The appellant was employed in the Cooper Alien Mills at Kanpur and he was occupying one of the quarters in a settlement meant for the labouring classes known as the Allenganj Settlement.On 25-4-1957 when most of the menfolk residing there had gone away to the Mills to attend to their duties the appellant, it is said, came out of his quarters at about 7 A.M. armed with a Gandasa.It is said that Sarju Prasad P.W. 2 who was living with his brother in the Allenganj Settlement was sitting on his bed in front of his house when Rustam Ali came and struck him from behind with the Gandasa.Sarju Prasad tried to struggle for his safety but he was given several blows with the Gandasa in the meantime.Rustam Ali then ran away towards the north leaving Sarju Prasad there.It is further said that Om Prakash the son of Dhani Ram who was sitting on a cot in front of quarter No. 40/15 of his father was given Gandasa blow by Rustam Ali who thereafter ran away further north.During the process of arrest, and subsequently as well, injuries had been inflicted on Rustam Ali by the persons who had assembled there out of natural revolt engendered by the enormity of the crime committed by him.The emergency squad of the police was in the meantime informed by some one.Rustam Ali was handed over to the police and was taken to the hospital where he was attended to for his injuries.JUDGMENT D.N. Roy, J.This is an appeal by Rustam Ali who has been convicted under Section 302, I.P.C. for the murder of Om Prakash, son of Dhani Ram, aged about" four years, and sentenced to death; and who has also been convicted under Section 307 for a brutal attack onSarju Prasad with the intention of killing him and has been sentenced to three years' rigorous imprisonment.The report of the occurrence was made at the police station by Mustaq Ali at 7-35 A.M. Mus-taq Ali is also employed in the Cooper Alien Mills and he had rushed to the place of occurrence on hearing the alarm of the people who had taken part in overpowering the accused.After the report was made the investigation of the case was taken up by Sub-Inspector Mohammad Sultan, the Second Officer of police station Nawabganj at the instance of Sub-Inspector Chandrapal Singh the Station Officer of that place.Sarju Prasad and Om Prakash were both hurried to the hospital soon after their receiving the injuries, Sarju Prasad's injuries were examined by Dr. D. S. Kapoor, P.W. 19, and the following injuries were found on his person :Incised would 4 1/2" by 1 3/4" muscle deep, On the posterior lateral aspect of the middle 1/3 of the left thigh, directed obliquely and internally and posteriorly.Incised wound, 1" by 1/2", muscle deep, on the left calf, posterior aspect, 5" below the knee.Incised wound 1/4" by 1/3", skin deep, over the knuckle of right index finger.Incised wound 3" by 1", bone deep, over the posterior aspect of head, transversely placed, slightly curved, lower flap sliced down.Incised wound, 2 1/4" by 1", muscle deep, and muscle cut on the left side of the neck 3" below the car of left side passing backwards.The injuries of Om Prakash son of Dhani Ram were examined by Dr. Sharda Prasad (P.W. 18).An incised wound 3 1/2" x 1/2" x 1 1/2" deep, below the occiput, on the back portion of the neck2" to the right and 1 1/2" to the left of the mid-line of the neck, was found.In spite of medical aid Om Prakash did not survive and he died at the hospital on the same date at 12-30 P.M. His body was sent for post mortem examination, which was conducted on that very day at the mortuary at 5-30 p.m. The post mortem examination revealed an incised wound 3 1/2" x 1" bone deep on the back of the neck, middle third, cutting the fourth cervical vertebra and injuring the spinal cord partially.Dr. D. P. Gupta was of opinion that death was' caused by shock due to the injury to the spinal cord in the cervical region.When the first information report was lodged by Mustaq Ali P.W. 1 at the police station, the gandasa recovered from the accused, namely, Ex. 1, was handed over there.At the police station it was sealed up by the Head Constable after the recovery memo, had been prepared.This gandasa was sent to the Chemical Examiner and to the Serologist to Government, and it was found to contain human blood.The accused denied the allegations made against him.He denied that he attacked Sarju Prasad and Om Prakash, son of Dhani Ram.He denied that the gandasa Ex. I belonged to him, or that it was taken away from him when he was overpowered.He did not state anything as to how he was arrested and by whom.It may be stated here that on an earlier occasion when the case came up before the learned Sessions Judge for trial, it was contended on behalf of the accused that he was of unsound mind and incapable of making his defence.An inquiry was therefore conducted in respect of that allegation.The Superintendent of that Hospital later on certified in December 1958 that Rustam Ali was then in a fit condition to stand his trial.He was thereafter transferred to Kanpur Jail and the trial was held.The defence that was taken by the accused in the Court of Sessions was that by reason of unsoundness of mind at the time of the alleged commission of the offence he was incapable of knowing the nature of the act and that what he was doing was contrary to law and, therefore, his act was protected under Section 84, I.P.C. To support that plea it was contended on behalf of Rustam Ali that he used to beat his wife and also used to lock her up inside the quarters when he used to go out for works; that he was of an eccentric type; that off and on he raised objections in the factory where he was employed about the quantity of work that was given to him; and that the very fact that he attacked a number of persons just about the timewhen Sarju Prasad and Om Prakash had been assaulted, affords proof of the circumstance that his mind was unhinged.The fact that Sarju Prasad P.W. 2 and Om Prakash son of Dhani Ham had been attacked by the appellant with the gandasa Ext. 1 on the morning of 25-4-1957 at the respective places stated above and that Om Prakash son of Dhani Ram died as a result of the injury received by him on the same date at the hospital at 12-50 p.m. admits of no doubt whatsoever.That was conclusively proved by the medical evidence referred to above and by the eye-witnesses.The first incident relating to Sarju Prasad was testified to not only be Sarju Prasad who was the victim of the assault, but by two other witnesses, Smt. Sunder P.W. 4 and Smt. Rabia P.W. 7, Smt. Sunder is the wife of Sarju Prasad's brother, who had gone out to work.Sunder was inside the house and she came out when she heard Sarju Prasad and Rabia shouting for help.She deposed that she saw Rustam All striking Sarju Prasad with the gandasa.Smt. Rabia resides in one of the neighbouring quarters.She stated that she saw Rustam Ali passing by her quarters.She inquired from him as to why he had not gone to his work, and Rustam Ali told her that he had taken leave for the day.Rustam Ali then took an onward course and Smt. Rabia applied herself to her own work.She then heard the cries of Sarju and, when she raised her head, she found Rustam.She also raised cries.Sarju fell down and became unconscious.The two ladies lifted up Sarju who was sent to the hospital.The statements of these three witnesses fully established the fact that it was Rustam Ali who attacked Sarju Prasad.There was nothing on the record to suggest or to show that these three witnesses had any motive to implicate the accused falsely.With respect to the second incident we have the statement of three witnesses, Lakshmi (P.W. 10), Ram Pyari (P.W. 11) and Dhani Ram (P.W. 16).Ram Pyari and Dhani Ram are the parents of Om Prakash; and Smt. Lakshmi is the wife of one Hem Nath who was residing in the adjoining quarters.All the three witnesses were inside their respective quarters.Smt. Lakshmi heard some noise outside and she came out to see what the matter was and she saw that Rustam Ali was running with a Gandasa in his hand from the side of Sarju Prasad's quarters.At that time Om Prakash the son of Dhani Ram was sitting over the cot in front of his quarter.Om Prakash was getting into the house when he was alerted and asked by his parents to do so, but before he could get inside the house, Rustam Ali struck him with the Gandasa.Om Prakash was rushed to the hospital and in spite of medical aid he expired at the hospital on the same day at about 12-50 P.M. There was nothing on the record to raise any semblance of doubt about the truth of the matter deposed to by these two witnesses.We have already said that in the process of apprehension, and immediately afterwards, those who apprehended him and those who had gathered at the spot made an attack at Rustam Ali obviously on account of the enormity of the offence and the reckless way in which the accused had attacked innocent persons.Mushtaq Ali (P.W. 1) who was one of the persons who had arrested the accused was quite an independent witness.He showed great couragein apprehending the accused.Rustam Ali had no explanation to give as to how he was arrested and when.From what we have said above there is no reason to disbelieve the prosecution evidence relating to the two incidents.That evidence fully established that it was Rustam Ali who made a murderous attack on Om Prakash with the Gandasa' Ex. 1 which resulted in the death of Om Prakash and he also made a murderous attack on Sarju Prasad witness but Sarju Prasad luckily escaped death.The plea raised by the accused, that he is entitled to the protection under Section 84, I.P.C., was, in our opinion, rightly rejected by the learned Sessions Judge.There was no doubt the evidence of Smt. Sunder (P.W. 4) that Rustam Ali used to lock up his wife and children inside his house when housed to go out for work.There was the further evidence of Smt. Ram Pyari (P. W. 11) who stated that Rustam Ali used to quarrel with his wife and to beat her.The attack on Om Prakash son of Dhani Ram was unprovoked; so was the attack on Sarju Prasad.

Sections cited: Section 465 in The Indian Penal Code, Section 307 in The Indian Penal Code