- (1.) NASEEMUDDIN, J. This appeal has been filed by Nawazish Ali S/o Bairam alias Bans Ali (2) Bhullan S/o Abdul Rauf (3) Sahaj Ram S/o Lautan (4) Ram Udit S/o Raja Ram, (5) Sukh Din S/o Banwari, (6) Surya Lal S/o Banwari, all residents of village Delwa, Police Station Malhipur, district Bahraich and by Nizamuddin S/o Pahelwan r/o village Maulivigan, Police Station Nanpara against the judgment and order dated 18-9-1980, passed by Sri K. D. Shahi, the then I Additional Sessions Judge, Bahraich in S. T No. 314 of 1978, whereby the appellants were convicted for the offences punishable under Sections 302/149 I. P. C. and were sentenced to un dergo imprisonment for life; appellant Nawazish Ali was further Convicted for the offence punishable under Section 148 I. P. C. and was sentenced for a term of 11/2 years R. I. ; and appellants Bhullan, Sahaj Ram, Ram Udit, Sukhdin, Surya Lal and Nizamuddin were further convicted for the offence punishable under Section 147 I. P. C. and were sentenced to undergo one year's R. I. each; all the appellants were further convicted under Sections 323/149 I. P. C. and were sentenced to undergo 11/2 years R. I. each. All the sentences were ordered to run concurrently.
(2.) ACCORDING to the prosecution an occurrence took place in village Ghumni Police Station Malhipur on 4- 4-76 at about 3 p. m. of which F. I. R. was lodged the same day at 8. 30 p. m. at PS. Malhipur by P. W. 1 Gauhar Ali. A case was registered at the Police Station Malhipur and was inves tigated by P. W. 6 O. P. Tripathi, S. O. Mal hipur and charge sheet was submitted. Syed Ali alias Monkey succumbed to his injuries. Gauhar Ali P. W. 1 and Moham mad Yunus P. W. 3 also suffered injuries. ACCORDING to P. W. 1 Gauhar Ali the case of the prosecution is that Gauhar Ali alongwith Syed Ali @ Monkey has 26 Bigha land in village Ghumni. That there was litigation in respect of this land in between P. W. 1 and Syed Ali alias Monkey on the one hand and Bans Ali alias Bairam, father of Nawazish Ali, appellant and Bhullan appellant on the other hand. Bhullan and Nawazish Ali are the first cousins, and Nizamuddin, appellant is the Bhanja of Nawazish Ali, appellant. The other appellants were alleged to be the helpers- of each other as they carry on food grain business in co-operation with each other. Syed Ali was the nephew of P. W. 1 Gauhar Ali and Mohammad Yunus P. W. 3 and Mohammad Idris are the Bhanjas of Gauhar Ali. Except Nizamuddin all the parties to the case reside in village Delwa, whereas Nizamuddin resides in vil lage Maulvi Gaon under another Police Station. Village Ghumni is about 2 miles north of village Delwa and there is 50 Bighas of other land in village Ghumni belonging to P. W. 1. On 4-4-76 at about 3 p. m. while P. W. 1 Gauhar Ali, his nephew Syed Ali @ Monkey and P. W. 3 Moham mad Yunus, Bhanja of P. W. 1, were harvest ing the crop of Arhar, then Nawazish Ali armed with a Ballam and other appellants armed with Lathis came there, and at the exhortation of Nawazish Ali asked the other appellants to kill these persons. All the appellants started causing hurt by means of their weapons to P. W. 1, P. W. 3 and Monkey. That Monkey ran towards the field of Masood Ali but he was chased by all the appellants and Nawazish Ali appellant stabbed Monkey by means of spear (Ballam) in the ankle due to which Monkey fell down and the appellants caused hurt to him thereafter also. That on alarm and cries P. W. 2 Kandhai Lal and D. W. 1 Chongey. Narayan and Sunder alias Kenu came there and saw the occurrence. It was further stated that all the appellants ran away towards south. P. W. 1 went to his village to bring a bullock cart. In the village Idris told him that all these seven appel lants had also caused hurt to Idris in the Khalihan at 2. 15 p. m. the same day and Idris had also suffered injuries. Bullock cart was taken to village Ghumni, Monkey the injured was put into the bullock cart. P. W. 1 and P. W. 3 had also suffered injuries. Akbar Ali, brother of P. W. 1 was also taken alongwith them and all these persons started for the Police Station. That the condition of Monkey deteriorated on the way to the Police Station and so the bul lock cart was diverted to hospital Mal hipur. That near the hospital Monkey suc cumbed to his injuries and the doctor was called to examine him, but he declared Monkey dead. Akbar was left with the dead body. Idris, Yunus and P. W. 1 got an F. I. R. Ext. Ka 1 scribed from the Ibrahim Munshi and the same was handed over at the Police Station. The three injured, namely, Younus, Gauhar and Idris were sent for medical examination by the Police P. W 1 stated further that the witnesses Chongey and Sunder have been cultivating the fields of Nawazish Ali and had colluded with the appellants. P. W. 6 Om Prakash Tripathi, S. O. , who investigated the case proved the lodg ing of the EI. R. (Ex. Ka. 1) and prepara tion of its Chik (Ext. Ka. 6) by Fauj Dar Singh, Constable Moharrir, and registering of the case (Ext. Ka 7) and also proved the inquest report (Ext. Ka. 8) sketch of the dead body (Ext. Ka. 9) and Challan of dead body (Ext. Ka. 10 ). Thedead body was sent alongwith the papers through Con stable 429 Qazi Tauhid* Hussain for post mortem to the Headquarters Bahraich. Thereafter the Investigating Officer in spected the spot and also went to village Delva and recorded the statements of the witnesses Kanhai and Narayan etc. He also prepared the spot map of place of occur rence (Ext. Ka. 11) and also took from the spot blood stained and simple earth from the plot of Masood Ali and prepared its memo (Ext. Ka. 12) P. W. 6 also recovered 21 bundles of harvested Arhar crop from the field of P. W. 1 and prepared its Memo (Ext. Ka. 13) and gave the crop into the custody of P. W. 1. The clothes were sent for chemical examination, Charge sheet (Ext. Ka. 14) was submitted. The appellants were charged with the above offences to which they pleaded not guilty and alleged false implication due to enmity and gave possibility that all the injured might have been caused hurt in Nepal, the border of which is adjacent to the plots of occurrence of village Ghumni. Monkey was alleged to be a criminal.
(3.) IN defence papers were filed and one of the witnesses named in the F. I. R. was also examined in defence as D. W. 1 Chonge by the accused persons. Prosecution examined P. W. 1 Gauhar Ali, P. W. 2 Kandhai Lal and P. W. 3 Mohammad Yunus on the factum of oc currence. P. W. 4 Dr. M. Shamim and P. W. 5 Dr. Irshad Ali were examinee1 to prove the post- mortem and injury reports and P. W. 6 is the Investigating Officer who had inves tigated the case.;