants threw the brick-bat at Smt. Rajana, but added that on the brick bat being thrown by the appellants, who were standing at their door, Smt. Rajana was bit at her forehead, which caused a pronounced swelling there. Km. Jagdei (P. W. 3) aged 7 or 8 years, however, specifically said that it was Smt. Chandrawati who threw the brick-bat causing hurt to Smt. Rajana on her forehead. The post-mortem examination, however, does not indicate any injury on Smt. Rajanas head or forehead ; indeed no contusion or lacerated wound was found on her body at all. The theory of throwing of brick-bat by Smt. Chandrawati, therefore, is not fit to be accepted. 18. The post-mortem examination, however, does not indicate any injury on Smt. Rajanas head or forehead ; indeed no contusion or lacerated wound was found on her body at all. The theory of throwing of brick-bat by Smt. Chandrawati, therefore, is not fit to be accepted. 18. The only other role assigned to Smt Chandrawati was an attack by her with a Gandasa on Km. Jagdei. Km. Jagdei, did sustain an incised wound 3 cm. X 3 cm. scalp deep on the middle of the head, but it is the specific case of the accused that the injury was sustained when Km. Jagdei covered Smt. Rajana when she was being attacked by Ram Pearey. This suggestion is amply borne out by the statement of Km. Ramlali (P. W. 3) to the investigating officer under Section 161, Cr. P. C. that she ran up to save her mother and her sister Km. Jagdei embraced her mother i. e. Smt. Rajana, P. W. 2 Km. Ram Lali also said that Smt. Chandrawati dragged her along back rubbing on the roof of the Kothri whereby she sustained abrasions on her back and legs. This is contradicted by her evidence because abrasions mere not found on her back or legs. 19. It is also the defence case that Smt. Chandrawati had gone to her sisters place in village Apsari and, therefore, was not present in the village on the date of the incident. P. W. 3 Km. Jagdei admitted that Chandrawati had come to this village from Apsari only on the previous day and went away after the marpit. P. W. 1 Ambika Prasad stated that after the commission of the offence Smt. Chandrawati went to her sisters village Apsari. This indicates that the theory of Chandrawatis going to Apsari is not entirely without some basis. It is noticeable that Ambica Prasad (P. W. 1) admitted that when after the commission of the offence both the appellants ran from the village, he chased them and when he reached about 29 or 25 steps beyond the village school, the 2 appellants were only 10 or 15 steps ahead of him. It is understandable that Ram Piarey may have made good his escape, but it is difficult to believe that Smt. Chandrawati could not have been captured in the chase at a short leeway of only 10 or 15 steps. 20. It is understandable that Ram Piarey may have made good his escape, but it is difficult to believe that Smt. Chandrawati could not have been captured in the chase at a short leeway of only 10 or 15 steps. 20. Further although the Investigating Officer claimed to have recovered a blood-stained Gandasa which Smt. Chandrawati is alleged to have used, he did not send it for chemical examination. 21. On a consideration of all the features attending upon Smt. Chandra watis role, we hold that the prosecution has not proved beyond reasonable doubt that she had participated in the commission of the offence. 22. The prosecution evidence in case against Ram Piarey appellant how ever seems to be well established. It is the common version of the injured pro secution witnesses as well as the accused Ram Piarey that when Smt. Rajana was at the roof of her house, Ram Piarey was in the courtyard of his own house. Assuming that Smt. Rajana hurled abuses at Ram Piarey from the roof of her house which enranged Ram Piarey, it is difficult to final any justification for Ram Piarey to climb to the roof of his own house and proceed further to the roof of Smt. Rajanas house and assault her with a Farsa. It is not said that Smt. Rajana was armed with any weapon which posed any threat to the person of Ram Piarey who was inside the courtyard of his house. Ram Piarey stated under Section 313, Cr. P. C. that Smt. Rajana hurled a brickbat at him, but the evidence on the record does not bear it out with any degree of probability. P. W. 3 Km. Jagdei stated that Ram Piarey arrived at the roof of the house carrying a Farsa and struck Smt. Rajana therewith. The weapon stated by the 2 eye-witnesses, namely the Farsa is corroborated by the medical evidence of Dr. J. N. Bajpai (P. W. 5 ). The learned counsel for the appellant has not been able to point to such definite and clear circumstances as to indicate that Ram Piarey had acted under the influence of a sudden and grave pro vocation. 23. J. N. Bajpai (P. W. 5 ). The learned counsel for the appellant has not been able to point to such definite and clear circumstances as to indicate that Ram Piarey had acted under the influence of a sudden and grave pro vocation. 23. The only benefit which the appellants can get out of the testimony of D. W. 1 Ram Nandan, is that the presence of Smt. Chandrawati at the time of the commission of the offence as alleged by the prosecution is disproved. He is certainty an independent witness whose house is situated at a distance of 30 steps from the houses of Ambika and appellant Ram Piarey. He stated that at about 1. 30 p. m. on the relevant day he heard Smt Rajana hurling dirty abuses at Ram Piarey and while Ram Piarey asked her not to abuse, the lady climbed over the roof from where also she continued to hurt abuses and threw a brick-bat into the house of Ram Piarey. The witness said that Ram Piarey then climbed over the roof and delivered 3 or 4 blows at Rajana with a Bank a hold in his hand. It is noticeable that he did not say that Ram Piarey picked-up the Banka from the roof of the house. The testimony of the prosecution witnesses therefore that Ram Piarey carried his own Banka from his own house, is acceptable. The testimoney of this defence wit ness does not bear out that appellant Ram Piarey acted under a sudden and grave provocation. 24. Taking a very careful view of the matter, we are of the opinion that while the offence of committing murder by appellant Ram Piarey and of causing simple hurt to Km. Ram Lali under Section 323, I. P. C. arc established, the offence of an attempt to commit murder of Jagdei under Section 307, I. P. C. is not fully made out. It is quite likely that Smt. Jagdei received an injury of the Farsa by Ram Piarey when the covered Smt. Rajana but since the causing of injury is attributed by the prosecution to Smt. Chandrawati, it would not be fair to convict Ram Piarey in connection with that act. Criminal Appeal No. 906 of 1982 is allowed in part. Criminal Appeal No. 1020 of 1982 is allowed. Criminal Appeal No. 161 of 1983 is dismissed. 25. Criminal Appeal No. 906 of 1982 is allowed in part. Criminal Appeal No. 1020 of 1982 is allowed. Criminal Appeal No. 161 of 1983 is dismissed. 25. Smt. Chandrawati is acquitted of the offences punishable under Section 302/34,i. P. C. and 307,i. P. C. She is on bail, her bail bonds are dis charged, and she need not surrender. 26. Appellant Ram Piareys conviction and sentences under Sections 302 and 323,i. P. C. are confirmed. He is in jail. He shall continue to serve out the sentences. Order accordingly. .